Uncounseled Misdemeanor Counts, Even When Jail Time Resulted

US v. Hawley: Hawley pleaded guilty to two counts each of being a felon in possession of a firearm and distributing heroin. At sentencing, he was attributed one criminal history point for a prior state misdemeanor conviction where he had validly waived his right to counsel and been sentenced to six months in jail. Counting that sentence put Hawley in Criminal History Category V, rather than IV. He objected that, under Guideline commentary that “prior sentences, not otherwise excluded, are to be counted in the criminal history score, including uncounseled misdemeanor sentences where imprisonment was not imposed,” by its structure, meant that uncounseled sentences were imprisonment was imposed should not count. The district court rejected that argument and sentenced Hawley to 57 months in prison, the bottom of the advisory Guideline range.

On appeal the Fourth Circuit affirmed Hawley’s sentence. The court started by noting that under the language of USSG 4A1.2(c)(1) itself the misdemeanor conviction counted in the criminal history score. It rejected the argument that under “the interpretative canon expression unius est exclusio alterius the “negative implication of Guideline 4A1.2’s background commentary barred the district court from counting prior uncounseled misdemeanor conviction for which imprisonment was imposed – even when, as here, a defendant validly waives his right to counsel.” By contrast, the “background commentary, by its plain language, contemplates that it is providing a non-exhaustive list, an inference of negative implication is inappropriate.” A contrary conclusion, reached by the Second Circuit, was not compelling because that case involved “constitutional problems” related to the waiver of counsel which weren’t present in Hawley’s case.