                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 14a0717n.06

                                             No. 13-2406                                      FILED
                                                                                        Sep 11, 2014
                            UNITED STATES COURT OF APPEALS                          DEBORAH S. HUNT, Clerk
                                 FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                               )
                                                        )
       Plaintiff-Appellee,                              )
                                                        )       ON APPEAL FROM THE
v.                                                      )       UNITED STATES DISTRICT
                                                        )       COURT FOR THE EASTERN
FAHED IDAN HAMAD,                                       )       DISTRICT OF MICHIGAN
                                                        )
       Defendant-Appellant.                             )
                                                        )




       BEFORE: SUTTON and KETHLEDGE, Circuit Judges; ROSENTHAL, District Judge.*


       PER CURIAM. Fahed Idan Hamad was convicted in 2013 of conspiring to rob a pharmacy

at gunpoint to get prescription drugs to sell. The district court sentenced him as a career offender,

imposing a 210-month prison term. He appeals his sentence on one ground: that one of the two

predicate convictions could not be counted toward career-offender status. We review a district

court’s decision that a prior conviction is a predicate offense for career-offender status de novo, see

United States v. Baker, 559 F.3d 443, 450 (6th Cir. 2009), and we affirm.

       Hamad was 16 in 2008 when he shot a rifle 17 times at two individuals and was indicted for

felony assault. He was classified as an adult under Michigan law but allowed to plead guilty under




              *
              The Honorable Lee H. Rosenthal, United States District Judge for the Southern District
      of Texas, sitting by designation.
No. 13-2406               United States v. Hamad                                      Page 2

a Michigan judicial diversionary program known as the Holmes Youthful Trainee Act (HYTA).

M.C.L. 762.11. That program permits young offenders to plead guilty but avoid having judgment

entered on their convictions unless their youthful-trainee status is terminated or revoked before they

are released from the program.

       Hamad pleaded guilty to assault in 2009. Judgment was deferred under the HYTA,

conditioned on his compliance with the terms of the youthful-trainee program. Hamad’s youthful-

trainee status was revoked when he was convicted of a home invasion — another felony crime of

violence — in 2010, and judgment was entered on his 2009 guilty plea and conviction for assault.

       In 2013, a jury found Hamad guilty of robbing the pharmacy at gunpoint and convicted him

of conspiracy to interfere with commerce by robbery and conspiracy to possess controlled substances

with the intent to distribute them, in violation of 18 U.S.C. § 1951 and 21 U.S.C. § 841. The federal

district court considered the 2009 and 2010 state felony convictions in sentencing Hamad as a career

offender under § 4B1.1 of the Sentencing Guidelines. Hamad argues that the 2009 assault conviction

is not a predicate conviction because he was statutorily ineligible for the deferred adjudication he

received under the HYTA after he pleaded guilty.

       Hamad is correct that when he pleaded guilty in 2009, he was ineligible for the HYTA

diversionary program. The HYTA statute covers individuals who plead guilty to a “criminal offense

committed on or after the individual’s seventeenth birthday but before his or her twenty-first

birthday. . . .” M.C.L. 762.11. Hamad was 16 when he committed the assault. But while he is right

about being statutorily ineligible for the diversionary program, he is wrong that this prevented the

federal court from using his 2009 conviction as one of the two predicate offenses to establish federal

career-offender status.
No. 13-2406            United States v. Hamad                                         Page 3

       Federal law determines whether a state criminal offense is a prior conviction that can serve

as a qualifying offense for a sentencing enhancement under federal sentencing statutes. See United

States v. Pritchett, 749 F.3d 417, 424 (6th Cir. 2014). Federal law is clear that “a guilty plea alone

is enough.” Id. at 425 (quoting Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 112 (1983)). The

Sentencing Guidelines state that while diversion without a finding of guilt is not counted as an

offense for a Sentencing Guidelines enhancement, a guilty plea or other finding of guilt is counted,

even if a conviction is not formally entered. U.S.S.G. § 4A1.2(f). A juvenile adjudication may also

serve as a prior conviction under the Guidelines. U.S.S.G. § 4A1.2(d) and comment (n.7). In

Pritchett, this court joined other circuits in holding that a deferred, expunged, or dismissed state

conviction resulting from a state judicial diversionary program counts as a prior conviction for

enhancement under 21 U.S.C. § 841(b)(1)(A). 749 F.3d at 427. A diversionary disposition resulting

from a guilty plea is counted as a conviction that can enhance a sentence, even if judgment is never

entered. Id., 749 F.3d at 424–25; see also United States v. Graham, 622 F.3d 445, 460 n.15 (6th Cir.

2010) (noting that this circuit has “rejected the argument that a first-offender status adjudication

resulting in a sentence of probation is not a ‘prior conviction for a felony drug offense [that] has

become final’ for § 841 purposes” (quoting United States v. Miller, 434 F.3d 820 (6th Cir. 2006)).

In Pritchett, the court noted that a “prior conviction” is treated the same under § 4B1.1 of the

Sentencing Guidelines and 21 U.S.C. § 841(b)(1)(A). 749 F.3d at 426. This case is even easier than

the guilty plea without judgment discussed in Pritchett because the state court did enter judgment

on Hamad’s guilty plea and conviction.

       Hamad’s argument that the state court lacked jurisdiction to enter the judgment because he

was not eligible for the diversionary disposition is without merit. To the extent this argument is a
No. 13-2406            United States v. Hamad                                          Page 4

collateral attack on the state-court conviction, it is barred because he has not identified a statute

allowing such an attack, claimed a denial of his right to counsel, or shown that the state court vacated

the conviction. See Custis v. United States, 511 U.S. 485 (1994). And Hamad’s jurisdictional

argument ignores the fact that while state law made him ineligible for the youthful-trainee program,

he was charged as an adult. There is no basis to conclude that the state court lacked jurisdiction to

accept his guilty plea or, after he committed another violent felony, to enter the deferred judgment

of conviction.

       The district court properly found Hamad to be a career offender. We affirm.
