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United States v. Brown

argued: January 29, 1993.

UNITED STATES OF AMERICA, APPELLEE
v.
CHERIE BROWN A/K/A CHERIE SLOAN, APPELLANT



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE. D.C. Criminal No. 92-00005-2

Before: Becker and Alito, Circuit Judges and Atkins, District Judge*fn*

Author: Alito

Opinion OF THE COURT

ALITO, Circuit Judge:

Cherie Brown pled guilty to one count of conspiracy to distribute cocaine base, in violation of 21 U.S.C. § 846. Under U.S.S.G. § 4B1.1, she was classified as a "career offender," and this affected her sentence. She now appeals her sentence, arguing that two of the prior felony convictions on which her career offender classification was based are constitutionally invalid because she was denied the effective assistance of counsel at the time of those convictions. She contends that the district court erroneously believed that It lacked the authority to permit her to attack the constitutionality of those convictions as part of her sentencing proceeding. We hold that, under the current version of the Guidelines, a sentencing Judge has authority to permit such constitutional challenges. From the record in this case, it appears that the district court may not have realized that it possessed this authority. We therefore vacate Brown's sentence and remand for further sentencing proceedings.

I.

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.

If a defendant satisfies these requirements, his or her sentence may be greatly increased. Every career offender is placed in the highest criminal history category, Category VI, and the offender's offense level is also often increased. See U.S.S.G. § 4B1.1.

In the present case, the district court classified Brown as a career offender, finding that all three elements of the test set out in U.S.S.G. § 4B1.1 were satisfied. As the court found, Brown was more than 18 years old when she committed the instant offense; the instant offense is a felony that is a controlled substance offense; and Brown had three prior felony convictions for controlled substance offenses. These prior convictions were as follows: (1) she pled guilty in 1985 in the Supreme Court of New York for the First Judicial District (New York County) to a charge of attempted third-degree criminal sale of a controlled substance (heroin) ("the 1985 state conviction"); (2) she pled guilty in 1986 in the United States District Court for the Southern District of New York to a charge of possession of heroin with intent to distribute ("the 1986 federal conviction"); and (3) she pled guilty in 1987 in the United States District Court for the Southern District of New York to a charge of conspiracy to distribute heroin ("the 1987 federal conviction"). Any two out of these three convictions would suffice to classify her as a career offender.

Brown does not challenge the constitutionality of the 1987 federal conviction, but she does attack the 1985 state conviction and the 1986 federal conviction. If neither of these latter convictions or the events underlying them were considered in any way,*fn1 her sentencing range under the Guidelines would be substantially lower.*fn2

Brown claims that both the 1985 state conviction and the 1986 federal conviction are unconstitutional because she was induced to plead guilty by counsel with conflicts of interest that resulted in the denial of her constitutional right to the effective assistance of counsel. Her attorney in the proceedings leading to the 1986 federal conviction was William T. Martin, and her counsel in the proceedings leading to the 1985 state conviction was Mark Weinstein, then Martin's law partner. In 1989, Martin was indicted by a federal grand jury on nine counts of tax evasion, perjury, and distribution of cocaine. He eventually reached an agreement with the government under which he pled guilty to several tax charges and a misdemeanor cocaine possession charge, and the government dropped the remaining counts. Weinstein, meanwhile, had pled guilty to one tax evasion count and was cooperating with the government in the prosecution of Martin.

Both Martin's and Weinstein's crimes allegedly grew out of their involvement with a former client, James Jackson, a major heroin trafficker now serving a lengthy federal prison sentence. From 1983 to 1986, Brown was a "crew member" of Jackson's heroin distribution enterprise. She alleges that Jackson selected Weinstein and Martin to be her counsel, that Jackson paid them for representing her, that Jackson instructed her to do whatever they told her to do, and that their recommendations that ...


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