United States v. Thomas ( 1994 )

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
12-20-1994
United States v. Thomas
Precedential or Non-Precedential:
Docket 94-1542
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Recommended Citation
"United States v. Thomas" (1994). 1994 Decisions. Paper 224.
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 94-1542
UNITED STATES OF AMERICA
v.
AARON THOMAS,
Appellant
On Appeal from the United States Court of Appeals
for the Eastern District of Pennsylvania
(D.C. Crim. No. 93-00377)
Submitted under Third Circuit LAR 34.1(a)
December 19, 1994
BEFORE: GREENBERG, SAROKIN, and WEIS, Circuit Judges
(Filed: December 20, 1994)
Michael R. Stiles
United States Attorney
Walter S. Batty, Jr.
Assistant United States Attorney
Chief of Appeals
Suzanne B. Ercole
Assistant United States Attorney
Suite 1250
615 Chestnut Street
Philadelphia, PA 19106
Attorneys for Appellee
David L. McColgin
Assistant Federal Defender
Elaine Demasse
Assistant Federal Defender
Senior Appellate Counsel
Maureen Kearney Rowley
Chief Federal Defender
Defender Association of
Philadelphia
Federal Court Division
437 Chestnut Street, Suite 800
Lafayette Building
Philadelphia, PA 19106
Attorneys for Appellant
OPINION OF THE COURT
GREENBERG, Circuit Judge.
Aaron Thomas appeals from a judgment of conviction and
sentence entered on April 26, 1994, sentencing him to a custodial
term of 169 months to be followed by a three-year term of
supervised release. The sentence also included a provision for
restitution not implicated on this appeal. The court imposed the
sentence on Thomas' conviction based on a plea of guilty to bank
robbery in violation of 18 U.S.C. § 2113(a). Through the
application of the career offender section of the Sentencing
Guidelines, his guideline range was established as 151 to 188
months predicated on a total offense level of 29. See U.S.
Sentencing Guidelines § 4B1.1 (1993). Without the career
offender designation, his total offense level would have been 22.
Thomas' career offender status was calculated on the
basis of two convictions, a 1987 burglary conviction in
Philadelphia and a 1992 robbery conviction in Bucks County,
Pennsylvania, both convictions having been based on pleas of
guilty. As he did in the district court, Thomas challenges the
use of his 1992 conviction for robbery to fix his status as a
career offender. He predicates this argument on the contentions
that he believed in 1992 that he was pleading guilty only to
theft and that the state judge failed to inform him of several of
his constitutional rights when he pleaded guilty. The district
court found that the state convictions were valid.
We reject Thomas' argument. In Custis v. United
States, 114 S. Ct. 1732 (1994), the Supreme Court held that except
when a conviction is obtained in violation of a defendant's right
to counsel, a defendant has no constitutional or statutory
grounds to attack collaterally the validity of previous state
convictions cited to enhance his sentence under the Armed Career
Criminal Act. 18 U.S.C. § 924(e). We previously had held in
United States v. Brown, 991 F.2d 1162 (3d Cir. 1993), that the
Sentencing Guidelines grant discretion to district courts to
entertain constitutional challenges at sentencing to prior
convictions used to establish criminal histories. But we reached
this conclusion on the authority of a background note to U.S.
Sentencing Guideline § 4A1.2 which we construed to mean "that the
courts should work out their own procedural rules regarding
efforts by defendants to challenge convictions not previously
held unconstitutional." Brown, 991 F.2d at 1166. Thus, we did
not conclude in Brown that either the Guidelines or the
Constitution itself compelled us to permit constitutional
challenges to prior convictions used to establish criminal
histories under the guidelines.1
1
. The background note on which we relied in United States v.
Brown recited that the Sentencing "Commission leaves for court
determination the issue of whether a defendant may collaterally
attack at sentencing a prior conviction." This note was deleted
Custis, of course, has altered the situation with
respect to challenges to prior convictions. Furthermore, we see
no principled way to distinguish a challenge to a prior
conviction used to justify an enhancement under the guidelines
from a prior conviction used to justify an enhancement under the
Armed Career Criminal Act. Custis teaches that unless the
statute under which the defendant is sentenced explicitly
provides the right to attack collaterally prior convictions used
to enhance the sentence, no such right should be implied.
Custis, 114 S. Ct. at 1736 (contrasting the Armed Career Criminal
Act with other statutes "expressly permit[ting] repeat offenders
to challenge prior convictions that are used for enhancement
purposes"). In Brown itself we acknowledged that U.S. Sentencing
Guideline § 4A1.2 provides no such right explicitly, but only
authorizes courts to work out their own procedural rules. Brown,
991 F.2d at 1166. In the absence of such explicit authorization,
Guideline 4A1.2 stands in the same posture as the Armed Career
Criminal Act addressed in Custis.
Consequently, we will follow the lead of the Supreme
Court by holding that a district court, when sentencing a
(..continued)
effective November 1, 1993, when the Commission amended
application note 6 to section 4A1.2 to provide that "With respect
to the current sentencing proceeding, this guideline and
commentary do not confer upon the defendant any right to attack
collaterally a prior conviction or sentence beyond any rights
otherwise recognized in law (e.g., 21 U.S.C. § 851 expressly
provides that a defendant may collaterally attack certain prior
convictions)." We, however, are treating this case as though the
deleted note was still in the commentary and thus rely on Custis
and not the amendment to the commentary to reach our result.
defendant classified as a career offender under section 4B1.1,
cannot entertain a constitutional challenge to the underlying
convictions except in a case in which the defendant's right to
counsel had been denied. In reaching this result, we join the
other courts of appeal which have declined to distinguish section
4B1.1 from the Armed Career Criminal Act for the purpose of
considering challenges to prior convictions. United States v.
Garcia, F.3d , , No. 94-5028 (10th Cir. 1994); United
States v. Killion, 30 F.3d 844, 846 (7th Cir. 1994); United
States v. Jones, 28 F.3d 69, 70 (8th Cir. 1994); United States v.
Jones, 27 F.3d 50, 51-52 (2d Cir.), cert. denied, 115 S. Ct. 377
(1994). See also United States v. Munoz, 36 F.3d 1229, 1237-38
(1st Cir. 1994); United States v. Ullyses-Salazar, 28 F.3d 932,
939 (9th Cir. 1994).
In addition to distinguishing section 4B1.1 from the
Armed Career Criminal Act, Thomas seeks to avoid Custis on two
other bases. First, he contends that inasmuch as the government
did not urge in the district court that he could not challenge
the 1992 conviction, it cannot make that contention now. We
reject this contention because the Supreme Court decided Custis
after the court sentenced Thomas, and the government was not
obliged to make an argument in the district court barred by
Brown. We also observe that the government raises Custis to
affirm rather than to reverse the judgment from which the appeal
was taken. We think that whatever might be true in other
situations, in this unusual case in which the Supreme Court
effectively changed the law after the completion of the district
court proceedings, the government should be permitted to rely on
the new ruling to uphold the district court's judgment.
Second, Thomas contends that Custis does not preclude a
challenge to a prior conviction itself in a state or federal
habeas corpus proceeding nor, in his view, does it preclude a
federal habeas corpus attack to an enhanced sentenced predicated
on an invalid prior conviction. See Nichols v. United States,
114 S. Ct. 1921, 1937 (1994) (Ginsburg, J., dissenting); Custis,
114 S. Ct. at 1746 (Souter, J., dissenting). We, however, have no
reason to address those possibilities. The only issue before us
is whether at the time of the sentencing the district court may
entertain constitutional challenges to underlying convictions
used to enhance sentences. We conclude that, except in cases in
which a conviction was obtained in violation of a defendant's
right to counsel, we should follow Custis and hold that such
challenges are precluded in cases under section 4B1.1.
The judgment of conviction and sentence of April 26,
1994, will be affirmed.