United States v. Donald Eric Wimer, 25 F.3d 1059, 10th Cir. (1994)
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Scribd Government DocsUnited States v. Donald Eric Wimer, 25 F.3d 1059, 10th Cir. (1994)
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3d 1059
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
UNITED STATES of America, Plaintiff-Appellee,
v.
Donald Eric WIMER, Defendant-Appellant.
No. 94-1004.
United States Court of Appeals, Tenth Circuit.
June 3, 1994.
Before MOORE, ANDERSON, and KELLY, Circuit Judges.
ORDER AND JUDGMENT1
1
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.2
Donald E. Wimer appeals the denial of a motion for post-conviction relief
under 28 U.S.C. 2255. He contends that he was denied effective assistance of
counsel because his counsel failed to object to his presentence report and failed
to appeal his sentence, and consequently he was incorrectly sentenced as a
"career offender" under section 4B1.1 of the United States Sentencing
Guidelines. We affirm.
Wimer pleaded guilty to bank robbery in violation of 18 U.S.C. 2113(a) and
was sentenced as a "career offender" under U.S.S.G. 4B1.1, which provides:
4 defendant is a career offender if (1) the defendant was at least 18 years old at the
A
time of the instant offense, (2) the instant offense of conviction is a felony that is ...
a crime of violence ... and (3) the defendant has at least two prior felony convictions
of either a crime of violence or a controlled substance offense.
5
Wimer concedes that he meets the first two requirements. He further concedes
that his 1976 second-degree murder conviction in California counts as one prior
crime of violence under section 4B1.1. He challenges, however, the
applicability of the two other prior crimes of violence listed in his presentence
report: (1) first-degree assault in Sedgwick County, Colorado, and (2) firstdegree assault in Weld County, Colorado, both of which arose from a series of
events on March 24, 1976. See Appellant's Br.App. "J" at 4.
At sentencing, appointed counsel for Wimer, Virginia Grady, stated that she
had reviewed the presentence report with him and they had no objections to it.
R. Vol. I, Tab 4, Ex. A at 4. The district court sentenced Wimer to 120 months
in prison, departing downward from the 168-month minimum prescribed in the
presentence report.3 Neither Wimer nor the government appealed the sentence.
Wimer's failure to appeal his sentence would generally preclude him from
challenging it under 2255 unless he could show cause for his default and
resulting prejudice, or a fundamental miscarriage of justice. United States v.
Allen, 16 F.3d 377, 378 (10th Cir.1994). Wimer, however, alleges that his
counsel was ineffective in failing to object to and appeal his sentence. His claim
of ineffectiveness is appropriately brought under 2255, see Beaulieu v. United
States, 930 F.2d 805, 806 (10th Cir.1991), and if established it would excuse
any procedural default.
To establish a Sixth Amendment violation based on ineffective assistance of
counsel, Wimer must show that his counsel's performance was deficient and
that he was prejudiced by the alleged deficiency. Strickland v. Washington, 466
U.S. 668, 687 (1984); see also Lockhart v. Fretwell, 113 S.Ct. 838, 842-43
(1993). Wimer's allegations of deficient performance and prejudice are
meritless if he was correctly sentenced as a career offender. We conclude that
he was.
As Wimer repeatedly states, his Sedgwick County conviction was reversed by
the Colorado Court of Appeals because of a violation of his speedy trial right.
See R. Vol. I, Tab 1, Ex. A. Consequently, that conviction cannot count for
career offender purposes. U.S.S.G. 4A1.2, comment. (n.6); U.S.S.G. 4B1.1,
comment. (n.4). The presentence report said nothing of the reversal, but this
oversight was harmless because Wimer's Weld County conviction counts as his
second prior crime of violence under section 4B1.1.4
10
Wimer contends that because his Weld County and Sedgwick County
convictions were designated as "related cases" in the presentence report, and
therefore counted as only one conviction in assigning criminal history points,
the reversal of the latter conviction precludes the use of the former to enhance
his sentence under the doctrine of "double jeopardy." This argument is
meritless. The record clearly shows that his convictions in Weld County and
Sedgwick County were not for the "same offense." The respective charging
papers for these offenses and the presentence report state that on March 24,
1976, Wimer and two other men assaulted C.L. Barker, a police officer, as they
fled a store in Morgan County (the Morgan County charges were later
transferred to Sedgwick County), and in the course of fleeing from police in
their vehicle they assaulted Deputy Santiago Perez in Weld County, some thirty
miles away from the start of the chase. Appellant's Br.App. "A","B","K".
Under Colorado law, crimes are separate for double jeopardy purposes when
they involve different places, different times, and different victims, even if they
occurred during one continuous criminal transaction. See People v. Mendoza,
549 P.2d 766, 768 (Colo.1976) (en banc); Johnson v. People, 384 P.2d 454, 457
(Colo.1963), cert. denied, 376 U.S. 922 (1964) (en banc).
11
In sum, Wimer has failed to show that he would have been sentenced differently
had his counsel objected to and appealed his classification as a "career
offender" under the Sentencing Guidelines. Although neither the presentence
report nor the district court's findings in dismissing this petition made clear that
Wimer's Sedgwick County conviction had been reversed and could not be used
in calculating his criminal history, his classification as a "career offender" was
amply supported in the report, satisfying the requirements of Fed.R.Crim.P.
32(c), and his sentence was correctly determined.
12
The order of the district court dismissing the motion to vacate, set aside, or
correct the sentence is AFFIRMED.
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of the court's General
Order filed November 29, 1993. 151 F.R.D. 470
We have received and considered appellant's letter and attachments filed with
this court on May 31, 1994. They do not affect our disposition
Wimer's classification as a "career offender" raised his criminal history
category from IV to VI, his base offense level from 23 to 30, and his
corresponding sentencing range from 70-87 months to 168-210 months. Wimer
was sentenced on May 30, 1991, so the guidelines manual in effect was the
United States Sentencing Commission, Guidelines Manual (Nov.1990)
We supplemented the record with the Weld County judgment of conviction
against Wimer in case number 76-9802 (first-degree assault) and the Weld
County docket sheet for that case, which shows that the conviction was
appealed from and collaterally attacked several times, with the end result being
that his conviction was affirmed but his original sentence of thirty to forty years
was vacated and he was resentenced to a term of five years to six years and ten
months
