Appeal from the United States District Court for the Eastern District of Wisconsin.
Before FLAUM, DIANE P. WOOD, and EVANS, Circuit Judges.
Stadtmueller, Chief Judge.
DECIDED DECEMBER 10, 1996
This case presents the issue of whether a default judgment entered against a defendant constitutes a "prior sentence" for purposes of assessing criminal history points under the United States Sentencing Commission Guidelines. See USSG sec. 4A1.1 & .2(a) (1995). Appellant LaShawn Jiles was convicted of armed bank robbery and of using and carrying a firearm in relation to a crime of violence. At sentencing, the district court assessed the appellant criminal history points based on municipal ordinance violations for assault and battery and retail theft arising from five separate default judgments entered due to the appellant's failure to appear in municipal court.
Jiles does not dispute that penalties awarded for these types of municipal violations are properly considered prior sentences under the Sentencing Guidelines. Because retail theft and assault and battery are municipal offenses which are also violations of state criminal law, sentences for such offenses are treated as if the defendant had been convicted under state law. *fn1 See USSG sec. 4A1.2, comment. (n. 12). Rather, appellant argues that these judgments, because they were entered as a result of his failure to appear rather than his personal plea of guilty or no contest, do not sufficiently establish his guilt and therefore should not be considered in computing his criminal history level. The district court rejected this argument. Because we agree that federal sentencing is not a proper forum in which to challenge prior convictions, we affirm the sentence imposed by the district court.
As an initial matter, we note that a plain reading of the Sentencing Guidelines in conjunction with Wisconsin law does not support appellant's argument that a default judgment in Wisconsin does not constitute a sufficient adjudication of guilt under the Sentencing Guidelines. Under Wisconsin law, a person charged with a municipal violation who fails to appear in court is deemed to have entered a plea of no contest, in other words a plea of nolo contendere. See WIS. STAT. ANN. sec. 800.09(2)(b) (West Supp. 1995-1996). The Sentencing Guidelines provide that a plea of nolo contendere is considered an adjudication of guilt and that a sentence imposed pursuant to such a plea is properly considered a "prior sentence." *fn2 See USSG sec. 4A1.2(a)(1) (defining "prior sentence" as "any sentence imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for conduct not part of the instant offense."). *fn3 In addition, common sense would lead one to conclude that default judgments must constitute "prior sentences" for purposes of assessing criminal history points. A contrary rule would create a perverse incentive: a defendant's failure to appear in court would prevent the use of the conviction as the basis for enhancing a subsequent federal sentence.
Acknowledging this dilemma, Jiles does not argue that a sentence imposed by a court as a result of a defendant's failure to appear can never constitute a "prior sentence" for purposes of assessing criminal history points. Jiles does argue, however, that a no-contest plea that has been deemed by the court to have been entered as a result of a defendant's failure to appear should be distinguished for purposes of sentencing from a no-contest plea which has been personally entered by a defendant. Appellant contends that the former is unreliable evidence of a defendant's guilt absent evidence that the defendant had notice of either the municipal citation or the default judgment. In the "worst case scenario" painted by the appellant, if an action were commenced by mailing a summons to a defendant and both the summons and the notice of the default judgment were mailed to an incorrect address, the defendant would have no notice of the action and no opportunity to seek relief from the default judgment. Jiles therefore suggests that this court adopt a rule requiring that the state bear the burden of demonstrating that the defendant received notice of either the municipal citation or the default judgment before the default judgment can be considered a prior sentence. We decline to adopt appellant's suggestion.
First, both the Supreme Court and this court have held that federal sentencing is not a permissible forum in which to challenge the validity of a prior conviction. See Custis v. United States, 511 U.S. 485, 493-96 (1994) (declining "to extend the right to attack collaterally prior convictions used for sentence enhancement beyond the right to appointed counsel established in Gideon"); United States v. Covarrubias, 65 F.3d 1362, 1372 (7th Cir. 1995); United States v. Arango-Montoya, 61 F.3d 1331, 1336 (7th Cir. 1995); United States v. Hoggard, 61 F.3d 540, 542 (7th Cir. 1995); United States v. Rogers, 45 F.3d 1141, 1143 (7th Cir. 1995); United States v. Killion, 30 F.3d 844, 846 (7th Cir. 1994), cert. denied, Killion v. United States, 115 S. Ct. 954 (1995); United States v. Burnom, 27 F.3d 283, 284 (7th Cir. 1994). Neither the Constitution, see Custis, 511 U.S. at 496, nor the Sentencing Guidelines, see Mitchell, 18 F.3d at 1359-60, confer on a defendant the right to attack collaterally a prior conviction used in sentencing. The Court's decision in Custis and the decisions of this court make clear that Jiles could not have challenged the validity of his municipal convictions at sentencing. Appellant is therefore certainly not entitled to a rebuttable presumption that all default judgments arising from a defendant's failure to appear are invalid for purposes of enhancing federal sentences.
As the Supreme Court recognized in Custis, "by challenging the previous conviction, the defendant is asking a district court to deprive the state court judgment of its normal force and effect in a proceeding that has an independent purpose other than to overturn the prior judgment." 511 U.S. at 497 (internal quotations omitted); see also Mitchell, 18 F.3d at 1361 ("[A] federal court uses a past conviction as one of many considerations in determining the length of a defendant's incarceration for his present crime. At sentencing a federal court is not being asked to approve, enforce, or vacate the prior conviction, but merely to determine a proper federal sentence for a federal crime."). In this case, Jiles asks that the district court deprive five municipal default judgments of their normal force and effect on the basis of nothing but pure speculation as to whether he received adequate notice that he was required to appear in court. Such speculation is inappropriate given the "strong presumption of regularity" which applies to state judicial proceedings. See Hoggard, 61 F.3d at 543; Cuppett v. Duckworth, 8 F.3d 1132, 1137 (7th Cir. 1993), cert. denied, 510 U.S. 1180 (1994) (case analyzing validity of state court conviction used in sentence enhancement and ...