United States v. Wayne Allen Daniel , 358 F. App'x 79 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
Nos. 08-15427, 08-15428, ELEVENTH CIRCUIT
Dec. 22, 2009
08-15429, 08-15430,
THOMAS K. KAHN
08-15431, 08-15432
CLERK
08-15433
________________________
D.C. Docket Nos. 95-00284-CR-ODE-1-1
95-00439-CR-ODE-1-1, 95-00440-CR-ODE-1-1,
95-00441-CR-ODE-1-1, 95-00442-CR-ODE-1-1
95-00443-CR-ODE-1-1, 08-00072-CR-01-WBH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WAYNE ALLEN DANIEL,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
________________________
(December 22, 2009)
Before BLACK, WILSON and COX, Circuit Judges.
PER CURIAM:
Wayne Allen Daniel appeals the sentence imposed following his guilty plea to
bank robbery. He also appeals his consecutive sentences imposed in other cases
following the revocation of his supervised release. We have consolidated the appeals.
We affirm the sentences imposed following revocation of his supervised release. We
vacate the sentence for the bank robbery and remand for re-sentencing.
I. Background and Procedural History
In 1995, Daniel pleaded guilty to several counts of bank robbery. He was
sentenced to concurrent terms of 170 months imprisonment and three years
supervised release for each of the convictions.1 Daniel was released from prison in
December 2007 and began the term of supervised release. A few weeks later, he was
arrested for Driving Under the Influence (“DUI”) in Catoosa County, Georgia.
Daniel posted bond, and an arraignment in the DUI case was scheduled for February
7, 2008, in the Probate Court of Catoosa County. On January 31, 2008, he robbed a
bank, was arrested in the bank parking lot, and was taken into federal custody. He
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Daniel was charged with eight counts of bank robbery in the Northern District of Georgia
(No. 08-15427); two counts of bank robbery in the Northern District of Illinois (No. 08-15428); one
count of bank robbery in the District of Delaware (No. 08-15429); one count of bank robbery in the
District of Maryland (No. 08-15430); one count of bank robbery in the Southern District of Georgia
(No. 08-15431); and one count of bank robbery in the Eastern District of Louisiana (No. 08-15432).
Daniel pleaded guilty to two counts of bank robbery in the Northern District of Georgia and all
counts from other jurisdictions. These convictions were consolidated for sentencing. Case numbers
herein refer to case numbers on appeal.
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was in federal custody on February 7, 2008 and did not attend his scheduled
arraignment in the DUI case. So, his bond was forfeited.
Daniel was charged by indictment for the 2008 bank robbery and pleaded
guilty. (No. 08-15433.) Judge Hunt of the Northern District of Georgia accepted the
plea and sentenced Daniel. For sentencing purposes, the court considered the bond
forfeiture in the DUI case a conviction. It concluded Daniel’s criminal history
category was V, yielding a guidelines range of seventy to eighty-seven months
imprisonment. If the bond forfeiture had not been considered a conviction, Daniel’s
criminal history category would have been IV, yielding a guidelines range of fifty-
seven to seventy-one months—sixteen fewer months at the top of the guideline range.
After considering the advisory sentencing guidelines, the court sentenced Daniel to
eighty-seven months imprisonment.
Following sentencing in the bank robbery case, Judge Evans of the Northern
District of Georgia revoked Daniel’s supervised release in six prior cases and
imposed sentences requiring that he serve, in the aggregate, forty-eight months
imprisonment. These sentences were to be served consecutively to the bank robbery
sentence imposed by Judge Hunt.
At sentencing for the 2008 bank robbery offense, Daniel objected to the bond
forfeiture’s inclusion in the criminal history calculation. He also objected to the
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substantive reasonableness of both the bank robbery sentence and the sentences
imposed following revocation of his supervised release.
II. Issues on Appeal and Contentions of the Parties
First, we consider whether the bond forfeiture in the DUI case should be
considered a conviction for purposes of calculating Daniel’s criminal history in the
2008 bank robbery case. The Government contends that under Georgia law, a bond
forfeiture is considered a conviction, and therefore it should be factored into the
criminal history calculation. Daniel counters that the bond forfeiture in this case was
involuntary. He was in federal custody on the date his arraignment in the DUI case
was scheduled, and he contends that his federal custodians did not permit him to
attend. Daniel argues that involuntary bond forfeitures are not convictions under
Georgia law, so the forfeiture in this case should not factor into his criminal history.
Second, we consider whether the sentence imposed for the 2008 bank robbery
conviction and the sentences imposed following the revocation of supervised release
were substantively reasonable. Daniel argues that his sentence for this bank robbery
conviction was unreasonable because the court did not take into account mitigating
factors. He contends that the sentences in the revocation cases were unreasonable
because they exceeded the advisory guideline range. The Government counters that
all sentences were within the guidelines and were reasonable given Daniel’s criminal
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history and the fact that the 2008 bank robbery was committed less than two months
after Daniel was released from custody.
III. Standard of Review
We review the application of the sentencing guidelines to a given set of facts
de novo. United States v. Garey, 546 F.3d 1359, 1361 (11th Cir. 2008). We review
the substantive reasonableness of a sentence for abuse of discretion. United States
v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008).
IV. Discussion
We first address whether the bond forfeiture in the DUI case should count as
a conviction for calculating Daniel’s criminal history. In United States v. Strevel, we
held that because Georgia law considers a bond forfeiture a conviction, it should be
considered a conviction for purposes of calculating criminal history under the
sentencing guidelines. 85 F.3d 501, 501 (11th Cir. 1996) (citing Cofer v. Crowell,
247 S.E.2d 152, 154 (Ga. Ct. App. 1978)). See also O.C.G.A. § 40-5-1(6) (including
a forfeiture of bail in the definition of “conviction”). But, Strevel did not consider an
involuntary bond forfeiture. Georgia law provides that “[n]o judgment shall be
rendered on a forfeiture of any appearance bond if it is shown to the satisfaction of
the court that the principal on the bond was prevented from attending because he or
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she was detained by reason of arrest, sentence, or confinement . . . .” O.C.G.A. § 17-
6-72(b).
Georgia bond forfeitures are generally considered convictions under the
sentencing guidelines because they are admissions of guilt. See O.C.G.A. § 40-13-58
(providing that a bond forfeiture shall be construed as an admission of guilt); U.S.
Sentencing Guidelines Manual § 4A1.2(a) (2008) (defining prior sentence as a
sentence imposed upon guilty plea, trial, or plea of nolo contendere). Georgia courts,
however, conclude that involuntary bond forfeitures are not admissions of guilt. In
Howard v. Lay, for example, the Georgia Court of Appeals found that a bond
forfeiture was not admissible in a civil case as an admission where the defendant was
not aware of the court date or issuance of a citation. 577 S.E.2d 75, 77 (Ga. Ct. App.
2003). Also, in Beneke v. Parker, the Georgia Court of Appeals stated in dicta that
“a knowing bond forfeiture . . . is an admission of guilt.” 667 S.E.2d 97, 99 n.3 (Ga.
Ct. App. 2008) (citing O.C.G.A. § 40-13-58) (emphasis added). This statement
implies that an unknowing or involuntary bond forfeiture is not an admission of guilt.
While Georgia treats a willful bond forfeiture as an admission of guilt and
considers it a conviction, Georgia law provides a forfeiture exception where a failure
to appear in court is the result of detention in a penal institution. And, an involuntary
bond forfeiture is not an admission of guilt, even if it is not challenged directly in the
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case for which bond was posted. See Howard, 577 S.E.2d at 77 (concluding bond
forfeiture was not an admission of guilt where issue was first raised in a civil
negligence case). Because an involuntary bond forfeiture resulting from detention
in a penal institution is not an admission of guilt under Georgia law, we conclude it
is not a conviction as defined by § 4A1.2(a) of the sentencing guidelines.
This case does not involve, as the Government argues, a collateral attack on the
validity of a prior conviction. See Custis v. United States, 511 U.S. 485, 487, 114 S.
Ct. 1732, 1734 (1994) (holding that a defendant may not collaterally attack prior
convictions other than those obtained in violation of the right to counsel). Rather, we
consider whether Georgia law treats a bond forfeiture as a conviction where the
forfeiture is the result of an involuntary failure to attend a court hearing due to
confinement in federal custody. We conclude that it does not.
The bond forfeiture in this case should not factor into the calculation of
Daniel’s criminal history if his failure to attend the February 2008 arraignment was
involuntary. It was involuntary if he was not afforded a meaningful opportunity to
attend the arraignment. The district court, assuming that all Georgia bond forfeitures
should be considered convictions for purposes of calculating criminal history under
the sentencing guidelines, did not determine whether Daniel’s failure to attend the
arraignment was willful or involuntary. It did not afford Daniel the opportunity to
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present evidence to support his contention that his federal custodians did not permit
him to attend the scheduled arraignment. Therefore, we vacate Daniel’s sentence for
the bank robbery conviction and remand for re-sentencing, at which the district court
should determine whether Daniel’s failure to attend the scheduled arraignment was
willful or involuntary.
Daniel also challenges the substantive reasonableness of the sentence imposed
for the 2008 bank robbery and the sentences imposed following revocation of his
supervised release. Because we vacate his sentence in the 2008 bank robbery case
for the reasons discussed above, we do not consider whether this sentence was
reasonable. As to the sentences imposed following revocation of supervised release,
we conclude, upon review of the record, that the sentences were reasonable.
V. Conclusion
For the reasons stated herein, we vacate the sentence imposed for the 2008
bank robbery and remand for re-sentencing. (Dist. Ct. No. 1:08-CR-072(01)-WBH;
Appeal No. 08-15433.) We affirm the sentences imposed following revocation of
supervised release in the other consolidated cases.
IN CASE NUMBER 08-15433, THE JUDGMENT OF CONVICTION IS
AFFIRMED, BUT THE SENTENCE IS VACATED AND THE CASE IS
REMANDED FOR RE-SENTENCING. THE JUDGMENT AND SENTENCES IN
ALL OTHER CONSOLIDATED CASES ARE AFFIRMED.
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