The opinion of the court was delivered by: MARY LITTLE PARELL
Defendant Vernon Lewis objected to the recommendation of the Probation Office that he be sentenced as a career offender pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 4B1.1. For the following reasons, the Court overruled the objection. The Judgment and Commitment Order containing the sentence was filed on July 21, 1994 and the defendant has appealed.
The following pertinent facts appear in the undisputed portions of the Presentence Investigation Report.
In this case, on January 24, 1994, defendant entered a plea of guilty to Count Two of a two-count Indictment, each count of which charged him with a separate bank robbery in violation of 18 U.S.C. § 2113 (a) . The offense charged in Count Two was a robbery at the First Fidelity Bank in North Brunswick, New Jersey on August 17, 1993, in which defendant handed a note to a teller and demanded cash, which he obtained in the amount of $ 3,126. The parties do not dispute that his related conduct, consisting of a similar bank robbery committed approximately one week earlier, on August 11, 1993 at National Westminster Bank in Perth Amboy, New Jersey in the amount of $ 855, is considered to be Relevant Conduct under Guideline § 1B1.3.
Defendant has a lengthy history of prior criminal convictions. The Presentence Report indicates that at age 45 he has twelve adult felony convictions, six of which were for robbery or armed robbery. His adult parole was revoked eight times as a result of new criminal convictions or failure to abide by parole conditions. Defendant's juvenile history includes seven offenses, two of which were similar to the present robbery offenses.
The career offender provision of the Guidelines, U.S.S.G. § 4B1.1, provides in pertinent part as follows:
A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
A career offender's criminal history category under the Guidelines is automatically category VI, and the offender's offense level is also often increased. See U.S.S.G. § 4B1.1. Defendant in this case is subject to both of those effects if he is sentenced as a career offender. If one or both of those convictions or the events underlying them were not taken into account in this sentencing, defendant's sentencing range under the Guidelines would be substantially lower.
The Presentence Report indicates that Lewis qualifies as a career offender because (1) he was at least eighteen years old at the time of the instant offense; (2) the instant offense is a felony which is a crime of violence"; and (3) he has at least two prior felony convictions for crimes of violence.
The identified qualifying convictions, all in New Jersey state courts, were as follows:
(1) He pled guilty in April, 1978 to two counts each of robbery, and crime while armed, arising out of two separate grocery store robberies committed in November, 1977, resulting in a 10-year concurrent sentence ["the 1978 Robbery Conviction"];
(2) He pled guilty in December, 1981 to second degree robbery ["the 1981 Robbery Conviction"], arising out of his participation in a bank robbery on July 24, 1981, and was sentenced in February, 1982 to 10 years' imprisonment, concurrent with the sentence for the offense described immediately below;
(3) He pled guilty in December, 1981 to armed robbery ["the 1981 Armed Robbery Conviction"], arising out of his robbery of a grocery store in November, 1981, and was sentenced in February, 1982 to 20 years' imprisonment, concurrent with the sentence for the 1981 Robbery Conviction, above.
Any two of these convictions would suffice to classify Lewis as a career offender. None of these convictions has been ruled invalid, nor does it appear that they were challenged on direct appeal or on petition for habeas corpus.
Lewis does not challenge the 1981 Robbery Conviction, but he does seek to attack the 1978 Robbery Conviction and the 1981 Armed Robbery Conviction for present sentencing purposes. Lewis claims that the 1978 conviction was constitutionally invalid because it was obtained in violation of his rights under Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969), in that the court receiving that plea did not fully notify him of the constitutional rights he was waiving by pleading guilty. Also, defendant would seek to establish that the 1981 Armed Robbery Conviction was constitutionally invalid because there was not a sufficient factual basis to support the charge that the offense qualified as an "armed robbery" under then-current state law. It is undisputed that defendant was represented by court-appointed counsel in the cases that led to both of those challenged convictions.
This Court, in determining the sentence in this case, must first decide whether it has the authority to consider the collateral attacks on prior convictions which are asserted by defendant. It should be noted at the outset that the particular issue presented here is not likely to arise in most future cases, because of Guideline revisions effective November 1, 1993, which are discussed below. Defendant claims that the pre-revision version of the Guidelines which was in effect in August, 1993 at the time of the instant offense is more favorable to him, and accordingly it should be applied in order to avoid a deprivation of his rights under the Ex Post Facto Clause of the Constitution. It is clear that if defendant is correct that the earlier version of the Guidelines is more favorable, he is entitled to the benefit of that version. See United States v. Cherry, 10 F.3d 1003, 1014 (3d Cir. 1993); United States v. Seligsohn, 981 F.2d 1418, 1424 (3d Cir. 1992) (both citing United States v. Kopp, 951 F.2d 521, 526 (3d Cir. 1991) (where guidelines in effect at the time of sentencing impose a harsher penalty than an earlier version of the guidelines in effect at the time of the crime, the sentencing courts must apply the earlier version)). However, this Court does not agree that the earlier version was more favorable, in light of recent developments, for reasons which are explained below.
It is settled law in the Third Circuit that courts must sentence qualified defendants pursuant to the career offender provisions of the Guidelines. United States v. Thomas, 961 F.2d 1110, 1122 (3d Cir. 1992); United States v. Shoupe, 929 F.2d 116, 119 (3d Cir.), cert. denied, 116 L. Ed. 2d 333, U.S. , 112 S. Ct. 382 (1991) . The government bears the burden of proving that a defendant qualifies as a career offender. United States v. Parson, 955 F.2d 858, 871 (3d Cir. 1992) . Once the government satisfies its burden, the defendant bears the burden of establishing by a preponderance of the evidence that the predicate prior convictions are constitutionally invalid. United States v. Stewart, 977 F.2d 81, 85 (3d Cir. 1992), cert. denied, U.S. , 113 S. Ct. 1433 (1993) . The constitutionality of this allocation of the burden of proof under a state sentencing enhancement statute similar to § 4B1.1 was upheld by the Supreme Court in Parke v. Raley, 121 L. Ed. 2d 391, U.S. , 113 S. Ct. 517 (1992).
The sentencing court must make a threshold determination whether it has the authority to permit the assertion of a collateral attack in a given case. See, e.g., United States v. Brown, 991 F.2d 1162 (3d Cir. 1993) . The Supreme Court has recently rendered its decision in Custis v. United States, 128 L. Ed. 2d 517, U.S. , 114 S. Ct. 1732 (1994), which bears upon the issues in this case both directly and indirectly. There the majority held, inter alia, in an opinion delivered by Chief Justice Rehnquist, that the Constitution does not confer a right of collateral attack upon prior convictions used for sentence enhancement unless there was a failure to appoint counsel for an indigent defendant or lack of a knowing and voluntary waiver of counsel, in violation of the Sixth Amendment right to counsel as defined in Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d ...