Case: 14-10353   Date Filed: 10/30/2014   Page: 1 of 7


                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 14-10353
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 1:13-cr-00015-WLS-TQL-6



UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                 versus

JEREMIAH ZACK ROGERS,

                                                        Defendant-Appellant.

                     ________________________

              Appeal from the United States District Court
                  for the Middle District of Georgia
                    ________________________

                           (October 30, 2014)
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Before TJOFLAT, WILSON, and JORDAN, Circuit Judges.

PER CURIAM:

      Jeremiah Zack Rogers (Rogers) appeals the 200-month sentence imposed

following entry of his guilty plea to one count of conspiracy to possess with intent

to distribute cocaine, marijuana, and crack cocaine in violation of 21 U.S.C. § 846

in conjunction with §§ 841(a)(1), 841(b)(1)(A)(ii) and (iii), and 841(b)(1)(B)(vii).

The presentence investigation report (PSI) determined that Rogers was a career

offender under U.S.S.G. § 4B1.1 based on two prior convictions: (1) a 1998

conviction for sale of cocaine, and (2) a 2006 conviction for crossing guard lines

with marijuana and possession of marijuana with intent to distribute.

      Pursuant to a written plea agreement, Rogers faced a statutory minimum

sentence of ten years’ imprisonment with a maximum life sentence. At his

sentencing hearing, Rogers raised multiple objections to the PSI, including an

objection to his being designated a career offender based on his assertion that he

received ineffective assistance of counsel in connection with his 2006 conviction.

In the alternative, Rogers argued that his career offender designation

overrepresented the seriousness of his criminal history based, in part, on the length

of time separating the two predicate offenses. On these bases, Rogers requested a

downward departure pursuant to U.S.S.G. § 4A1.3.




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      The district court overruled Rogers’s objections and denied his motion for a

downward departure. In doing so, the district court noted that Rogers “did not

disengage from criminal conduct” following his 1998 conviction and “remained in

trouble throughout that period of time.” It also concluded that Rogers’s ineffective

assistance argument was, in effect, an impermissible attempt to collaterally attack

his 2006 state court conviction. The district court then determined that Rogers’s

guideline range was 262 to 327 months’ imprisonment. After considering the 18

U.S.C. § 3553(a) factors and the government’s own motion for a downward

departure based on Rogers’s acceptance of responsibility and substantial assistance

to authorities, the district court imposed a sentence of 200 months’ imprisonment.

      On appeal, Rogers argues that the district court erred in denying his motion

for a downward departure outside of the sentencing guideline range. For one thing,

Rogers again contends that his career offender designation overrepresented the

seriousness of his criminal history. He emphasizes that he was very young when

he committed the underlying offenses that resulted in his 1998 cocaine conviction

and that those offenses all involved minor amounts of cocaine. He also points to

the eight-year gap between his 1998 and 2006 state court convictions.

      Rogers also disputes that his objection to the district court’s use of his 2006

state court conviction in upholding his career offender designation was an

improper collateral attack on that prior state sentence. As an indigent defendant,


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Rogers was provided counsel by the Office of the Public Defender for the South

Georgia Judicial Circuit. Rogers avers that his trial attorney’s deficient

representation—due, in part, to an alleged conflict of interest—amounted to a

complete denial of counsel. As such, he contends that his claim goes beyond the

type of ineffective assistance claim that Custis v. United States 1 held could not be

used to collaterally attack a prior conviction relied on for sentence enhancement

purposes.

       For the reasons set forth below, we affirm the district court’s judgment.

                                               I.

       We lack jurisdiction to review a district court’s discretionary decision to

deny a downward departure unless the district court incorrectly believed that it

lacked authority to grant the departure. See United States v. Winingear, 

, 1245–46 (11th Cir. 2005) (per curiam). “[W]hen nothing in the record

indicates otherwise, we assume the sentencing court understood it had authority to

depart downward,” and the sentencing court’s decision not to depart downward is

not reviewable. United States v. Dudley, 

, 1228 (11th Cir. 2006)

(internal quotation marks omitted).



       1
         

, 496, 

, 1738 (1994) (holding that, with the sole exception
of convictions obtained in violation of right to counsel, a defendant in a federal sentencing
proceeding has no right to collaterally attack validity of previous state convictions used to
enhance his sentence).
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      Upon review of the record on appeal, we are satisfied that the district court

understood that it had the authority to grant Rogers a downward departure from the

calculated guideline range. There is nothing in the record to indicate otherwise—

indeed, the district court did depart downward from the calculated range of 262 to

327 months in imposing the 200-month sentence. Therefore, we do not have

jurisdiction to review the merits underlying Rogers’s motion for a downward

departure or the district court’s decision to deny it. See United States v. Norris,

, 1283 (11th Cir. 2006).

                                          II.

      Generally, this Court will not allow a defendant to collaterally attack at a

federal sentencing hearing the constitutionality of a prior state court conviction—

unless the prior conviction is “presumptively void.” See United States v. Cooper,

, 1287 (11th Cir. 2000); see also U.S.S.G. § 4A1.2 cmt. n.6 (“[T]his

guideline and 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 . . . .”). “[W]hen a defendant, facing sentencing, sufficiently

asserts facts that show that an earlier conviction is ‘presumptively void,’ the

Constitution requires the sentencing court to review this earlier conviction before

taking it into account.” United States v. Roman, 

, 1120 (11th Cir.

1993) (en banc) (per curiam). We have suggested that “presumptively void”


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convictions “are small in number and are perhaps limited to uncounseled

convictions.” 

limited right to challenge the constitutionality of prior

convictions used for federal sentencing purposes was front and center in Custis v.

United States. The Supreme Court reasoned that, absent specific statutory

authorization, the right to collaterally attack prior convictions used for sentence

enhancement is constrained by the right to have appointed counsel established in

Gideon v. Wainwright. 2 

, 114 S. Ct. at 1738 (“[A] prior

criminal conviction that is constitutionally infirm under the standards of Gideon is

inherently prejudicial and to permit use of such a tainted prior conviction for

sentence enhancement would undermine the principle of Gideon.”). The Court

expressly declined to extend the right to collaterally attack a prior conviction

beyond the right to have appointed counsel as established in Gideon. 

absent any violation of his right to counsel, the Supreme Court held that defendant

Darren Custis was prohibited from using the federal sentencing forum to review

his state convictions. 

114 S. Ct. at 1739.3



       2
        

, 

(1963) (requiring indigent defendant in state-court
proceeding have counsel appointed for him).
       3
          The Supreme Court recognized that defendant Custis could attack his state sentences in
state court or, because he was still “in custody” for purposes of his state convictions at the time
of his federal sentencing, through federal habeas review. See Custis, 511 U.S. at 

.
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      Here, Rogers challenged the constitutionality of his 2006 state court

conviction for the first time at his federal sentencing hearing. As such, the burden

was on Rogers to “sufficiently assert[ ] facts” showing that his prior conviction

was “presumptively void.” See 

. Rogers argued before

the district court, and reiterates on appeal, that his trial counsel had a conflict of

interest that rendered his assistance so constitutionally ineffective that his 2006

conviction was, in effect, uncounseled. Rogers points to his trial counsel’s failure

to file a motion for new trial and unilateral withdrawal of a notice of appeal as

further evidence of the wholly ineffective representation afforded to him.

      Unfortunately, the constitutional concerns raised by Rogers’s general claims

of ineffective assistance of counsel do not rise to the level of a jurisdictional defect

resulting from the failure to appoint counsel at all. See 

,

114 S. Ct. at 1738 (noting that failure to appoint counsel for an indigent defendant

is “a unique constitutional defect”). In short, Rogers’s 2006 conviction was not

uncounseled. Because he did not assert facts sufficient to establish that the 2006

conviction was presumptively void, Rogers failed to “lay a factual foundation for

collateral review.” See 

. Therefore, the district court did

not err in considering Rogers’s 2006 conviction in upholding his designation as a

career offender.

      AFFIRMED.


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