The opinion of the court was delivered by: HOWARD MUNSON, Senior District Judge
On Friday April 2, 2004, the court sentenced defendant Patricia Boots
to a one year and one day term of incarceration pursuant to a plea
agreement she entered on January 23, 2003, to Count One of Indictment
5:03-CR-9, which charged her with the felony offense of conspiracy to
distribute, possess with intent to distribute, and to aid and abet the
distribution of marijuana in violation of 21 U.S.C. § 841(a) and 846.
Prior to sentencing, Ms. Boots objected to her Presentence Investigation
Report ("Report") and more specifically her criminal history calculation.
At sentencing, the court explained that it agreed with the Report's
criminal history points calculation and its criminal history category of II under the United States Sentencing Guidelines ("USSG").
The court writes sua sponte to more fully explain its adoption of the
Report's computations and determinations.
Ms. Boots was arrested January 12, 2002, for conduct that forms the
basis of the charges in the Indictment. She was subsequently released
March 7, 2002, on a personal Recognizance Bond. The Report concludes that
Ms. Boots has a criminal history category of II based upon a tally of
three criminal history points. Previously, on November 19, 1998, Ms.
Boots was charged with Criminal Possession of a Controlled Substance, a
misdemeanor, in Fort Covington, New York. On November 15, 1998, she was a
passenger in a car that slid off of a road, which caused her to lose
consciousness and sustain injuries to her sternum, legs and shoulders.
She was thereafter taken to the hospital. On November 19, 1998, she went
to the Akwesasne Tribal Police Department to retrieve her jacket that was
recovered at the scene of the automobile accident. At that time, she was
charged with possession of cocaine that was found in her jacket pocket
and placed under arrest. On March 22, 1999, she pled guilty to Criminal
Possession of a Controlled Substance, and on April 13, 2000, she appeared
in Fort Covington Town Court before Magistrate Jerome Brockway for
sentencing. Ms. Boots requested the assistance of counsel, but Magistrate
Brockway assured her that none would be necessary if she pled guilty to
the misdemeanor, for he would impose a sentence of probation. Ms. Boots
pled guilty, and she received a sentence of three years' probation and a
$60 fine. Ms. Boots was not represented by counsel at this initial
sentencing. Ms. Boots, however, subsequently violated the terms of her
probation. Specifically, she failed to comply with the terms of two drug
treatment programs, and on March 7, 2002, her probation was revoked, and
she was resentenced to 180 days imprisonment and a $70 fine. Again, Ms.
Boots was not represented at sentencing. Ms. Boots committed the instant
offense while serving her initial sentence of probation for the 1998
offense. Ms. Boots argued that because her conviction and subsequent
incarceration occurred without benefit of counsel, the three points scored in her Report's criminal history
category should be rejected by the court.
While Ms. Boots acknowledged that a local court need not generally
provide counsel to an indigent defendant where it does not intend to
impose a sentence of incarceration, she argued that her uncounseled
decision to plead guilty was constitutionally invalid due to the weakness
of the case and her physical condition at the time of her plea. More
significantly, however, Ms. Boots argued that the three point criminal
history tally, based as it is in part upon the fact that the instant
offense occurred while she was under a criminal justice sentence, see
USSG § 4A1.1 (d), was invalid under the holding in United States v.
Ortega, 94 F.3d 764 (2d Cir. 1996). Ms. Boots argued that because her
probation was revoked and she was re-sentenced to six months in jail for
violating probation after she had initially pled guilty without benefit
of counsel, the court could not permit her criminal history category of
II to stand. The court, however, disagrees with Ms. Boots' interpretation
of Ortega and the relevance of its holding to her criminal history
In Ortega, defendants challenged the district court's calculation of
their sentences under the USSG arguing, inter alia, that the district
court incorrectly calculated their criminal history categories by
considering prior misdemeanor convictions obtained in violation of their
Sixth Amendment right to counsel. Id. at 765. They alleged that the
district court violated their Sixth Amendment right to counsel by
assessing criminal history points for prior uncounseled state court
misdemeanor convictions. Co-defendants Jose Ortega and Jesus Mancinas
argued that their state court convictions were invalid under Scott v.
Illinois, 440 U.S. 367, 373-74, 99 S.Ct. 1158, 1162, 59 L.Ed.2d 383
(1979), because they resulted in sentences of probation and suspended
sentences of imprisonment. In calculating Mancinas' criminal history
category, the district court assessed one criminal history point for a
1992 conviction for disorderly conduct, a misdemeanor under Vermont law. Mancinas had pled guilty to disorderly conduct in a state court
proceeding at which he had requested and was denied the assistance of
counsel. The state court imposed a zero to sixty day suspended sentence
and placed defendant on probation. Seven months later, however, Mancinas
was convicted of driving while intoxicated ("DWI") in violation of
Vermont law. Because Mancinas' DWI conviction violated the terms of his
probation, the state court, following a hearing at which defendant was
represented by counsel, revoked his probation and ordered him to serve
thirty days of the previously suspended sentence. Ortega. 94 F.3d at
766. In recognition of the sentence of thirty days' imprisonment, the
district court, assessed a criminal history point for the disorderly
conduct conviction because it satisfied USSG § 4A1.2(c)(1)(A), which
excludes, among other offenses, disorderly conduct except where a term of
imprisonment of at least thirty days is imposed. Id. at 770. Absent the
sentence of thirty days imprisonment, however, the district court could
not have counted the disorderly conduct conviction because it is one of
the offenses listed under USSG § 4A1.2(c)(1) that are excluded unless the
sentence was for a term of probation of at least one year or a term of
imprisonment of at least thirty days. See id.
"An indigent defendant on trial for a misdemeanor offense is not
categorically entitled to the assistance of court-appointed counsel.
Rather, `the Sixth and Fourteenth Amendments to the United States
Constitution require only that no indigent criminal defendant be
sentenced to a term of imprisonment unless the State has afforded him the
right to counsel in his defense.'" Ortega, 94 F.3d at 769 (quoting
Scott, 440 U.S. at 373-74). "Furthermore, although a criminal defendant
enjoys the right not to have a conviction obtained in violation of his
right to counsel used for sentence enhancement purposes in a subsequent
proceeding,' an uncounseled conviction under Scott may be relied upon to
enhance the sentence for a subsequent offense.'" Ortega, 94 F.3d at 769
(quoting Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 1927,
128 L.Ed.2d 745 (1994)).
The USSG measure the seriousness of a prior offense by reference to the
severity of the sentence imposed. The criminal history points Ms. Boots challenges
result from a prior conviction for Criminal Possession of a Controlled
Substance, which, as counted in the Report, earned her a sentence of
probation. As relevant here, USSG § 4A1.1(c) directs the district
court to add one point for each prior sentence not counted in subsections
(a) or (b).*fn1 While section 4A1.2(c)(1) provides an exception to this
rule, specifying that certain offenses "and offenses similar to them"
will not be counted unless "(A) the sentence [therefor] was a term of
probation of at least one year or a term of imprisonment of at least
thirty days, or (B) the prior offense was similar to an instant offense
[for which sentence is to be imposed]," Ms. Boots' prior conviction is
not among the offenses listed; therefore, she received one point toward
her Criminal History Category. In addition, Ms. Boots was under probation
at the time of her arrest for the instant offense, which pursuant to USSG
§ 4A1.1(d)*fn2 adds two points to her Criminal History Category
Ms. Boots' reliance upon Ortega is misplaced, for it is easily
distinguished. In Ortega, had defendant not violated his probation, the
underlying state court offense would not have been counted in the
computation of his federal criminal history category because disorderly
conduct is among those excluded offenses listed by USSG § 4A1.2(c)(1).
There the district court assessed one point not because of Mancinas'
excluded sentence of probation for disorderly conduct, but rather for the
term of imprisonment he received subsequent to the revocation of his
probation, which satisfied § 4A1.2(c)(1)(A). The Second Circuit held that
regardless of whether defendant's sentence of imprisonment upon
revocation of probation was constitutional under Scott, it did not
warrant a criminal history point under the USSG. The commentary to §
4A1.2(c) states that "[p]rior sentences, not otherwise excluded, are to
be counted in the criminal history score, including uncounseled misdemeanor sentences where imprisonment was not imposed."
Ortega, 94 F.3d at 770. "Although this provision does not expressly
exclude uncounseled misdemeanor sentences in which imprisonment was
imposed, the interpretive maxim expressio unius est exclusio alterius,
coupled with the constitutional problems raised by such sentences
convinces us that § 4A 1.2 excludes from criminal history computations
all uncounseled misdemeanor sentences of imprisonment, including those
imposed after the revocation of a defendant's probation." Id. at 770-71
(emphasis added). Ortega, makes no such holding as to uncounseled
misdemeanor sentences of probation.
Significantly, it appears that the Report's computation of Ms. Boots'
Criminal History Category was limited to: (1) one point for her sentence
of probation for Criminal Possession of a Controlled Substance, an
non-excludable offense, and (2) two points for committing the instant
offense while still serving probation for the previous state offense.
Thus, the Report properly arrives at a criminal history category of II.
As stated above, "although a criminal defendant enjoys the right not to
have a conviction obtained in violation of his right to counsel used for
sentence enhancement purposes in a subsequent proceeding, `an uncounseled
conviction under Scott may be relied upon to enhance the sentence for a
subsequent offense.'" Ortega, 94 F.3d at 769 (quoting Nichols,
511 U.S. 738, 114 S.Ct. at 1927, 128 L.Ed.2d 745). Moreover, when a
misdemeanor defendant is sentenced to a term of probation and no jail
term is imposed, no right to counsel attaches and the uncounseled
conviction may be counted in determining the defendant's criminal ...