8th U.S. Circuit Court of Appeals: Fine doesn't lengthen sentence

St. Louis Daily Record & St. Louis Countian, Oct 14, 2008 by Donna Walter

The U.S. Sentencing Guidelines do not allow federal judges to add points for a defendant's criminal history when, in the prior crime, the defendant only had to pay a fine, a federal appeals court said.

On Friday, the 8th U.S. Circuit Court of Appeals ordered a federal judge in Little Rock to resentence Jennifer Corey Spikes -- this time without adding two criminal history points for a 2005 state-court conviction of domestic battery. Spikes was sentenced in February to 13 years in prison for conspiring to distribute methamphetamine.

The two points for the third-degree battery conviction took Spikes from the Sentencing Guidelines range of 135 to 168 months to the range of 151 to 188 months. The judge sentenced Spikes to 160 months. Even if the federal judge decides to sentence Spikes to 135 months, that's still about two years less than her current sentence.

"But any time helps," said Spikes' court-appointed lawyer, Jason Files, of Files & Harris in Little Rock.

"I think it was a fairly easy decision for [the panel] once the record was fully expounded," he said.

While it seems as if this is a narrow decision, Files said it is an important one. "There wasn't any decision directly on point, and this [issue] will come up again, I'm sure," he said.

Spikes said the two-point enhancement was unwarranted because she was sentenced to pay a fine in the state-court case and the guidelines exclude fines from the list of criminal justice sentences used to justify enhancements. The commentary on the guideline at issue defines "criminal justice sentence" to mean a sentence that has "a custodial or supervisory component," the court said.

The commentary goes on to give the example that unsupervised probation would be included among the list of criminal justice sentences, while a fine would not, the court said.

The federal prosecutors, however, argued that the domestic battery conviction justifies the two-point enhancement. The requirement of a "supervisory component" is satisfied because Spikes' prosecution in the earlier case was deferred for almost a year so she could attend a 14-week anger management class. If she attended the class and committed no crimes within the year, the charges against her would be dismissed.

Although Spikes completed the course, she did not do so within the one-year time frame, according to Files. She also missed a court date and became ineligible for the deal, he said, so she decided to pay the $605 fine.

The federal judge relied on a 2007 8th Circuit decision, U.S. v. Perales, to justify the enhancement. But in Perales, the defendant pleaded guilty and received an 18-month deferred judgment. Spikes' earlier prosecution was deferred with conditions, the 8th Circuit said.

"This deferred prosecution with the possibility of a dismissal if she completed the anger management class and committed no further criminal conduct was merely a carrot on a stick attempting to lead her to the goal of lawful behavior, and when it failed, the case proceeded to an adjudication of guilt followed by the imposition of sentence -- a fine," Senior Circuit Judge David R. Hansen wrote for the panel.

The 8th Circuit also disagreed with the government's assertion that the sentencing error was harmless. According to the government, the error was harmless because the 160-month sentence Spikes received was also in the lower sentencing range that should have been applied in her case.

But the court said there isn't anything on the record showing the judge would have imposed the same sentence using the lower range. The judge could have decided to sentence Spikes at the lower end of the lower guideline range, the court said.

A telephone message left for Assistant U.S. Attorney Laura Hoey in Little Rock was not returned Monday, which was a public holiday.