NOT PRECEDENTIAL


                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                 __________

                                      No. 13-3667
                                      __________

                          UNITED STATES OF AMERICA

                                            v.

                               FREDERICK BENTON,
                                          Appellant
                                   __________

                   On Appeal from the United States District Court
                            for the District of New Jersey
                      (D.C. Criminal No. 2-13-cr-00265-001)
                    District Judge: Honorable William H. Walls

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 20, 2014

  BEFORE: McKEE, Chief Judge, CHAGARES, and NYGAARD, Circuit Judges

                               (Filed: October 23, 2014 )
                                      __________

                                      OPINION*
                                      __________

* This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
                              constitute binding precedent.
                                      ___________
NYGAARD, Circuit Judge.

       Appellant Frederick Benton pleaded guilty to distributing 100 grams or more of

heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2. Benton

and the Government stipulated to a total offense level of 23 and further agreed that

neither party would request an upward or downward departure, adjustment, or variance.

The parties further agreed to the reasonableness of any sentence that fell within the

Guidelines range appropriate for the stipulated offense level. The plea agreement also

contained an appellate waiver provision by which Benton agreed not to appeal his

sentence as long as it fell within or below the Guideline’s range applicable to an offense

level of 23. This appellate waiver excluded, however, any appeal from the District

Court’s calculation of Benton’s criminal history category.

       After a comprehensive colloquy, the District Court accepted Benton’s plea of

guilty. Prior to sentencing, the United States Probation Office prepared a Presentence

Investigation Report and Sentencing Memorandum. The Probation Office calculated

Benton’s total offense level to be 23 (which the parties had previously agreed to), and

assigned him nine criminal history points based on prior criminal convictions.1 Benton

objected to 8 of the 9 proposed criminal history points. He argued that his state

convictions were improperly counted for various reasons. For example, Benton

maintained that one of his New York convictions was based on an improperly amended

1
  Benton was assessed three criminal history points for a 1989 conviction in Alabama,
three points for a 2000 conviction in New York, two points for another New York
conviction in 2000 (which was referred to in the District Court as a “1999” conviction,
apparently using the date of arrest, not conviction), and one criminal history point for a
2008 New York conviction.
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indictment. Benton also argued that another New York conviction should not have been

counted against him because “it would have been beyond the ten year time limit,” if it

had “been resolved in a more expeditious fashion.” Benton also claims this same

conviction was the result of a “coercive atmosphere.” Benton lastly challenged his

conviction from Alabama, arguing it was based on “insufficient, nonhearsay proof,” and

that the Alabama case against him was closed until he turned himself in to the Alabama

authorities.

       The Government argued that Benton’s prior convictions were all entitled to a

presumption of regularity. The District Court, after reviewing Benton’s arguments with

counsel in open court, agreed with the Government. Benton’s criminal history was

pegged at Category IV. Using the total offense level of 23, the resulting Guidelines range

was 70-87 months’ imprisonment. The District Court next discussed its sentencing

rationale, and sentenced Benton to 70 months, which was the bottom of the suggested

Guidelines range. Pursuant to the exception stated in his appellate waiver, Benton

appealed the District Court’s calculation of his criminal history

       We apply a presumption of regularity to court proceedings. See United States v.

Jones, 

, 698 (3d Cir.2003) (holding that, absent evidence to the contrary,

court proceedings are presumed to be procedurally proper). On appeal, Benton contends

that the District Court erred in adding points to his criminal history calculation for his

prior convictions in New York. He argues that the previous New York convictions were

based on involuntary guilty pleas and that he was deprived of the effective assistance of

counsel during those proceedings.

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       In Custis v. United States, 

(1994), the United States Supreme Court

held that, with the exception of convictions obtained in violation of the right to counsel as

described in Gideon v. Wainwright, 

(1963), a defendant in a federal

sentencing proceeding has no right to collaterally attack the validity of previous state

convictions which are used to enhance the federal sentence. 

United States v.

Escobales, 

(3d Cir. 2000). Benton never challenged his guilty plea as

involuntary in the New York courts or federal habeas proceedings. Nor did he ever claim

that he has a statutory right to make such a challenge or that a particular sentencing

guideline gives him the right to raise such a claim now. Further, he has not raised any

claim on appeal that his right to counsel under Gideon was violated. For that very reason,

Benton cannot now collaterally attack his New York convictions which the District Court

used to enhance his federal sentence. If Benton had wished to challenge the

constitutionality of his New York convictions, he had to do so in that state’s courts.

Since he did not, the District Court correctly added criminal history points for Benton’s

prior convictions in New York.

       To the extent Benton attempts to challenge the reasonableness of the District

Court’s sentence, the plea agreement’s appellate waiver forecloses any review by this

court. Benton agreed to waive any appeal of his sentence if it “fell within or below the

Guideline’s range that results from the agreed total Guidelines offense level of 23.” The

District Court sentenced Benton to 70 months--a sentence within the Guidelines range.

His waiver, therefore, is valid unless he can demonstrate it was not knowing or voluntary



                                             4
or that his waiver would result in a miscarriage of justice. Benton cannot make such a

showing on this record.

       For the foregoing reasons, we will affirm the judgment of sentence imposed by the

District Court.




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