USCA1 Opinion
July 6, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-2132
UNITED STATES,
Appellee,
v.
DOUGLAS ABRAHAMS,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
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Before
Cyr, Boudin and Lynch,
Circuit Judges.
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Roger A. Cox on brief for appellant.
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Per Curiam. Douglas Abrahams pled guilty to
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conspiring to possess cocaine with intent to distribute and
to distribute cocaine in violation of 21 U.S.C. 846 and was
sentenced to serve 92 months in a federal prison. He
appealed from his sentence. After this court appointed
Attorney Roger Cox as appellate counsel, Cox filed a brief
under Anders v. California, 386 U.S. 738 (1967), on the
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ground that he had been unable to identify any meritorious
ground for appeal. Cox also filed a motion to withdraw as
Abrahams' counsel, notifying Abrahams of his right to file a
separate brief. Abrahams has not filed a brief, and the
deadline for doing so has now passed.
We agree that this appeal presents no meritorious
issues, and so we affirm the sentence. The record indicates
that Abrahams did not believe that he should receive the
enhanced base offense level accorded career offenders under
the United States Sentencing Guidelines Manual 4B1.1 (Nov.
1993). Relying on Abrahams' previous convictions for robbery
in Maine and for assault and battery with a dangerous weapon
in Massachusetts, the probation officer found that Abrahams
was a career offender within the meaning of 4B1.1 and so
enhanced Abrahams' base offense level under that guideline.1
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1. The convictions were a June 25, 1984 conviction for
robbery in Cumberland County, Maine, and an April 15, 1988
conviction for assault and battery by means of a dangerous
weapon in Newburyport, Massachusetts.
In a letter to the probation officer, Abrahams' counsel
objected to the use of those convictions to establish
Abraham's career offender status. According to counsel,
Massachusetts had reneged on a plea agreement promising
Abrahams a concurrent sentence on the Massachusetts charge if
he pled guilty to both the Maine and Massachusetts charges.
Counsel also stated that no mittimus had ever been filed in
the Massachusetts conviction.
At sentencing, counsel reasserted his objection
based on Massachusetts' alleged violation of its plea
agreement with Abrahams, although his objection may have been
limited to the Maine conviction. Citing Custis v. United
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States, 114 S. Ct. 1732, 1735-36, 1738-39 (1994), the court
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overruled the objection because Abrahams had been represented
by counsel in those convictions. In Custis, the Supreme
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Court held that the Armed Career Criminal Act, 18 U.S.C.
924(e), did not specifically permit any such collateral
attack, and it declined to imply any such right under the
statute. Id. at 1735-36. The Court also held that
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defendants could attack a prior state court conviction used
for sentence enhancement under the Constitution only if they
had not been represented by counsel at all in connection with
the prior conviction. Id. at 1738.
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The district court correctly found that Custis
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foreclosed any constitutionally based collateral attack on
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Abrahams' prior state convictions at his sentencing.
According to the presentence report, Abrahams had been
represented by counsel in both the Maine and Massachusetts
convictions. His counsel affirmed that fact at the
sentencing hearing. In addition, the Sentencing Guidelines
do not independently permit collateral attack on prior state
convictions used to establish career offender status under
guideline 4B1.1. Guideline 4A1.2 applies in counting
convictions under 4B1.1. See USSG 4B1.2, comment. (n.4).
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Application note 6 of that guideline states that "this
guideline and commentary do not confer upon the defendant any
right to attack collaterally [in a current sentencing
proceeding] a prior conviction or sentence beyond any such
rights otherwise recognized in law[.]" At sentencing,
counsel did not assert that any other statute, rule or
regulation independent of the Guidelines gave Abrahams any
such right, and, as noted, the Constitution conferred no such
right on Abrahams here. See United States v. Munoz, 36 F.3d
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1229, 1337 (1st Cir. 1994) (the constitutional question
resolved in Custis is the same under the sentencing
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guidelines as under the Armed Career Criminal Act), cert.
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denied, 115 S. Ct. 1164 (1995).
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Accordingly, the court did not err in accepting the
probation officer's determination that Abrahams was a career
offender within the meaning of 4B1.1. See United States v.
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Garcia, 42 F.3d 573, 578-81 (10th Cir. 1994); United States
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v. Jones, 28 F.3d 69, 70 (8th Cir. 1994) (both concluding, on
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the basis of application note 6 in the 1993 USSG Manual, that
a defendant, who had been found to be a 4B1.1 career
offender had no right to collaterally attack his prior
convictions where he had been represented by counsel in those
convictions and had not pointed to any other law that would
authorize such a challenge); compare United States v. Isaacs,
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14 F.3d 106, 109-10 & n.3 (1st Cir. 1994) (after 1990,
application note 6 precluded collateral review of prior
convictions at sentencing), limitation on other grounds
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recognized in United States v. Cordero, 42 F.3d 697, 701 (1st
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Cir. 1994).
We have reviewed the transcripts of Abrahams' plea
hearing and sentencing hearing carefully and have found no
error that would warrant this appeal. Since Cox has complied
with all requirements of Loc. R. 46.4(a), we hereby grant his
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motion to withdraw as counsel and affirm Abrahams' sentence.
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It is so ordered.
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