Case: 18-60826      Document: 00515073291         Page: 1    Date Filed: 08/12/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit

                                    No. 18-60826                           FILED
                                  Summary Calendar                   August 12, 2019
                                                                      Lyle W. Cayce
                                                                           Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

TEVIN LADARIUS MITCHELL,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:18-CR-70-1


Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Tevin Ladarius Mitchell appeals the 57-month,
within guidelines range sentence imposed on his guilty plea to unlawful use of
a controlled substance while in possession of a firearm. Mitchell contends that
the district court procedurally erred by assessing him a criminal history point
based on his 2015 Mississippi drug conviction, which he argues is invalid under
state and federal law because (1) he was tried in absentia and (2) he was tried


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 18-60826    Document: 00515073291      Page: 2   Date Filed: 08/12/2019


                                  No. 18-60826

in an adult court as a juvenile. He further asserts that the district court
improperly found the relevant sentencing facts by only a preponderance of the
evidence.
      Mitchell’s contentions are wholly without merit. “[A]bsent an allegation
that the defendant was denied counsel in the prior proceeding, a district court
sentencing a defendant may not entertain a collateral attack on a prior
conviction used to enhance the sentence unless such an attack is otherwise
recognized by law.” United States v. Longstreet, 

, 277 (5th Cir.
2010); accord U.S.S.G. § 4A1.2(d), comment. (n.6). Mitchell neither avers that
he was unrepresented by counsel during his 2015 prosecution nor cites any
legal authority permitting him to collaterally attack his 2015 conviction
through an objection to his criminal history computation. He thus fails to show
error in applying the Guidelines. See United States v. Solis-Garcia, 

, 514 (5th Cir. 2005). Moreover, any such error would be harmless because
subtracting the single point for Mitchell’s 2015 conviction “would leave him in
the same criminal history category and would not affect his sentence.” United
States v. Jackson, 

, 585 (5th Cir. 1994).
      Mitchell’s argument regarding the applicable standard of proof at
sentencing is baseless.    “[A]s a general matter, the burden of proof at
sentencing is by a preponderance of the evidence.” United States v. Brooks,

, 712 (5th Cir. 2012) (internal quotation marks and citation
omitted; brackets in original).     Although he points to this court’s prior
suggestion that there could be cases where a higher burden of proof applies, he
points to no case at all in our circuit that mandates a higher standard of proof
for prior convictions because there is none.
      We AFFIRM the judgment.




                                       2