United States v. Tanarius Twigg

Filing

OPINION FILED - THE COURT: MICHAEL J. MELLOY, LAVENSKI R. SMITH and BOBBY E. SHEPHERD. Michael J. Melloy, Authoring Judge (PUBLISHED) [3913901] [11-2599]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 11-2599
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United States of America,

*
*
Plaintiff-Appellee,
*
* Appeal from the United States
v.
* District Court for the
* Eastern District of Missouri.
Tanarius Damun Twiggs,
*
*
Defendant-Appellant.
*
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Submitted: March 12, 2012
Filed: May 22, 2012
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Before MELLOY, SMITH, and SHEPHERD, Circuit Judges.
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MELLOY, Circuit Judge.
Defendant Tanarius Damun Twiggs pleaded guilty to three counts of
knowingly and intentionally distributing a mixture or substance containing a
detectable amount of cocaine base in violation of 21 U.S.C. § 841(a)(1). At
sentencing, the district court1 determined a prior state conviction qualified as a
"controlled substance offense" pursuant to United States Sentencing Guidelines
§ 4B1.2(b) because the prior offense was for possession of a controlled substance
with intent to distribute and not merely possession. Based on this determination, the
1

The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri.

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district court sentenced Twiggs as a career offender pursuant to § 4B1.1. Twiggs
argues that it was error to sentence him as a career offender because infirmities with
the state court records make it impossible to prove that he previously pleaded guilty
to an offense involving an intent to distribute. We reject his arguments and affirm the
judgment of the district court.
I.
The only issue Twiggs raises on appeal is his challenge to the application of
U.S.S.G. §§ 4B1.1 and 4B1.2(b). The career offender provisions had a substantial
impact on Twiggs's advisory Guidelines range. His base offense level without
application of the provisions was 20. Twiggs received a 3-level reduction for
acceptance of responsibility and was in Criminal History category IV. As such,
without application of the career offender provision, his adjusted offense level would
have been 17, and his advisory Guidelines range would have been 51–63 months.
With application of the career offender provision and with the same reduction for
acceptance of responsibility, his overall offense level was 31, and the advisory
Guidelines range was 188–235 months. In addition, Twiggs provided substantial
assistance, and the government moved for a traditional departure pursuant to U.S.S.G.
§ 5K1.1, recommending a sentence of 120 months. Defense counsel suggested a
sentence of 84 months. After finding the career-offender provisions applicable and
considering the parties' recommendations regarding substantial assistance, the court
granted a departure and imposed a below-range sentence of 120 months with 6 years
of supervised release. Even with this § 5K1.1 departure, Twiggs's overall sentence
was substantially above the advisory range that would have applied in the absence of
the career-offender determination.
The facts important to the present appeal relate to the records of Twiggs's prior
state conviction and the introduction of evidence surrounding that conviction at two
sentencing hearings in this case. Twiggs objected to the PSR to the extent it
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characterized his prior state court conviction as a conviction for possession with
intent to distribute. Along with his objection he submitted a copy of a state-court
document that he and defense counsel had signed. The document was entitled
"Petition to Enter Plea of Guilty," and it did not cite any section of the Revised
Statutes of Missouri. At two places in the document Twiggs made reference to the
charges against him as set forth in an Information. However, in other places there
appeared handwritten descriptions of the offense that stated only, "C Felony of Poss,"
and admitted to conduct, stating that Twiggs "possessed a controlled substance."
Twiggs also submitted a copy of the state-court docket sheet that indicated the
"Nature of the Action" was "Poss. of cont. sub."
During Twiggs's first sentencing hearing, the government introduced certified
copies of four documents from the prior state court proceedings. These included: (1)
the docket sheet from the Circuit Court of Scott County, Missouri, in Case Number
CR596-1397FX; (2) the Original Complaint for a State Warrant; (3) the Information;
and (4) the Sentence and Judgment. The docket sheet contains a judge's initials on
an entry describing the acceptance of Twiggs's guilty plea by the court. The
Information and the Complaint charge Twiggs with violation of Revised Statutes of
Missouri § 195.211, possession with intent to distribute. The Sentence and Judgment
is not signed by a judge. Boxes are checked on the Sentence and Judgment indicating
that the offense was a class C felony and that the charge was for "Poss of Controlled
Subst with Intent to Distribute." Unlike the Information and the Complaint, the
Sentence and Judgment does not identify the offense of conviction by citation to a
section of the Revised Statutes of Missouri.
Twiggs submitted a statement signed by his attorney from the prior state court
proceedings. The attorney disclaimed any independent recollection of Twiggs's plea
or sentence but stated that, in general, it had not been the attorney's practice to
negotiate plea agreements resulting in convictions for possession with intent to
distribute. He also stated he would not have written "poss cont subs" on a Petition
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to Enter Guilty Plea if the plea was to a charge of "possession with intent to
distribute."
During the first sentencing hearing in the present federal case, the district court
expressed reservations about the fact that the state court judge had not signed the
Sentence and Judgment. The district court ordered the parties to submit briefs
regarding the impact of the absence of a signature. The parties briefed the issue and
the government emphasized a Missouri statute and Missouri cases holding that
clerical errors in judgments and court records do not impact the validity of the
judgments. The parties then convened for second sentencing hearing. At the second
hearing the government introduced additional materials including a copy of Revised
Statutes of Missouri § 195.211 as in effect on the date of the offense, November 8,
1996, and records from the Missouri Department of Corrections. The Department of
Corrections records indicate that the offense of conviction was possession of a
controlled substance "w/intent to distribute."
The district court held that the record sufficiently demonstrated that Twiggs
had been convicted of possession with intent to distribute, as charged, and not some
other offense. The district court applied the career offender provisions and sentenced
Twiggs accordingly.
II.
The district court's factual determination that Twiggs was convicted for
violating section 195.211 for possession of a controlled substance with intent to
distribute is a factual determination that we review for clear error. See United States
v. Forrest, 611 F.3d 908, 913 (8th Cir. 2010) ("Whether [a defendant] pleaded guilty
to the same . . . offense that was charged in the criminal complaint is a question of
fact."). The applicable standard of proof for this factual determination under the
Guidelines is preponderance of the evidence. See United States v. Augustine, 663
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F.3d 367, 374 (8th Cir. 2011) ("Only if we have a definite and firm conviction that
a mistake has been made will we reverse the sentencing court's factual findings,
which need only be made by a preponderance of the evidence.") (citations and
internal quotation marks omitted). The question at issue is whether Twiggs pleaded
guilty to the offense as charged or to a different offense involving mere possession.
U.S.S.G. § 4B1.2(b) defines the term "controlled substance offense" as
including possession with intent to distribute. The definition does not encompass
mere possession. United States v. Robinson, 639 F.3d 489, 495 (8th Cir. 2011). At
the time of Twiggs's offense, the mere possession of any controlled substance (other
than 35 grams or less of marijuana) was a class C felony in Missouri. Mo. Rev. Stat.
§ 195.202(2) (1996). Missouri also made the possession with intent to distribute any
controlled substance (other than five grams or less of marijuana) a class C felony.
Mo. Rev. Stat. § 195.211(2) & (3). Class C felonies in Missouri are punishable by
up to seven years' incarceration. Mo. Rev. Stat. § 558.011.1(2). Given this regime,
the state's classification of the offense, the duration of the actual sentence imposed,
and the potential seven-year sentence (as identified in the Information, Complaint,
and Petition to Enter Plea of Guilty), it is difficult to determine whether Twiggs's
prior offense was for mere possession or possession with intent to distribute. Simply
put, Missouri classified and punished possession and possession with intent to
distribute in the same manner except in cases involving marijuana below set
quantities.
Other information contained in the record, however, as well as Missouri law
recognizing the validity of unsigned judgments, provide sufficient support for the
district court's conclusion. First, the Sentence and Judgment identifies the offense as
Possession of a Controlled Substance with Intent to Distribute. Certified records of
state court proceedings are admissible to prove prior convictions. See United States
v. Redding, 16 F.3d 298, 302–03 (8th Cir. 1994) (use of certified records); State v.
Robb, 439 S.W.2d 510, 513 (Mo. 1969); See also Mo. Rev. Stat § 490.130. And the
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absence of a judge's signature on the Sentence and Judgment does not make the
document infirm as a matter of Missouri law. See Bowers v. State, 330 S.W.3d 832,
836–37 (Mo. Ct. App. 2011) (entry of judgment in improper form does not affect or
impair the validity of the judgment); State v. Skaggs, 248 S.W.2d 635, 638 (Mo.
1952) (improper entry of judgment does not impact validity of judgment); See also
Mo. Rev. Stat. § 546.590 (stating expressly that failure to properly enter judgment
does not "affect or impair the validity of the judgment"). As such, the Sentence and
Judgment is admissible evidence of the prior conviction, and the district court as fact
finder is entitled to consider the weight to assign this piece of evidence. See United
States v. Webster, 636 F.3d 916, 919 (8th Cir. 2011) ("In making its factual
determination as to the existence of a prior conviction under a particular statute, . . .
the district court may consider the credibility of any evidence presented to it.").
Similarly, the Information and the Complaint identify the offense as Possession
of a Controlled Substance with Intent to Distribute, the Petition to Enter Plea of
Guilty references the Information, and the docket sheet reflects that only one
Information was filed in the case. The docket sheet also reflects that the Petition and
the Information were entered into the docket on the same day. Further, the
Information and the Complaint identify the offense with reference to Mo. Rev. Stat.
§ 195.211, the statutory provision criminalizing possession with intent to distribute.
As relevant to the present question, the Petition states as follows, with the
bracketed material in handwritten form:
3.

I received a copy of the Information and understand that I am
charged with the class [C Felony of Poss]. I have discussed the
charge with my lawyer and fully understand the same.

...
5.

I know that the court must be satisfied that there is a factual basis
for a PLEA OF GUILTY before my plea can be accepted. I
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represent to the court that I did the following acts in connection
with the charge made against me: [possessed a controlled
substance]
In paragraph 3 of the Petition, then, Twiggs expressly referenced the Information. In
paragraph 5, however, he admitted only to possession and made no reference to an
intent to distribute.
We note also that the Department of Corrections documents refer to the offense
in the same manner as the Sentence and Judgment but that Twiggs's state-court
attorney described his past practice as generally not involving the negotiation of plea
agreements for intent to distribute offenses.
Taken in its entirety, the outstanding question of whether Twiggs pleaded
guilty to the offense charged or to a mere possession offense is not answered with
complete clarity by this record. Our review, however, is only for clear error.
Applying this standard, we believe the record is sufficient to support the district
court's determination. The district court emphasized its reliance on the Sentence and
Judgment, and had that document contained a signature, we have no doubt that the
present issue would not be subject to debate. The absence of the signature does not
make the document infirm as a matter of Missouri law, and the district court was
entitled to exercise its authority as fact finder to conclude that the absence of a
signature did not fatally detract from the value or credibility of the document. In
addition, the strongest evidence in support of Twiggs's position is the omission of the
language "with intent to distribute" from the Petition. This omission, however, is
ambiguous at best and not conclusive; one of the two handwritten descriptions makes
direct reference to the Information which unambiguously charged possession with
intent to distribute. The court was not required to interpret this omission as
restricting the extent of Twiggs's plea and could reasonably infer that, in light of the
Information and the other evidence discussed, the failure to reference "intent to

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distribute" within the Petition was merely an incomplete reference to the only charge
in the case, the charge of possession with intent to distribute as set forth in the
Information.
Finally, we note that Twiggs argues much of the record considered at
sentencing by the district court should not have been considered because it would not
qualify for purposes of the modified categorical approach as described in Shephard
v. United States, 544 U.S. 13, 23 (2005). Shephard, however, does not control in the
present context. The present case does not involve application of the modified
categorical approach; rather, the present question is a factual inquiry into whether
Twiggs pleaded guilty to the offense as charged or to a different offense. As to this
separate question, the court is not limited in its inquiry to examine only Shephardqualifying materials.
We affirm the judgment of the district court.
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