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United States v. Fonzie

United States District Court, E.D. Arkansas, Western Division

June 19, 2017

UNITED STATES OF AMERICA PLAINTIFF
v.
ANTHONY FONZIE DEFENDANT

          ORDER

          Kristine G. Baker United States District Judge.

         Defendant 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. 23).[1] 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 departure.”).

         I. Objections

         In the 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).

         Mr. 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.

         A. “Illegal” Sentences

         Paragraph 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.

         Mr. 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).

         Paragraph 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 3).

         The 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).

         Furthermore, 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.[2] Therefore, the Court overrules Mr. Fonzie's objections to these convictions based on the alleged illegality of his sentences.[3]

         B. Attempted Controlled ...


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