United States District Court, E.D. Arkansas, Western Division
Kristine G. Baker United States District Judge.
Anthony Fonzie has filed objections to the presentence report
(“PSR”) or, in the alternative, a motion for a
downward departure or downward variance (Dkt. No. 23). The
government responded to Mr. Fonzie's objections, and Mr.
Fonzie replied to the government's response (Dkt. Nos.
28; 29). For the following reasons, the Court overrules Mr.
Fonzie's substantive objections to the PSR (Dkt. No.
The Court takes under advisement Mr. Fonzie's alternative
motion for a downward departure or downward variance and will
rule on Mr. Fonzie's request for a downward departure or
downward variance after providing the parties with an
opportunity to address the motion during the Court's
sentencing hearing. The only grounds for a departure that the
Court will consider at the sentencing hearing are those
raised in Mr. Fonzie's prehearing submission (Dkt. No.
23). See Fed. R. Crim. P. 32(h) (“Before the
court may depart from the applicable sentencing range on a
ground not identified for departure either in the presentence
report or in a party's prehearing submission, the court
must give the parties reasonable notice that it is
contemplating such a departure. The notice must specify any
ground on which the court is contemplating a
PSR, the Unites States Probation Office categorizes Mr.
Fonzie as a career offender under the 2016 Guidelines Manual,
incorporating all guideline amendments. The Sentencing
Guidelines provide that:
A defendant is a career offender if (1) the defendant was at
least eighteen years old at the time the defendant committed
the instant offense of conviction; (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.
U.S.S.G. §4B1.1(a) (2016).
Fonzie objects to his categorization as a career offender for
three reasons. First, he claims that the convictions listed
in Paragraphs 25 and 26 of the PSR are void because he
contends that the sentences he received for these convictions
were illegal. Second, he argues that the convictions listed
in Paragraphs 24 and 26 do not qualify as controlled
substance offenses. Third, he argues that his conviction for
second degree murder, listed in Paragraph 25 of the PSR, does
not qualify as a crime of violence.
25 of the PSR provides that, on September 12, 2005, Mr.
Fonzie was convicted of second degree murder in the Circuit
Court of Phillips County, Arkansas. Mr. Fonzie received a
sentence of five years of probation, a $300 fine, court
costs, and 24 months supervised probation for this offense.
The PSR attributes one criminal history point to Mr. Fonzie
based on this conviction.
Fonzie objects to Paragraph 25 and argues that the Court
should not use this conviction as a predicate offense for
categorizing him as a career offender. Citing two decisions
from the Arkansas Supreme Court, Mr. Fonzie notes that, under
Arkansas law, “sentencing is entirely a matter of
statute[, ]” such that “[w]here the law does not
authorize the particular sentence pronounced by a trial
court, that sentence is unauthorized and illegal, and the
case must be reversed and remanded” (Dkt. No. 23, at 2)
(quoting State v. Stephenson, 9 S.W.3d 495, 496
(Ark. 2000)); see also Donaldson v. State, 257
S.W.3d 74, 76 (Ark. 2007) (“A sentence is void or
illegal when the trial court lacks authority to impose
it.”). Mr. Fonzie argues that the probationary sentence
he received for his conviction of second degree murder is
“void under Arkansas law” because “the
Phillips County Court was not authorized by [statutory] law
to impose a sentence of probation, or to impose a sentence
below the minimum term of six years” (Dkt. No. 23, at
1-2) (citing Ark. Code Ann. § 5-4-301(a)(1)(E); Ark.
Code Ann. § 5-4-104; Ark. Code Ann. § 5-4-401).
26 of the PSR provides that, on November 27, 2006, Mr. Fonzie
was convicted of attempted delivery of a controlled substance
(cocaine) in the Circuit Court of Phillips County, Arkansas.
Mr. Fonzie was sentenced to 60 months of probation, a $500
fine, and court costs for this offense. Mr. Fonzie argues
that this probationary sentence is also “unauthorized,
illegal, and void under Arkansas Law” (Dkt. No. 23, at
Court overrules Mr. Fonzie's objections to his
convictions based on “illegal” sentences. When
deciding a defendant's criminal history under United
States Sentencing Guideline § 4A1.1 and career offender
status under § 4B1.1, courts “should count earlier
convictions unless the convictions ‘(A) have been
reversed or vacated . . ., or (B) have been ruled
constitutionally invalid in a prior case.'”
United States v. Jones, 28 F.3d 69, 70 (8th Cir.
1994) (quoting U.S.S.G. § 4A1.2 cmt. n.6 (Nov. 1993));
see also U.S.S.G. §4A1.2 cmt. n.6 (2016);
U.S.S.G. §4B1.3 cmt. n.3 (2016) (“The provisions
of §4A1.2 (Definitions and Instructions for Computing
Criminal History) are applicable to the counting of
convictions under §4B1.1.”). There is no dispute
that the criminal convictions listed in Paragraphs 25 and 26
of the PSR have not been reversed, vacated, or ruled
constitutionally invalid in a prior case. Even if these
sentences are “facially invalid, ” as Mr. Fonzie
claims, they have not been reversed, vacated, or ruled
constitutionally invalid in a prior case. See Blackwell
v. State, 455 S.W.3d 848, 855 (Ark. App. 2015)
(acknowledging that the defendant's sentence was illegal
on its face because “the judgment reflects a sentence
of zero years' imprisonment for the manslaughter
conviction, a Class C felony, which requires a three-year
minimum[, ]” but declining to invalidate the sentence
because the State did not appeal the sentence).
the Sentencing Guidelines “do not confer upon the
defendant any right to attack collaterally a prior conviction
or sentence beyond any such rights otherwise recognized in
law.” U.S.S.G. §4A1.2 cmt. n.6 (2016). Mr. Fonzie
does not identify any law “conferring a right to attack
his earlier convictions during his sentencing[, ]” and
the Court is not aware of any such law that would apply to
this case. Jones, 28 F.3d at 70. Therefore, the
Court overrules Mr. Fonzie's objections to these
convictions based on the alleged illegality of his
Attempted Controlled ...