USA v. Clipper, Ronald, No. 01-3137 (D.C. Cir. 2002)

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 18, 2002 Decided December 27, 2002

No. 01-3137

United States of America,

Appellee

v.

Ronald T. Clipper,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 00cr00380-01)

David W. Bos, Assistant Federal Public Defender, argued

the cause for appellant. With him on the briefs was A. J.

Kramer, Federal Public Defender. Robert L. Tucker, Assis-

tant Federal Public Defender, entered an appearance.

Mary B. McCord, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief was Roscoe C.

Howard, Jr., U.S. Attorney, John R. Fisher, Elizabeth Tros-

man, and Wan J. Kim, Assistant U.S. Attorneys.

Before: Ginsburg, Chief Judge, Henderson, Circuit Judge,

and Williams, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

Williams.

Williams, Senior Circuit Judge: Ronald Clipper pleaded

guilty in May 2001 to unlawful possession of a firearm and

ammunition by a convicted felon in violation of 18 U.S.C.

s 922(g)(1). The Sentencing Guidelines calculation yielded a

range of 57-71 months, and the district court sentenced him

at the very top of the range, noting Clipper's "dangerousness,

his recklessness, his irresponsibility." The Guidelines range

was significantly affected by several prior felony convictions,

but one of them--his 1991 conviction for possession of crack

cocaine with intent to distribute--was very likely in violation

of the Fourth Amendment as interpreted by the Supreme

Court years after that conviction became final. Clipper asked

the district court to exclude that conviction from his present

sentence calculations, but that option is plainly foreclosed by

the Guidelines, and Clipper does not pursue it on appeal.

Rather, he presses two fallback arguments: first, that the

district court should have given him a downward departure to

mitigate the effect of the 1991 conviction; and second, that

the changed outlook on that conviction called for a downward

departure for time "erroneously" served.

The district court rejected both arguments, and we agree.

The Sentencing Guidelines clearly set forth the conditions

under which a prior conviction may be discounted in sentenc-

ing calculations--conditions that Clipper's 1991 conviction

indisputably does not meet. Clipper reasons that the Guide-

lines' foreclosure of any direct exclusion of the 1991 conviction

naturally opens the door to a departure; this is unsound. If

correct, it would tend to make every explicit Guidelines

provision an invitation for courts to do the opposite. Similar-

ly, because the 1991 conviction has not been vacated, over-

turned, or set aside, Clipper has not served time in jail

erroneously and is not entitled to a downward departure on

that score. We affirm the district court in all respects.

* * *

We review the district court's departure decision for abuse

of discretion. Koon v. United States, 518 U.S. 81, 99-100

(1996). But the decision "whether a factor is a permissible

basis for departure under any circumstances is a question of

law." Id. at 100. On that point, therefore, there is no

deference to the district court. Id.

Clipper's 1991 conviction arose from an anonymous call to

the police that a person meeting a particular description and

walking in the area of a specified intersection was armed with

a gun. United States v. Clipper, 973 F.2d 944, 946 (D.C. Cir.

1992). Officers responded to the tip and saw Clipper, who

matched the description given by the caller. After a brief

chase, they stopped and frisked him, finding a thick wad of

currency and a bag of crack cocaine.

Clipper moved to suppress the money and drugs, arguing

that the officers didn't have the reasonable suspicion required

for a stop under Terry v. Ohio, 392 U.S. 1 (1968). The

district court denied the motion and the jury convicted.

Clipper appealed and we upheld the stop. Applying the

"totality of the circumstances" test set forth in Alabama v.

White, 496 U.S. 325 (1990), and stressing the tipster's claim

that the person possessed a gun, we held that the circum-

stances under which White permitted a stop included instanc-

es where an anonymous tip did not state predictive facts but

did provide "the police with verifiable facts while alerting

them to an imminent danger that the police cannot ignore

except at risk to their personal or the public's safety." Clip-

per, 973 F.2d at 949-50. The Supreme Court denied certiora-

ri. Clipper v. United States, 506 U.S. 1070 (1993).

In Florida v. J.L., 529 U.S. 266 (2000), however, the Court

resolved a judicial split on the issue, identifying Clipper as

one of the dividing cases. Id. at 269. The Court held that an

anonymous tip that a person is carrying a gun is not, without

more, sufficient to justify a police officer's stop and frisk of

that person. Although Florida v. J.L. did not reverse, va-

cate, or set aside Clipper's conviction, or even explicitly

disapprove Clipper, both parties agreed at argument that for

purposes of this case the officers' stop of Clipper should be

assumed to be unconstitutional under Florida v. J.L.

In his 2001 sentencing Clipper's 1991 conviction affected

the Guidelines calculation both of his "base offense" level (see

U.S.S.G. s 2K2.1(a)) and his criminal history category (see

U.S.S.G. s 4A1.2). The upshot was to increase his sentencing

range from 30-37 months to 57-71 months.

* * *

Clipper's request for a downward departure depends on

whether he cites factors that were "not adequately taken into

consideration" by the Sentencing Commission. U.S.S.G.

s 5K2.0. Thus, although Clipper has decided not to appeal

the district court's rejection of his claim that the Guidelines

authorized exclusion of his 1991 conviction, our analysis must

begin with this issue. In the criminal history context, the

commentary to U.S.S.G. s 4A1.2 says:

6. Reversed, Vacated, or Invalidated Convictions. Sen-

tences resulting from convictions that (A) have been

reversed or vacated because of errors of law or

because of subsequently discovered evidence exoner-

ating the defendant, or (B) have been ruled constitu-

tionally invalid in a prior case are not to be counted.

With respect to the current sentencing proceeding,

this guideline and commentary do not confer upon

the defendant any right to attack collaterally a prior

conviction or sentence beyond any such rights other-

wise recognized in law (e.g., 21 U.S.C. s 851 express-

ly provides that a defendant may collaterally attack

certain prior convictions).



U.S.S.G. s 4A1.2 (Application Note 6). For purposes of

counting convictions for the base offense level, U.S.S.G.

s 2K2.1 incorporates the standards of s 4A1.2. See U.S.S.G.

s 2K2.1 (Application Note 15). Thus Application Note 6 to

s 4A1.2 controls the inquiry for both of the ways in which the

1991 conviction raised Clipper's sentencing range.

 As Clipper's 1991 conviction has not been reversed, vacat-

ed, or ruled constitutionally invalid, it plainly doesn't fall

within the class of convictions whose sentences are "not to be

counted." The Guidelines' effort to limit the issues available

in a recidivist sentencing is in accord with the Supreme

Court's approach. In Custis v. United States, 511 U.S. 485

(1994), it held that in a sentencing under the Armed Career

Criminal Act of 1984, 18 U.S.C. s 924(e), a defendant had no

right to collaterally attack a prior state conviction used for

sentencing enhancement--with a narrow exception for convic-

tions obtained in a proceeding in which the accused was not

represented by counsel and had not competently and intelli-

gently waived the right to counsel. See id. at 487, 493-96.

In Daniels v. United States, 532 U.S. 374, 382 (2001), the

Court extended the rule to a challenge under 18 U.S.C.

s 2255 to a sentence enhanced under s 924(e) by a prior state

conviction. The Court was explicit that this raised no consti-

tutional problems. Custis, 511 U.S. at 493-97; Daniels, 532 U.S. at 383. Of course a prisoner adversely affected by a

prior sentence may pursue whatever avenues of collateral

relief remain open to him, and then ask the later sentencing

court to reopen the sentence. Id. at 382. But the later

sentencing does not open any doors that are otherwise closed:

"If ... a prior conviction used to enhance a federal sentence

is no longer open to direct or collateral attack in its own right

because the defendant failed to pursue those remedies while

they were available (or because defendant did so unsuccess-

fully), then that defendant is without recourse." Id.

The second sentence of Application Note 6 says that the

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 (e.g., 21 U.S.C. s 851

expressly provides that a defendant may collaterally attack

certain prior convictions)." There is an ambiguity here that

we need not resolve. The decision in Custis makes clear that

a defendant being sentenced under s 924(e) may not use the

occasion to bring even a collateral attack that is still open to

him; he must bring that separately and if successful return to

the court that sentenced him as a recidivist. The parties

have not briefed and we need not decide whether Application

Note 6 or 18 U.S.C. s 922(g)(1) embodies any restriction like

that found in s 924(e). Here, Clipper could not obtain collat-

eral relief for his claim in any forum because it rests solely on

the Fourth Amendment and he was afforded a full and fair

opportunity to litigate the claim in federal court. See Stone

v. Powell, 428 U.S. 465, 481-82 (1976).

Clipper accordingly recognizes that the Guidelines them-

selves leave no direct basis for excluding the 1991 conviction

from his sentencing calculation. Instead he seeks a downward

departure under U.S.S.G. s 5K2.0, which reads in relevant

part:

Under 18 U.S.C. s 3553(b), the sentencing court may

impose a sentence outside the range established by the

applicable guidelines, if the court finds "that there exists

an aggravating or mitigating circumstance of a kind, or

to a degree, not adequately taken into consideration by

the Sentencing Commission in formulating the guidelines

that should result in a sentence different from that

described."



U.S.S.G. s 5K2.0. Clipper argues that the Sentencing Com-

mission did not take into consideration the situation of a

defendant facing the Guidelines repercussions of a conviction

that would be unconstitutional if it occurred at the time of

sentencing but that is not subject to collateral attack outside

the recidivist sentencing.

But Application Note 6 represents the Sentencing Commis-

sion's express "consideration" of the types of convictions that

are to be disregarded in calculations of criminal history--ones

that have been "reversed," "vacated," or "ruled constitutional-

ly invalid in a prior proceeding." Id. That Clipper cannot

satisfy this test does not make his circumstance one that the

Commission failed to consider. A clearly drawn line is not a

failure to consider cases that fall on the wrong side of the

line. Doubtless the Commission understood that some invalid

convictions were beyond collateral attack. Stone v. Powell

itself, for example, was decided in 1976.

 Clipper suggests, however, that in 1993 when the Sentenc-

ing Commission last amended Application Note 6 it could not

have been aware of two later legal developments which he

sees as restricting his ability to challenge the 1991 conviction:

the Supreme Court's decision in Custis, and Congress's pas-

sage of the Anti-terrorism and Effective Death Penalty Act of

1996, amending 28 U.S.C. s 2255 to impose a one-year statute

of limitations on federal habeas corpus relief. As a general

matter it seems to us improbable that the Commission could

have been blind to the fact that the Supreme Court decides

cases and that Congress occasionally legislates in relation to

collateral attack, thereby making authoritative resolutions of

the competing interests that are implicated by such attacks.

Application Note 6 appears simply to accept that process,

refraining from "confer[ing] ... any right to attack collateral-

ly a prior conviction or sentence beyond any such rights

otherwise recognized by law." But in any event, as we've

explained, Stone v. Powell already foreclosed Clipper from

challenging his 1991 conviction, and the changes to which he

points had no bearing on his case. It would mischievously

upset the Commission's rules to suppose that their application

to persons so situated had not been "taken into consider-

ation."

Clipper's argument that he is entitled to the possibility of a

departure for time served "erroneously" under his 1991 con-

viction is no stronger. The two cases he relies upon, United

States v. Romualdi, 101 F.3d 971 (3d Cir. 1996), and United

States v. Miller, 991 F.2d 552 (9th Cir. 1993), each involved

time served under a sentence for the same conviction that

had been vacated by the court of appeals. See Romualdi,

101 F.3d at 977; Miller, 991 F.2d at 554. Given the statute

providing a credit for time served, see 18 U.S.C. s 3585, it is

not altogether clear why a departure was necessary in these

cases, but in any event they plainly do not advance his claim.

Finally, we reject Clipper's argument that his first two

arguments together constitute a combination of factors that

warrants departure. As stated above, neither of these argu-

ments has merit on its own; zero plus zero equals zero.

The judgment of the district court is

Affirmed.