Buford, Paula v. U.S. (03/20/2001)

By: Linda McCants Pendleton, Medill News Service

Questions presented

1. Whether the ""de novo"" or ""deferential"" standard of appellate review should be used in determining whether a defendant's prior convictions are ""related"" within the meaning of the Federal Sentencing Guidelines. The 7th Circuit decision shows that the 1st, 5th, and 9th circuits reviewed ""relatedness"" determinations using a de novo standard, and six others used a ""deferential"" standard (2nd, 4th, 6th, 8th, 10th, and 11th circuits).

Brief

In her past, 44-year-old Paula L. Buford had as many as 22 convictions or as few as one depending on how they are counted. They included drug charges as well as the armed robbery of several gas stations and a bank.

Regardless, Buford denies that she is a career offender.

It matters because in April 1999, U.S. District Judge J.P. Stadtmueller sentenced Buford for armed robbery to 188 to 235 months, or nearly 16 to 20 years, in prison. If she were not considered a career offender, federal sentencing guidelines would have dictated a sentence of less than half that -- from 84 to 105 months, about seven to nine years in prison.

According to sentencing guidelines, a defendant is considered a career offender if he or she is at least 18 at the time of the offense, the offense is a felony involving violence or a controlled substance, and the defendant has had at least two prior felony convictions involving violence or controlled substances.

In 1998, Buford pleaded guilty for robbing a Milwaukee bank with a wrapped object that she claimed was a bomb, although it turned out not to be.

Before that, Buford had pleaded guilty to a 1990-1992 string of armed gas station robberies. In January 1992, she was arrested for one gas station robbery, and confessed to another three. At that time police searched her home and found a firearm and 73 grams of cocaine. Buford was sentenced in May 1992 on five counts of armed robbery (though she only confessed to four), and one count of possessing cocaine with the intent to deliver.

But to simplify administrative work, the court combined the five robberies as one for plea and sentencing purposes. For the second charge, Buford was tried separately in drug court on the cocaine charges.

In a quirky way of bookkeeping, Buford, technically, then only had two prior ""violence"" or ""controlled substances"" convictions that could lead to career-criminal status.

For Buford, that was still a problem. She contends that there should have been only one previous career-criminal qualifying conviction on her record. Not two.

Thats because more than six years later, after robbing a bank in Milwaukee, Buford would face a much stiffer sentence with violence- or drug-related felony number three.

According to her attorney, Robert A. Kagen, Bufords related 1990-92 cases should be counted as only one case.

Related cases are from offenses that occurred on the same occasion, were part of a common scheme, or cases that are consolidated for trial or sentencing, he said.

A unanimous 7th Circuit Court of Appeals panel found that Buford's offenses should not be consolidated.

""ÔRelatedness and Ôconsolidation are not pure questions of law. No legal rule specifies what it means for cases to be Ôconsolidated for sentencing,"" wrote Judge Frank H. Easterbrook.

""Bufords four armed robberies and one drug offense did not occur on the same occasion...Nor were they part of a common scheme or plan,"" he wrote. In addition, a separate drug court shows ""that Wisconsin does not want such prosecutions consolidated."" He also pointed out that Buford had 22 prior convictions, although he did not provide details about the offenses.

Easterbrook conceded that ""the Sentencing Commission has not offered guidance on intermediate situations"" such as Bufords.

According to the 7th Circuit opinion, there is a six to four split among the circuits on the standard of review concerning what offenses are related for the purpose of consolidation.

Although the 7th Circuit adopted the de novo standard for Bufords case, six circuits have disagreed. This standard would disregard a lower courts opinion and take a fresh look at the case. The 2nd, 4th, 6th, 8th, 10th and 11th circuits have preferred a deferential standard of review, or deferring to the trial courts.

In Buford's certiorari petition to the U.S. Supreme Court, Kagen argued that for uniformity, the Court should adopt a ""de novo"" standard of review.

""State judges have no guidelines,"" Kagen said.

""Wisconsin provided for a separate drug court, and therefore severed the drug count from the robbery counts,"" Kagen wrote. ""Other states may have similar quirks.""

On Sept. 26, 2000, the U.S. Supreme Court granted certiorari in the case. Federal Defender Dean Strang, who took over the case for Kagen shortly thereafter, argued on Bufords behalf.

On March 20, 2001, a unanimous Court affirmed, holding in favor of the U.S. that deferential review is the appropriate standard in determining if prior convictions are to be consolidated for sentencing.

The relevant federal sentencing statute requires a reviewing court not only to ""accept"" a district court's ""findings of fact,"" unless clearly erroneous, but also to ""give due deference to the court's application of the guidelines to the facts,"" wrote Justice Stephen Breyer in conceding that the case raises a narrow question of sentencing law.

In characterizing the sentencing issue as one of ""functional consolidation,"" Breyer reasoned that the Court is inclined to give due deference to trial judges because they see many more consolidations than do appellate panels. ""As a sentencing judge who must regularly review and classify defendants' criminal histories, a district judge is more likely to be aware of which procedures the relevant state or federal courts typically follow,"" Breyer stated. ""Experience with trials, sentencing, and consolidations will help that judge draw the proper inferences from the procedural descriptions provided.""