United States v. Abisai Loya-Guzman ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 97-1500
___________
United States of America, *
*
Appellee, *
* Appeal from the United
States
v. * District Court for the
* District of Nebraska.
Abisai Loya-Guzman, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: August 5, 1997
Filed: August 19,
1997
___________
Before FAGG, BOWMAN, and MURPHY, Circuit Judges.
___________
PER CURIAM.
Abisai Loya-Guzman pleaded guilty to possessing
methamphetamine with intent to distribute, in violation
of 21 U.S.C. § 841(a)(1) (1994). Loya-Guzman's total
offense level of nineteen and Category III criminal
history called for a sentencing guidelines imprisonment
range of thirty-seven to forty-six months. Nevertheless,
the District Court1 sentenced him to the statutory minimum
sentence of sixty months, see 21 U.S.C. § 841(b)(1)(B)
1
The Honorable Thomas M. Shanahan, United States District Judge for the
District of Nebraska.
(1994), and five years supervised release because Loya-
Guzman had
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more than one criminal history point and thus was not
entitled to relief under U.S. Sentencing Guidelines
Manual § 5C1.2(1) (1995) (providing for sentencing in
accordance with guidelines range, despite any statutory
minimum sentence, if defendant meets certain conditions,
including not having more than one criminal history point
as determined under guidelines). Loya-Guzman appeals,
and we affirm.
As he did in the District Court, Loya-Guzman argues
that he is entitled to relief under section 5C1.2(1)
because of the District Court's improper assessment of
criminal history points based on two of his prior state
convictions. For purposes of section 5C1.2(1), criminal
history points are determined under chapter four of the
guidelines. Id. § 5C1.2 comment. n.1. We review de novo
the District Court's interpretation of chapter four of
the guidelines, and we review for clear error the
District Court's application of chapter four to the
facts. See United States v. Strange, 102 F.3d 356, 361
(8th Cir. 1996).
Loya-Guzman argues that one of his prior convictions
is invalid for purposes of sentencing on the instant
offense because he was advised of his constitutional
rights in Spanish by means of a video and because the
underlying state court documents create an ambiguity as
to whether he was represented by counsel when he pleaded
guilty. He argues that his other conviction is invalid
because it is unclear whether the judge informed him of
the possible penalty of probation before he pleaded
guilty. We address Loya-Guzman's challenge only
concerning the alleged lack of counsel; as the District
Court recognized, he cannot otherwise collaterally attack
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his prior state convictions during his sentencing for the
instant offense. See U.S. Sentencing Guidelines Manual
§ 4A1.2 comment. n.6 (1995) (stating that guideline and
accompanying commentary "do not confer upon the defendant
any right to attack collaterally a prior conviction or
sentence beyond any such rights otherwise recognized in
law"); United States v. Jones, 28 F.3d 69, 70 (8th Cir.
1994) (per curiam) (concluding that courts must follow
plain meaning of section 4A1.2 n.6 unless Constitution
requires court to allow a collateral attack at
sentencing; "Constitution only requires federal courts to
permit a collateral
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attack on an earlier state conviction during federal
sentencing when the defendant asserts the state court
violated the defendant's right to appointed counsel").
We agree with the District Court that Loya-Guzman
failed to carry his burden of demonstrating he was
uncounseled when he pleaded guilty to the prior offense.
The underlying entry-of-plea transcript clearly shows
that he had counsel before he pleaded guilty, and we are
not persuaded by Loya-Guzman's argument that the written
judgment is inconsistent with the plea transcript. See
United States v. Early, 77 F.3d 242, 245 (8th Cir. 1996)
(per curiam) (concluding that for sentencing purposes,
after "government has carried its initial burden of
proving the fact of conviction, it is the defendant's
burden to show a prior conviction was not
constitutionally valid"); United States v. Redding, 104
F.3d 96, 99 (7th Cir. 1996) (stating that a prior
conviction is presumptively void for sentencing purposes
only where unconstitutional deprivation of counsel is
plainly detectable from the record; where record was at
best ambiguous, defendant presented insufficient basis
for collaterally attacking prior state conviction at
sentencing).
Consequently, we conclude that the District Court
correctly imposed the statutory minimum sentence of sixty
months. See U.S. Sentencing Guidelines Manual § 5G1.1(b)
(1995) (where statutorily required minimum sentence is
greater than maximum sentence imposed by guidelines
range, statutorily required minimum sentence shall be
sentence under guidelines). Accordingly, we affirm.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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