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April 16, 2004.


The opinion of the court was delivered by: MARVIN KATZ, Senior District Judge


On September 9, 2003, the defendant, Lise Buscher, pleaded guilty to mail fraud and wire fraud, in violation of Title 18 U.S Code Sections 1341 and 1343, respectively. Ms. Buscher participated in a scheme to defraud accounting firms out of payments for promised referrals to prospective accounting clients. Her co-defendant, Ronald Newman, pleaded guilty to bank fraud arising out of this scheme and was sentenced by this court on January 30, 2004.*fn1 Now before the court are defendant Buscher's objections to the Probation Department's calculation of her sentencing range under the U.S. Sentencing Guidelines.

  Defendant has a significant number of prior convictions in the state of Washington for check fraud and related crimes. The Probation Department assigned defendant four criminal history points, one for each qualifying adult conviction on her record. See PSI ¶¶ 36-55 Defendant argues that two of these convictions should not count towards her criminal history score because they resulted from cases in which she was not represented by counsel.*fn2 If the court did not count those two convictions, defendant's criminal history category would be reduced from III to II, making her range of imprisonment 8-14 months rather than 10-16 months The Probation Department and the government argue that Ms. Buscher waived her right to counsel in those two cases and therefore all four convictions are valid and should be counted towards her criminal history score. The Probation Department relies on the following statement from the U.S. Probation Office in Washington as evidence that the defendant effected a valid waiver:
In the state of Washington, if a defendant does not have a lawyer present, the judge is responsible for explaining the proceedings to the defendant. Procedure provides for the advisement of the right to counsel The defendant signs a waiver acknowledging that the proceedings have been explained and that they are understood. It can be assumed that state guidelines were followed.
PSI Addendum at 2 (quoting letter from Probation Office dated Dec 8, 2003)

  Defendant counters that this assumption cannot substitute as proof that she knowingly and intelligently waived her right to counsel in the two relevant cases There is no record of the proceeding available to verify whether the standard procedures were followed.

  As support for her objection to the PSI, defendant cites the Supreme Court's decision in Lackawanna County District Attorney v. Coss, 532 U.S. 394 (2001), which recognized an exception to the rule that state prisoners cannot collaterally attack a sentence on grounds that it was enhanced based on an unconstitutional prior conviction, the sentence for which has expired. This exception was for habeas petitions "that challenge an enhanced sentence on the basis that the prior conviction used to enhance the sentence was obtained where there was a failure to appoint counsel in violation of the Sixth Amendment, as set forth in Gideon v. Wainwright, 372 U.S. 335 (1963)." Lackawanna at 404, citing United States v. Custis, 511 U.S. 485, 496-97 (1994) ("[T]he failure to appoint counsel for an indigent [is] a unique constitutional defect. . . ."). The Supreme Court has also held, however, that there is no constitutional defect in failing to appoint counsel for misdemeanor charges where the trial court imposes no jail time upon conviction. See Scott v. Illinois, 440 U.S. 367 (1979) (holding that a misdemeanor conviction for shoplifting where a defendant was not provided counsel did not violate the Sixth Amendment because his sentence consisted of a fine only, even though the statute authorized up to a year of jail time). In Nichols v. United States, 511 U.S. 738 (1994), the Court held that uncounseled misdemeanor convictions that are valid under Scott may be used at sentencing for calculating criminal history

  Defendant was sentenced to 180 days in prison for each of the uncounseled state convictions, False Reporting and Theft. See PSI ¶¶ 49-50. These sentences were suspended for the most part, but defendant served at least four days in custody for False Reporting and at least seven days for Theft. See id. Therefore, these convictions are invalid because they violate the Sixth Amendment as construed by the Court in Scott and this court may not use them for sentencing purposes, unless Ms. Buscher made a knowing and intelligent waiver of her Sixth Amendment right to counsel.*fn3 See United States v. Logan, 250 F.3d 350, 377 (6th Cir. 2001) (upholding the use of a prior uncounseled misdemeanor conviction that resulted in jail time to calculate a federal sentence where there was a valid waiver of the right to counsel in the prior proceeding) See also United States v. Davidson, 75 Fed. Appx. 503, 2003 WL 22177143 (6th Cir. Sep. 19, 2003). In Davidson, the Sixth Circuit affirmed a district court's decision that a defendant had knowingly waived his right to counsel in a previous state court conviction and therefore it could be used to enhance his federal criminal history score. To support this conclusion, the Court of Appeals pointed to evidence of the waiver in the record including the following colloquy between the state trial court judge and the defendant:
Mr. Davidson, so there is no misunderstanding, you have been entitled to be represented by a court-appointed attorney if the Court found that you couldn't afford an attorney yourself If you tell me you wish to be represented by an attorney, then we'll simply vacate the Order that's been entered and we'll go back to square one without any prejudice to you. Do you wish to be represented by an attorney in this case?
Id. at 504-05

 In contrast, in this case there is no such record to reflect the extent to which the state court judge advised Ms. Buscher of her right to counsel on the two disputed charges Without proof of a valid waiver, the court cannot accept those convictions as the basis for criminal history points.

  The Probation Department has also recommended that the court depart upward from the Guidelines range of 10 to 16 months to more adequately reflect defendant's criminal history, which includes several offenses that are not included for Guidelines calculation purposes The court declines to depart upward

  An appropriate Order follows. ORDER

  AND NOW, this 16th day of April, 2004, pursuant to Federal Rule of Criminal Procedure 32(c)(1) and after considering the Presentence Investigation Report ("PSI"), the defendant's sentencing memorandum, the government's sentencing memorandum, and after a hearing, it is hereby ORDERED that the following findings and determinations of the court shall be appended to the PSI in this case and shall accompany any copy of the PSI thereafter made available to the Bureau of Prisons.

  With regard to the PSI and the defendant's objections thereto, it is hereby ORDERED that Defendant's objections to paragraphs 49 and 50 are GRANTED. The criminal history score is decreased from 4 to 2, making the criminal history category decrease from III to II. Accordingly, the range of ...

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