United States v. Collins , 273 F. App'x 761 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
April 11, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 06-6191
v. (W.D. Oklahoma)
DARRELL W. COLLINS, also known (D.C. No. CR-99-216-2-M)
as Fat Boy,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, ANDERSON, and MURPHY, Circuit Judges.
I. INTRODUCTION
Defendant Darrell W. Collins was convicted after a jury trial of numerous
drug-related crimes and sentenced to 360 months’ imprisonment. His convictions
were affirmed on direct appeal, but his sentence was reversed. United States v.
Tyler, 42 F. App’x 186, 200 (10th Cir. 2002). On remand, the district court
concluded Collins was properly sentenced as a career offender and again imposed
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
a 360-month sentence. U.S.S.G. § 4B1.1. Collins was resentenced a third time
after he successfully argued in a 28 U.S.C. § 2255 motion that his counsel on
remand was ineffective for failing to file a direct appeal. The district court once
again used the career offender guideline to calculate Collins’s advisory guidelines
range but granted him a variance and imposed a sentence of 300 months. Collins
then filed this appeal, asserting the district court improperly applied the career
offender sentencing guideline and gave an erroneous jury instruction that
impacted his sentence. He also asserts a claim of ineffective assistance of
counsel. Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a), we affirm Collins’s sentence.
II. BACKGROUND
Collins was charged in a multi-count indictment with crimes related to his
participation in a cocaine distribution conspiracy. Tyler, 42 F. App’x at 189.
Collins was convicted by a jury of all nine charges lodged against him and
sentenced on October 4, 2000. The district court concluded Collins’s prior
conviction for second-degree burglary was a crime of violence and, thus, a
predicate offense that qualified Collins to be sentenced as a career offender
pursuant to § 4B1.1 of the Sentencing Guidelines. Id. at 199. Collins appealed
his convictions, arguing the district court erroneously denied his motion seeking
to suppress tape recorded telephone conversations and improperly permitted a
witness to testify about his previous drug activities. Id. at 194-95, 196-97. He
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also challenged his 360-month sentence. Id. at 198-99. This court affirmed
Collins’s convictions but reversed his sentence, holding the Government failed to
carry its burden of proving Collins’s prior burglary conviction was a crime of
violence for purposes of the career offender guideline. Id. at 200.
Collins was resentenced on September 6, 2002. In accord with our prior
ruling, the Government introduced an affidavit signed by Collins in connection
with his prior state conviction for second-degree burglary indicating that offense
was directed at a dwelling. Collins stipulated that the affidavit was sufficient to
prove the burglary conviction involved a dwelling. Based on Collins’s stipulation
and the Government’s affidavit, the district court again applied the § 4B1.1 career
offender provision and again sentenced Collins to 360 months’ imprisonment.
Collins did not file a timely direct appeal. He did, however, file a pro se
motion pursuant to 28 U.S.C. § 2255, raising numerous ineffective assistance of
counsel claims. The district court granted the motion based on Collins’s claim
that his counsel failed to file a direct appeal after the resentencing. See United
States v. Davis, 929 F.2d 554, 557 (10th Cir. 1991) (“A defendant is denied
effective assistance of counsel if he asks his lawyer to perfect an appeal and the
lawyer fails to do so by failing to file a brief, a statement of appeal, or
otherwise.” (quotation and alteration omitted)).
Collins was sentenced for the third time on May 16, 2006, more than a year
after the Supreme Court’s decision in United States v Booker, 543 U.S. 220-3-
(2005). At the sentencing hearing, his counsel challenged the calculation of
Collins’s now-advisory guidelines range by arguing Collins’s prior second-degree
burglary conviction could be not used as a basis for applying the career offender
guideline because Collins was not eighteen years old when he committed the
offense. See U.S.S.G. § 4B1.2 cmt. n.1 (defining a prior adult felony conviction
as “an offense committed at age eighteen or older” or an offense “classified as an
adult conviction under the laws of the jurisdiction in which the defendant was
convicted”). Collins’s counsel, however, admitted to the district court that
Collins had been certified as an adult. The court noted the applicability of
U.S.S.G. § 4B1.2 cmt. n.1 which indicates offenses committed prior to a
defendant’s eighteenth birthday are classified as adult convictions if the defendant
was proceeded against as an adult. The court applied the career offender
guideline, but took Collins’s age into consideration when it evaluated the 18
U.S.C. § 3553(a) sentencing factors. After incorporating its prior findings and
rulings, the court sentenced Collins to 300 months’ imprisonment. Collins then
filed this direct appeal.
III. DISCUSSION
Collins makes two Sixth Amendment arguments with respect to the drug
types and quantities used to calculate his advisory guidelines range. He argues
the district court erroneously instructed the jury that all references to controlled
substances in the jury instructions meant crack cocaine. Accordingly, he asserts
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the jury did not properly find drug quantities beyond a reasonable doubt. He also
appears to argue that the district court was precluded by the Sixth Amendment
from making findings of drug quantity when it determined his advisory guidelines
range.
Collins’s drug-quantity arguments are clearly precluded by both the
remedial holding in Booker and our subsequent precedent. “Because the post-
Booker Guidelines are discretionary, a district court may continue to find facts,
including drug quantity, by a preponderance of the evidence.” United States v.
Hall, 473 F.3d 1295, 1312 (10th Cir. 2007). Thus, the alleged error in the jury
instructions had no effect on Collins’s sentence. Further, the district court
applied the Guidelines in a discretionary fashion when it resentenced Collins.
Under those circumstances, the Sixth Amendment was not implicated by the
court’s findings related to drug quantity. See United States v. Rodriguez-Felix,
450 F.3d 1117, 1130 (10th Cir. 2006) (“After Booker, a constitutional violation
lies only where a district court uses judge-found facts to enhance a defendant’s
sentence mandatorily under the [Guidelines], and not where a court merely
applies such facts in a discretionary manner.”); see also United States v.
Magallanez, 408 F.3d 672, 685 (10th Cir. 2005) (holding a district court may
continue to find facts, including drug quantities that differ from jury findings, by
a preponderance of the evidence).
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Collins also makes two arguments related to the district court’s application
of the career offender guideline. He first argues the guideline does not apply
because he was seventeen years old when the second-degree burglary crime was
committed and the Government failed to prove that he was certified as an adult.
See U.S.S.G. § 4B1.2 cmt. n.1. The fatal flaw with this argument is that Collins’s
counsel admitted to the district court during the resentencing hearing that he was
certified as an adult in the prior proceeding. Collins seeks to overcome this
obstacle by arguing he was deprived of his constitutional right to effective
assistance of counsel because his attorney failed to investigate whether he had
been certified as an adult. Relying on a document not presented to the district
court and not properly part of the appellate record, Collins asserts he was never
certified as an adult and his counsel’s admission to the contrary was “false.” The
Government argues that Collins cannot show he was prejudiced by counsel’s
alleged deficient performance because he was, in fact, certified as an adult in the
prior proceeding. See Strickland v. Washington, 466 U.S. 668, 688, 692 (1984)
(holding a defendant cannot prevail on a claim of ineffective assistance of counsel
unless he can demonstrate counsel’s representation fell below an objective
standard of reasonableness and he was prejudiced by counsel’s performance.).
Like Collins, the Government bases its argument on a document appended to its
brief that is not part of the appellate record.
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Because the record is not sufficiently developed, Collins’s ineffective
assistance claim cannot be resolved in this direct appeal. United States v. Brooks,
438 F.3d 1231, 1242 (10th Cir. 2006). His claim should first be presented to the
district court in a collateral proceeding. United States v. Galloway, 56 F.3d 1239,
1240 (10th Cir. 1995).
IV. CONCLUSION
For the reasons stated above, Collins’s ineffective assistance claim is
dismissed. His sentence is affirmed.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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