United States v. Barkley , 100 F. App'x 899 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4649
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHN CHARLES BARKLEY, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Lacy H. Thornburg,
District Judge. (CR-02-195)
Submitted: February 27, 2004 Decided: June 15, 2004
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
R. Deke Falls, Charlotte, North Carolina, for Appellant. Robert J.
Conrad, Jr., United States Attorney, Jack M. Knight, Jr., Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
John Charles Barkley, Jr., pleaded guilty to committing
three bank robberies, 18 U.S.C. § 2113(a) (2000), and was sentenced
as a career offender to a term of 166 months imprisonment. Barkley
contends on appeal that the district court clearly erred in finding
that he made statements amounting to a threat of death during one
of the robberies, U.S. Sentencing Guidelines Manual
§ 2B3.1(b)(2)(F) (2002), and in sentencing him as a career
offender. USSG § 4B1.1. We affirm.
After the bank robbery on July 12, 2002, one of the bank
tellers reported that the robber told her, “Don’t do anything funny
or I will shoot you.” A second teller stated that the robber
warned her, “Don’t make me use my gun.” Barkley conceded that
these statements would constitute a threat of death as defined in
Application Note 6 to § 2B3.1, but proffered at sentencing that he
had not made the statements. The district court accepted the
witnesses’ statements and summarily overruled Barkley’s objection
to the enhancement. We find that the district court did not
clearly err in this respect, see United States v. Love, 134 F.3d
595, 606 (4th Cir. 1998) (stating standard of review), and that the
basis for the court’s finding was implicit in its ruling.
Barkley’s career offender status was based on a prior
conviction for bank robbery and a 1990 conviction for assault on a
female. Barkley maintained that the latter misdemeanor conviction,
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for which he received a two-year sentence of imprisonment, was
constitutionally invalid. At sentencing, Barkley testified that he
was not represented when he pleaded guilty to the assault and that
he did not waive counsel. He acknowledged that he did not remember
all the details of the hearing, but maintained that he was sure he
had not been asked whether he wanted a lawyer. The district court
noted that North Carolina law has long required that any defendant
who may be subject to a term of imprisonment be informed of his
right to counsel, and that Barkley had at least twelve prior
criminal convictions by the time he pleaded guilty to the assault
charge, which led the court to believe that by 1990 he was familiar
with his right to counsel.
While a defendant may challenge at sentencing the
validity of a prior conviction on the ground that he was denied
counsel, Custis v. United States, 511 U.S. 485, 495 (1994), he
bears the burden of showing that the prior conviction is invalid.
United States v. Jones, 977 F.2d 105, 109 (4th Cir. 1992). Barkley
had to overcome the presumption that the state court informed him
of his right to counsel as it was required by statute to do.
Parke v. Raley, 506 U.S. 20, 28-34 (1992) (holding that presumption
of regularity that attaches to final judgments makes it appropriate
for defendant to have burden of showing irregularity of prior
plea). He failed to meet his burden because the district court did
not find Barkley’s testimony sufficiently clear or credible to
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establish that he had not been informed of his right to counsel and
had not waived counsel. Given the court’s assessment of Barkley’s
credibility, which we will not review, United States v. Hobbs, 136
F.3d 384, 391 n.11 (4th Cir. 1998), the court did not err in
finding that Barkley had not been denied his right to counsel and
that he qualified for sentencing as a career offender.
We therefore affirm the sentence imposed by the district
court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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