United States v. Grundy , 178 F. App'x 509 ( 2006 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0281n.06
Filed: April 27, 2006
NO. 03-6435
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) EASTERN DISTRICT OF
RALPH GRUNDY ) KENTUCKY
)
) OPINION
Defendant-Appellant. )
Before: DAUGHTREY and McKEAGUE, Circuit Judges, and McCALLA,* District
Judge.
McCalla, District Judge. The defendant-appellant, Ralph Grundy, appeals his
sentence of sixty months’ imprisonment imposed by the district court following his plea
of guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1)
and conspiracy to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§
846 and 841(a)(1). Grundy raises four issues on appeal: (1) the district court engaged
in unconstitutional fact-finding and improperly increased Grundy’s sentence based on its
determination that the gun involved in the offense was stolen; (2) the district court
*
The Hon. Jon P. McCalla, United States District Judge for the Western District of Tennessee,
sitting by designation.
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engaged in unconstitutional fact-finding and improperly increased Grundy’s sentence
based on its determination that Grundy’s prior felony conviction qualified as a crime of
violence; (3) the district court improperly included three points in Grundy’s criminal
history score for a prior conviction of driving without insurance, for which Grundy
received a conditionally-discharged fine; and (4) Grundy was sentenced in violation of a
separate, unwritten plea agreement with the government.
For the reasons set forth below, Grundy’s sentence is AFFIRMED.
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 18, 2003, in the Eastern District of Kentucky, the defendant-appellant
Ralph Grundy entered a plea of guilty, pursuant to a plea agreement, on two counts: (1)
being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1); and (2)
conspiracy to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§ 846
and 841(a)(1).
At sentencing, the district court assigned a base offense level of 20 on the felon-
in-possession count under United States Sentencing Guidelines (“U.S.S.G.”) §
2K2.1(a)(4)(A) because Grundy committed the offense subsequent to sustaining a
felony conviction for a crime of violence. The district court increased the base offense
level by two points under U.S.S.G. § 2K2.1(b)(4) because the firearm involved in the
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offense was stolen. The district court also assigned seven criminal history points,
including one point for a prior conviction for driving without insurance and two points for
having committed the instant offense while on probation for that prior conviction. The
court granted the government’s substantial assistance downward departure motion
pursuant to U.S.S.G. § 5K1.1, which resulted in a final offense level of 21 and a
guidelines range of 57 to 71 months’ imprisonment. Under 21 U.S.C. § 841(b)(1)(B),
the mandatory minimum term of imprisonment for the drug conspiracy count is five
years (60 months). The district court sentenced Grundy to sixty months of
imprisonment on each count, to be served concurrently.
II. DISCUSSION
A.
Grundy first argues that he was sentenced in violation of the principles articulated
in Blakely v. Washington, 542 U.S. 296 (2004). Specifically, he contends that the
district court improperly increased his sentence based on the fact that the gun involved
was stolen, a fact to which Grundy did not admit. Because Grundy did not raise this
issue before the lower court, we review his argument on appeal for plain error. United
States v. Oliver, 397 F.3d 369, 378 (6th Cir. 2005).
After Grundy was sentenced, the Supreme Court held in United States v. Booker,
543 U.S. 220 (2005), that “[a]ny fact (other than a prior conviction) which is necessary to
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support a sentence exceeding the maximum authorized by the facts established by a
plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury
beyond a reasonable doubt.” 543 U.S. at 244. Under Booker, the district court plainly
erred by applying a sentencing enhancement on the basis of facts found by the judge,
and normally we would vacate Grundy’s sentence and remand for resentencing. See
United States v. Jackson, 401 F.3d 747, 750 (6th Cir. 2005). In this case, however,
Grundy received concurrent sentences of sixty months’ imprisonment on both the felon-
in-possession and conspiracy counts. He is subject to a statutory minimum sentence of
sixty months’ imprisonment on the conspiracy count pursuant to 21 U.S.C. §
841(b)(1)(B). Thus, even if we were to remand this matter to the district court, Grundy’s
sentence would not change. See United States v. Goliday, 145 Fed. Appx. 502, 507
(6th Cir. June 8, 2005). Accordingly, we decline to remand for resentencing under
Booker.
B.
The Sentencing Guidelines set a base offense level of 14 for felon-in-possession
convictions under 18 U.S.C. § 922(g)(1). U.S.S.G. § 2K2.1(a)(6). If, however, “the
defendant committed any part of the instant offense subsequent to sustaining one
felony conviction of . . . a crime of violence[,]” the Guidelines provide for a base offense
level of 20 under § 2K2.1(a)(4)(A). Grundy raises two challenges on appeal to the
enhancement of his sentence under U.S.S.G. § 2K2.1(a)(4)(A). First, he argues that
the district court engaged in unconstitutional fact-finding by determining that his prior
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conviction constituted a crime of violence. Second, he contends that because the use
of physical force is not an element of the prior offense of which he was convicted, the
district court erred in finding that his prior offense was a “crime of violence” as that term
is defined under the Sentencing Guidelines. Both arguments are without merit.
As noted above, Booker requires that any fact “other than a prior conviction”
necessary to support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty be admitted by the defendant or proven to a jury. 543
U.S. at 244. As we have previously held, “certain aspects of the character of prior
convictions are so basic as to be implicit in the fact of a prior conviction” – including the
determination of whether a “prior conviction was for a crime of violence.” United States
v. Hollingsworth, 414 F.3d 621, 624 (6th Cir. 2005)(finding no Sixth Amendment
violation where district court determined that defendant’s prior conviction was for a
crime of violence under the Guidelines). It is “squarely within the province of the
sentencing judge” to determine whether a defendant’s prior conviction constitutes a
“crime of violence” within the meaning of the Guidelines Id. at 624. Accordingly, the
district court did not err in determining that Grundy’s prior conviction constituted a crime
of violence.
Grundy also challenges the district court’s finding that his prior conviction for
sexual abuse meets the Guideline’s definition of a “crime of violence.” We review the
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district court’s interpretation of the Sentencing Guidelines de novo. United States v.
Arnold, 58 F.3d 1117, 1120 (6th Cir. 1995). Under U.S.S.G. § 4B1.2(a), a “crime of
violence” is defined as:
any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that --
(1) has as an element the use, attempted use, or threatened use
of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.
U.S.S.G. § 4B1.2(a). In 1992, Grundy was convicted of First Degree Sexual Abuse for
having sexual contact with a person less than twelve years old in violation of Kentucky
law. Specifically, a jury found Grundy guilty of violating Kentucky Revised Statute
510.110, which provides that a person is guilty of sexual abuse in the first degree when:
(a) He subjects another person to sexual contact by forcible compulsion;
or
(b) He subjects another person to sexual contact who is incapable of
consent because he:
1. Is physically helpless;
2. Is less than twelve (12) years old; or
3. Is mentally incapacitated.
KRS 510.110. Grundy contends that because he was convicted under subsection (b) of
the Kentucky statute, which does not involve the element of “forcible compulsion,” his
prior offense should not be considered a crime of violence under the Guidelines. This
argument is unavailing.
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To determine whether a particular offense constitutes a “crime of violence” under
the Guidelines, this Court “follows a ‘categorical approach limited to an examination of
the fact of conviction and the statutory definition of the predicate offense.’” United
States v. Campbell, 256 F.3d 381, 395-96 (6th Cir. 2001)(quoting Arnold, 58 F.3d at
1121). “Under this approach, it is not only impermissible, but pointless, for the court to
look through to the defendant’s actual criminal conduct.” Id. at 396. Here, the district
court properly employed the categorical approach and looked only at the fact of
Grundy’s conviction and the statutory definition of his offense under Kentucky law.
This Court has repeatedly held that sexual offenses involving minors “present a
serious potential risk of physical injury to another” and constitute crimes of violence
under § 4B1.2(a)(2). See Campbell, 256 F.3d at 396 (affirming lower court’s
determination that crime of second-degree sexual conduct involving sexual contact with
a person, age 13 to 16, of same blood affinity presents serious potential risk of physical
injury to another); United States v. Champion, 248 F.3d 502, 506 (6th Cir.
2001)(affirming lower court’s determination that offense of sexually exploiting a minor
presents serious potential risk of physical injury to another); United States v. Arnold,
1996 WL 435275, at *2 (6th Cir. Aug. 1, 1996)(affirming lower court’s finding upon
remand that offense of assault with attempt to commit sexual battery involving female
child under the age of thirteen presents serious potential risk of physical injury to
another); see also United States v. Hargrove, 416 F.3d 486, 495 (6th Cir. 2005)
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(recognizing this Court’s previous holdings that “sexual offenses involving victims who
were minors amount to crimes of violence”). Accordingly, the district court did not err in
finding that Grundy’s prior conviction for first degree sexual abuse involving a child
under the age of twelve was a crime of violence under U.S.S.G. § 4B1.2(a)(2).
C.
Grundy next challenges the district court’s inclusion of three points in his criminal
history score for his previous state-court conviction for driving without insurance. He
contends that the sentence imposed for this conviction – a $500 fine, $450 of which was
to be conditionally discharged after two years – does not qualify as a “term of probation”
under either U.S.S.G. § 4A1.2(c)(1) or § 4A1.1(d), and therefore, the district court
improperly calculated his criminal history score.
Section § 4A1.1 of the Sentencing Guidelines provides, in part:
(a) Add 3 points for each prior sentence of imprisonment exceeding
one year and one month.
(b) Add 2 points for each prior sentence of imprisonment of at least
sixty days not counted in (a).
(c) Add 1 point for each prior sentence not counted in (a) or (b), up to
a total of 4 points for this item.
(d) Add 2 points if the defendant committed the instant offense while
under any criminal justice sentence, including probation, parole,
supervised release, imprisonment, work release, or escape status.
U.S.S.G. § 4A1.1. The district court added one point to Grundy’s criminal history score
under § 4A1.1(c) for his sentence on the no-insurance conviction. The court added two
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additional points under § 4A1.1(d) because Grundy committed the instant offense while
“on probation” for the no-insurance conviction. This calculation was not erroneous.
Section 4A1.2(c)(1) of the Sentencing Guidelines provides that sentences for
prior misdemeanor and petty offenses are included in a defendant’s criminal history
calculation unless they fall within an applicable exception. One exception provides that
sentences for certain “prior offenses and offenses similar to them, by whatever name
they are known” – which includes the offense of “[d]riving without a license or with a
revoked or suspended license” – are counted in the criminal history calculation only if
“the sentence was a term of probation of at least one year or a term of imprisonment of
at least thirty days . . . .” U.S.S.G. § 4A1.2(c)(1)(A). This Court has previously held that
a conditionally discharged fine is the “functional equivalent of ‘unsupervised probation.’”
United States v. Rollins, 378 F.3d 535, 538 (6th Cir. 2004)(holding that prior conviction
for driving without insurance for which defendant was sentenced to two-year
conditionally discharged fine was properly included in defendant’s criminal history under
§ 4A1.2(c)(1)). Accordingly, the district court properly determined that Grundy’s term of
conditional discharge constituted the functional equivalent of unsupervised probation
and included this sentence in his criminal history score under §§ 4A1.2(c)(1)(A) and
4A1.1(c).
Similarly, this Court has also previously held that a term of conditional discharge
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constitutes a “criminal justice sentence” under § 4A1.1(d). United States v. Trammel,
404 F.3d 397, 404 (6th Cir. 2005)(holding that two points were properly added under §
4A1.1(d) because defendant’s underlying drug conspiracy began during two-year period
of conditional discharge). Since Grundy committed the instant offense during the two-
year period of conditional discharge for driving without insurance, the district court
properly added two points to his criminal history score under § 4A.1.1(d).
D.
Grundy’s final argument is that the district court imposed a “heightened
sentence” that failed to comport with his “bargain outside of the plea agreement” with
the government for a term of imprisonment of twelve months and a day. The existence
of a separate, unwritten plea agreement must be proven by clear and convincing
evidence. United States v. Herrera, 928 F.2d 769, 773 (6th Cir. 1991). In this case,
there is no evidence in the record of a separate, unwritten plea agreement. The record
reveals nothing in the statements made by either Grundy or the government at
sentencing that indicates that the parties entered into a separate bargain outside the
written plea agreement in this case. Moreover, Grundy’s written plea agreement
expressly contradicts his argument. The written agreement provides that “[n]o
agreement exists about what the Defendant’s sentence will be” and further specifies
that “[t]his document contains the complete and only Plea Agreement between the
United States Attorney for the Eastern District of Kentucky and the Defendant. The
United States has not made any other promises to the Defendant.” An integration
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clause “normally prevents a criminal defendant, who has entered into a plea agreement,
from asserting that the government made oral promises to him not contained in the plea
agreement itself.” United States v. Hunt, 205 F.3d 931, 935 (6th Cir. 2000).
Additionally, when Grundy entered his pleas of guilty before the district court on April
18, 2003, he did not mention a separate agreement with the government outside the
written agreement. Because Grundy failed to mention the existence of a separate,
unwritten plea agreement before the district court and there is no evidence in the record
that any such agreement ever existed, his challenge fails on appeal.
For the reasons set forth above, Grundy’s sentence is AFFIRMED.
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