                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-11-2005

USA v. Jones
Precedential or Non-Precedential: Precedential

Docket No. 04-1333




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                                            PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  ___________

                       No. 04-1333
                       ___________

            UNITED STATES OF AMERICA

                            v.

                     FELTON JONES

                                  Appellant
                       ___________

      On Appeal from the United States District Court
           for the Eastern District of Pennsylvania
               (D.C. Criminal No. 97-cr-00193)
      District Judge: The Honorable Berle M. Schiller
                        ___________

                 ARGUED JUNE 30, 2005

           BEFORE: NYGAARD, SMITH, and
               FISHER, Circuit Judges.*


                 (Filed: August 11, 2005)

Paul M. George, Esq. (ARGUED)
McKinney & George

*
 The Honorable Richard Lowell Nygaard assumed Senior Status
on July 9, 2005.
239 South Camac Street
Philadelphia, PA 19107
      Counsel for Appellant

Thomas M. Zaleski, Esq. (ARGUED)
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
       Counsel for Appellee

                        ___________

                OPINION OF THE COURT
                     ___________

NYGAARD, Circuit Judge.

      Appellant Felton Jones was convicted by a jury of

conspiracy to distribute cocaine and distribution of cocaine

within 1,000 feet of a school, in violation of 21 U.S.C. § 860

and 21 U.S.C. § 846. The District Court determined that Jones’

prior convictions placed him in Criminal History Category II

under the Guidelines and sentenced him to 188 months’

imprisonment. Jones filed a pro se petition under 28 U.S.C. §

2255 to vacate, set aside, or correct his sentence, which was

denied by the District Court. He now appeals.     Essentially,



                              2
Jones contends that his sentencing counsel was ineffective for

failing to argue that he was denied counsel in one of the prior

convictions used to compute his criminal history category. We

will affirm.

                                I.

       The facts relating to Jones’ underlying cocaine conviction

are not relevant for purposes of this habeas petition. After being

convicted by a jury of conspiracy to distribute cocaine, and

distribution of cocaine within 1,000 feet of a school, Jones was

sentenced. Initially, the District Court imposed a sentence of

168 months’ imprisonment, which the Judge described as “very

harsh.” Immediately after this sentence was imposed, however,

the Government objected, arguing that for a defendant with a

Category II criminal history designation, the Sentencing

Guidelines mandated a longer sentence. After reviewing Jones’

criminal history designation and the Guidelines, the District

Court agreed and imposed a sentence of 188 months’

imprisonment.


                                3
       Jones’ criminal history designation was the result of two

prior convictions: a 1991 New Jersey conviction for simple

assault and a 1992 conviction for cocaine possession. At the

time of his sentencing, Jones did not object to the use of the

1991 conviction. Almost a year later, however, Jones filed a pro

se petition under 28 U.S.C. § 2255 to vacate, set aside, or correct

his sentence. He asserted that in his 1991 guilty plea for simple

assault, he was denied his right to counsel, and therefore the

conviction cannot be used to enhance his sentence.           More

specifically, Jones alleged that his sentencing counsel was

ineffective for failing to challenge the use of the 1991 simple

assault charge to enhance his sentence.

       A Magistrate Judge held a hearing and appointed counsel

to address the limited issue of whether Jones knowingly and

voluntarily waived his right to counsel in the 1991 simple

assault guilty plea. No court records exist to indicate whether

Jones knowingly and voluntarily waived his right to counsel, or

whether he was even advised of his right. Consequently, the


                                4
Magistrate Judge also addressed the question of whether Jones

or the Government bore the burden of proving that Jones had

waived his right to counsel. The Magistrate Judge concluded

that the presumption of regularity applied to the New Jersey

proceedings, and therefore Jones bore the burden of proving that

he had been unconstitutionally denied his right to counsel. The

Magistrate Judge went on to conclude that Jones had failed to

meet his burden. Accordingly, Jones could not prove that he

suffered any prejudice, even assuming that his counsel had erred

by failing to raise the issue. The District Court adopted the

Magistrate Judge’s Report and Recommendation and denied the

habeas petition.

       We granted a certificate of appealability on the narrow

issue of whether a section 2255 movant bears the burden of

proof in demonstrating that a prior uncounseled guilty plea,

which has been employed to enhance the sentence of a

subsequent federal conviction, was not knowing, intelligent, and

voluntary where the record is silent and the movant affirmatively


                               5
alleges that there was no valid waiver of counsel. We need not

reach that issue. Assuming, without deciding, that Jones did not

knowingly waive his right to counsel, we conclude that Jones

was not constitutionally entitled to counsel for his 1991 simple

assault plea. Thus, his sentencing counsel was not ineffective

in failing to object to his criminal history category.




                                II.

       Because the 1991 simple assault conviction is at the heart

of this appeal, we will address it in some detail. That said, there

are no transcripts of the guilty plea, so we know relatively little

about the conviction. We know that Jones entered a guilty plea

to the charge of simple assault in the Municipal Court of

Phillipsburg, New Jersey. In New Jersey, the crime of simple

assault is considered a disorderly persons offense, or in some

cases, a petty disorderly persons offense. N.J. S TAT. A NN. §

2C:12-1 (1990). We know that Jones was unrepresented when

he entered his plea. We know that Jones was not actually


                                6
imprisoned for his crime; the only punishment he received was

an order to pay a fine and restitution totaling approximately

$150.2 Finally, we know that there is a “computer printout,”

apparently the only record of the New Jersey proceedings, which

indicates Jones was charged with aggravated assault at some

point during the investigation or court proceedings.

                             III.

       The key fact in this case is that Jones was convicted of

simple assault, a disorderly persons offense, for which he was

not actually imprisoned.     Thus, we need not engage in

conjecture regarding what role any charges for aggravated

assault played in Jones’ criminal proceedings. The Supreme

Court has described when a criminal defendant’s Sixth

Amendment right to counsel comes into play in both felony and

misdemeanor cases. In a felony case, the Constitution requires


2
 At the hearing before the M agistrate Judge, the M agistrate
Judge indicated that Jones was fined $55 and ordered to pay
restitution. Jones stated that he did not remember paying
restitution, but recalled paying approximately a $150 fine.
In any case, Jones was not imprisoned for the crime.

                               7
that a criminal defendant be advised of his right to counsel, and

if indigent, that he be offered appointed counsel unless that right

is intelligently and competently waived.       Nichols v. United

States, 511 U.S. 738, 743 n.9 (1994) (citing Gideon v.

Wainright, 372 U.S. 335 (1965)). In a misdemeanor case,

however, a criminal defendant is not always entitled to counsel.

       In Scott v. Illinois, 440 U.S. 367, 373 (1979), the Court

explained that in misdemeanor cases, the defining line of when

a defendant is entitled to have counsel appointed, is actual

imprisonment. This is so because “actual imprisonment is a

penalty different in kind from fines or the mere threat of

imprisonment.” Id. Thus, an individual cannot be sentenced to

a term of imprisonment unless the state has complied with the

right to counsel. It also follows that, in misdemeanor cases, the

question of whether the right to counsel has been violated can

only be determined in retrospect because we cannot know

whether a defendant was entitled to counsel until after he or she

has received a sentence. See id.


                                8
       Following its ruling in Scott, the Court addressed the

effect of a prior uncounseled misdemeanor conviction on a

subsequent sentence. Nichols, 511 U.S. 738. In Nichols, the

Court explained that the Constitution did not prohibit using a

prior uncounseled conviction to enhance the punishment of a

subsequent conviction.    Id. at 749.    A prior uncounseled

conviction, valid under Scott, “may be relied upon to enhance

the sentence for a subsequent offense, even though that sentence

entails imprisonment.” Id. at 746-47. This is so because the

enhancement does not change the penalty imposed for the earlier

conviction. Id. at 747.

       Furthermore, sentencing courts have traditionally relied

on proof of conduct, not necessarily proof of conviction, to

determine whether an individual should be given an enhanced

sentence. Id. at 748. In such a situation, a defendant may face

a more severe sentence if prior criminal conduct is proven by a

preponderance of the evidence. Id. Thus, the Court reasoned,

“it must be constitutionally permissible to consider a prior


                               9
uncounseled misdemeanor conviction based on the same

conduct where that conduct must be proved beyond a reasonable

doubt.” Id.

       Here, we must determine whether it is appropriate to

consider a prior uncounseled misdemeanor conviction where the

defendant was, at some point, charged with a felony. In some

respects, this brings the two standards into conflict because in a

felony case, the right to counsel attaches early in the

proceedings, but in misdemeanor cases, we look on a conviction

and sentence retrospectively to determine whether the right was

violated. Even assuming that Jones was initially charged with

aggravated assault and that his Gideon rights attached, we still

hold that his enhanced sentence was proper.3




3
 Because we do not have the full record of the New Jersey
proceedings before us, we do not speculate as to whether
Jones was entitled to counsel based on those original
charges. As explained below, it is the crime Jones was
convicted of, simple assault, that we examine to determine
whether he was entitled to counsel.

                               10
       The facts before us indicate that Jones pleaded guilty to

the crime of simple assault, which is not a felony. From the

vantage of appellate review on a collateral petition for habeas

corpus relief, we have the benefit of knowing the crime to which

a defendant pleaded guilty or was actually convicted of

committing, and the sentence he received.       It is from this

vantage point that right to counsel cases in misdemeanor

convictions must normally be evaluated. Indeed, it is only after

a sentence is imposed for a misdemeanor that a criminal

defendant could mount a valid argument under Scott that his

rights had been violated. Before sentence, a reviewing court

could not know whether there was actual imprisonment. Thus,

we look at Jones’ 1991 simple assault conviction in retrospect,

just as we would any other misdemeanor conviction in which a

criminal defendant claims that a Sixth Amendment right to

counsel was violated.

       When Jones entered a guilty plea, it was to the charge of

simple assault. Under New Jersey’s Code of Criminal Justice,


                              11
simple assault is categorized as “a disorderly persons offense

unless committed in a fight or scuffle entered into by mutual

consent, in which case it is a petty disorderly persons offense.”

N.J. S TAT. A NN. § 2C:12-1 (1990). Because Jones pleaded

guilty to a disorderly persons offense, which is not a felony, we

hold that Jones’ conviction falls squarely within the bounds of

Scott and Nichols.      The only remaining question is whether

Jones was imprisoned for this offense. Scott, 440 U.S. at 373.

He was not. Jones received no jail time – he simply paid a fine

and restitution of $150 – hence, he had no constitutional right to

counsel.

       In sum, because Jones did not have a Sixth Amendment

right to counsel for his 1991 guilty plea, his sentencing

counsel’s performance in his 1998 cocaine case was not

deficient. Strickland v. Washington, 466 U.S. 668, 687 (1983).

Thus, we will affirm.
