United States v. Antonio Velasquez , 424 F. App'x 600 ( 2011 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2725
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Antonio Amilcar Velasquez, * District of Nebraska.
also known as Antonio *
Velasquez Mazariegos, * [UNPUBLISHED]
also known as Pony, *
*
Appellant. *
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Submitted: May 10, 2011
Filed: June 15, 2011
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Before MURPHY, BEAM, and COLLOTON, Circuit Judges.
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PER CURIAM.
Antonio Amilcar Velasquez (Velasquez) pled guilty to conspiracy to distribute
and possess with the intent to distribute 500 grams or more of a mixture or substance
containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§
841(a)(1), (b)(1), and 846. The district court1 sentenced Velasquez to 121 months'
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
imprisonment after calculating his Guidelines range at 121 to 151 months, based on
a criminal history category of II and an offense level of 31. On appeal, Velasquez
argues that his prior Nebraska conviction for possession of marijuana was
constitutionally infirm and should not have been used to calculate his criminal history
category. We affirm.
In 2000, during a hearing in the County Court of Lancaster County, Nebraska,
Velasquez pled guilty to possession of less than one ounce of marijuana, an infraction
that carried a $100 fine with no possibility of incarceration. See Neb. Rev. Stat. § 28-
416(13)(a) (1999). Velasquez entered his plea without counsel, without being advised
of any rights, and without being informed of the infraction's scienter or quantity
elements. The County Court accepted Velasquez's plea and ordered him to pay a $100
fine.
Ten years later, prior to sentencing for his federal methamphetamine conviction,
Velasquez petitioned the County Court of Lancaster County to vacate his Nebraska
marijuana conviction, asserting that the conviction was constitutionally invalid. The
County Court denied the motion, stating: "The Court finds that although the plea was
taken without advising the defendant of his constitutional rights the Motion to Vacate
was not timely made. It has been ten years since the plea was taken. Therefore the
Court finds the Motion to Vacate the Judgement should be overruled." Velasquez
subsequently filed a motion to clarify whether his marijuana conviction was
constitutionally invalid, but the County Court denied that motion without comment.
At the sentencing hearing in the present case, Velasquez asserted that the
district court could not count the Nebraska marijuana conviction while calculating his
criminal history category because he was not in fact convicted of that crime and, even
if he was, the conviction was constitutionally infirm. The district court overruled
Velasquez's objections, reasoning that (1) Velasquez was not permitted to collaterally
attack the Nebraska conviction for the purpose of challenging his criminal history
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category; and (2) it was unclear whether the Constitution even required the County
Court to advise Velasquez of any particular rights because Velasquez pled guilty to
a mere infraction that carried no possibility of imprisonment. Velasquez reasserts the
same objections on appeal.
We review the district court's interpretation and application of the Guidelines
de novo and its findings of fact for clear error. United States v. Banks, 514 F.3d 769,
780 (8th Cir. 2008). For the purposes of calculating a defendant's criminal history
category, "[o]nce the government has proven the fact of conviction, the defendant
bears the burden of proving the conviction was constitutionally infirm." Id.To prove the fact of Velasquez's Nebraska marijuana conviction, the
government submitted a certified record of the conviction, including the criminal
complaint, the plea and sentencing transcript, the County Court's order denying
Velasquez's motion to vacate the judgment, and a document related to the payment of
the $100 fine. These documents were sufficient to prove the fact of Velasquez's
conviction and, therefore, the burden shifts to Velasquez to prove that the conviction
was constitutionally infirm.
Application Note 6 to United States Sentencing Guideline § 4A1.2 provides, in
relevant part, that a prior conviction should not be counted for criminal history
purposes if the conviction "ha[s] been ruled constitutionally invalid in a prior case."
Velasquez asserts that the County Court effectively ruled his marijuana conviction
constitutionally invalid when it acknowledged that "the plea was taken without
advising [Velasquez] of his constitutional rights." We disagree. The County Court's
order clearly states that Velasquez's motion to vacate was denied because it was
untimely and, accordingly, the County Court did not rule on the merits of Velasquez's
motion. Moreover, the County Court denied without comment Velasquez's motion
for clarification as to whether his marijuana conviction was constitutionally invalid.
Therefore, Note 6's proscription does not apply here.
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Next, Velasquez asserts that the Constitution permits him to collaterally attack
his marijuana conviction because the conviction was obtained in violation of his rights
to counsel, trial, and due process. To the extent that Velasquez attempts to collaterally
attack his conviction on grounds other than the violation of his right to appointed
counsel, his attack is foreclosed by our precedent. "The Constitution only requires
federal courts to permit a collateral attack on an earlier state conviction during federal
sentencing when the defendant asserts the state court violated the defendant's right to
appointed counsel." United States v. Jones, 28 F.3d 69, 70 (8th Cir. 1994) (per
curiam); see also Custis v. United States, 511 U.S. 485, 494-96 (1994). And,
Velasquez's collateral attack based on the right to appointed counsel is unavailing
because he was convicted of an infraction and no term of imprisonment was actually
imposed. "A State must provide trial counsel for an indigent defendant charged with
a felony . . . but that right does not extend to nonfelony trials if no term of
imprisonment is actually imposed." M.L.B. v. S.L.J., 519 U.S. 102, 113 (1996).
Because Velasquez's Nebraska marijuana conviction did not trigger the right to
appointed counsel, his collateral attack on the conviction is without merit. Nichols v.
United States, 511 U.S. 738, 748-49 (1994) ("[W]e hold . . . that an uncounseled
misdemeanor conviction, valid . . . because no prison term was imposed, is also valid
when used to enhance punishment at a subsequent conviction.").
For the foregoing reasons, we affirm.
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