United States v. Galvan-Zapata ( 2000 )

                                    FOR THE FIFTH CIRCUIT
                                           No. 99-40931
                                         Summary Calendar
                         Appeal from the United States District Court
                             for the Southern District of Texas
                                  USDC No. B-99-CR-10-1
                                      August 30, 2000
    Before POLITZ, HIGGINBOTHAM, and DEMOSS, Circuit Judges.
           Bartolo Galvan-Zapata appeals his conditional- guilty-plea conviction for illegal
    reentry of a deported alien in violation of 8 U.S.C. § 1326(a) & (b)(2), contending that
    the district court improperly used his prior state conviction to enhance his sentence.
    He asserts that the prior conviction was obtained in violation of his constitutional rights.
            Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
    published and is not precedent except under the limited circumstances set forth in 5TH CIR.
    R. 47.5.4.
    The district court held a hearing to review these contentions during the sentencing
           The Government does not question that Galvan was entitled to challenge his
    prior state conviction at his federal offense sentencing, recognizing the applicability of
    and decision in United States v. Canales.1 The Government contends that the district
    court properly considered Galvan’s prior conviction, noting that Galvan’s state habeas
    corpus challenge to that conviction was denied.
           A sentence will be upheld unless it was “imposed in violation of law; imposed
    as a result of an incorrect application of the sentencing guidelines; or outside the range
    of the applicable sentencing guideline and is unreasonable.”2            The trial court’s
    application of the Guidelines is reviewed de novo, and its findings of fact are reviewed
    for clear error.3
           Under the Guidelines, sentences that have been reversed, vacated, or ruled
    constitutionally invalid in a prior case are not to be counted in determining the
    defendant’s prior criminal history.4 When our Canales decision was issued, the
    Guidelines stated, “[t]he Commission leaves for court determination the issue of
    whether a defendant may collaterally attack at sentencing a prior conviction,” and we
    held that a district court could exercise its discretion to entertain a collateral challenge
    960 F.2d 1311
     (5th Cir. 1992),
            United States v. Garcia, 
    962 F.2d 479
    , 480-81 (5th Cir. 1992).
            United States v. Stevenson, 
    126 F.3d 662
     (5th Cir. 1997).
            U.S.S.G. § 4A1.2, comment. (n.6.).
    of a prior conviction used for enhancement purposes under the Guidelines.5 As
    amended effective November 1, 1993, the present Guideline does not confer any right
    on a defendant to attack collaterally a prior conviction or sentence beyond such rights
    otherwise recognized in law.
           In Custis v. United States,6 the Supreme Court held that, with one exception, a
    defendant could not collaterally attack his prior state conviction as part of federal
    sentencing proceedings even though that conviction was used to enhance his sentence
    under the Armed Career Criminal Act. The exception related to the complete denial
    of counsel, which the court recognized as a “unique constitutional defect,” and held that
    a challenge to a prior conviction on this basis could be raised at sentencing.7
           Although we have not addressed in a published decision the continuing validity
    of Canales in light of Custis and the amendment to the Guidelines, in United States v.
    Toliver,8 we held that the holding in Canales was superseded by the amendment to
    § 4A1.2. We determined that Toliver, who was appealing the denial of a § 2255
    motion, could not establish ineffective assistance of counsel based on his counsel’s
    failure to attack collaterally the prior conviction used to calculate his criminal history,
    because “he was not entitled to make such a collateral attack on the prior state
    conviction.” Thus, the holding in Custis was found to extend beyond enhancements
            § 4A1.2, comment. (n.6); App. C, amend. 493; Canales, 960 F.2d at 1315.
    511 U.S. 485
            Id. at 496.
            No. 94-40978 (5th Cir. 1995) (unpublished),
    under the Armed Career Criminal Act and found to apply equally to sentencing
    enhancements under the Guidelines.
          Toliver, albeit unpublished, is binding precedent because it was decided prior
    to January 1, 1996.9 Galvan has not shown that he was denied counsel during the state
    proceeding, nor has he pointed to any independent authority for contesting his prior
    conviction during the federal sentencing proceedings. Therefore, he was not entitled
    to challenge his prior state conviction at sentencing, and his assertion that the district
    court erred in considering this conviction is without merit.
          The judgment appealed is AFFIRMED.
           See FIFTH CIR. RULE 47.5.3; United States v. Taylor, 
    933 F.2d 307
     (5th Cir. 1991).