     Case: 10-10914     Document: 00511759194         Page: 1     Date Filed: 02/15/2012




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

                                                                            FILED
                                                                         February 15, 2012
                                     No. 10-10914
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MANUEL GUERRERO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:10-CR-67-1


Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Manuel Guerrero, federal prisoner # 29093-177,
appeals the 235-month prison sentence imposed after his guilty plea conviction
for conspiracy to possess 100 kilograms or more of marijuana with intent to
distribute. He claims that the district court erred in applying the career offender
enhancement because one of his Texas state convictions on which the district
court relied was obtained in violation of his Sixth Amendment right to counsel.
Although a defendant generally may not collaterally attack a prior state

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 10-10914

conviction that is used to enhance his federal sentence, Texas state law allows
such an attack when the defendant alleges that the conviction was “void” or
“tainted by a constitutional defect.” United States v. Rubio, 629 F.3d 490, 493
(5th Cir. 2010).
      We review the district court’s application of the Sentencing Guidelines de
novo and its findings of fact for clear error. United States v. Rodriguez, 602 F.3d
346, 362 (5th Cir. 2010). We also review de novo claims that the district court
incorrectly applied constitutional standards. See United States v. Hughes, 602
F.3d 669, 672 (5th Cir. 2010).
      Guerrero asserts that his 2001 Texas guilty-plea conviction for possession
of methamphetamine with intent to deliver, for which he received a deferred
disposition of 10 years community supervision, cannot be used for purposes of
the career offender enhancement because it was obtained in violation of his
Sixth Amendment rights; specifically, that he was not represented by counsel
and did not waive his right to counsel during the subsequent in absentia
probation revocation proceedings that he requested.         He asserts that the
corrected judgment setting aside the deferred adjudication order and imposing
a five-year sentence was not entitled to a presumption of regularity or
truthfulness regarding whether he waived his right to counsel. He also contends
that the deferred adjudication order cannot be used as a prior felony conviction
because, pursuant to the Full Faith and Credit Act, 28 U.S.C. § 1738, the
provision in the corrected judgment setting aside the deferred adjudication order
must be given full effect even though the corrected judgment is invalid for
purposes of the career offender enhancement.
      Section 4A1.2(f) of the United States Sentencing Guidelines states that “[a]
diversionary disposition resulting from a finding or admission of guilt . . . in a
judicial proceeding is counted as a sentence under § 4A1.1(c) even if a conviction
is not formally entered.” Guerrero concedes that he was represented by counsel
when he entered his guilty plea, and he does not claim that his constitutional

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                                    No. 10-10914

rights were violated during the guilty-plea hearing. Accordingly, the deferred
adjudication order could not have been tainted by a Sixth Amendment
constitutional violation.
      The commentary to the Guidelines makes clear that “[s]ection 4A1.2(f)
requires counting prior adult diversionary dispositions if they involved a judicial
determination of guilt or an admission of guilt in open court,” thus, reflecting a
“policy that defendants who receive the benefit of a rehabilitative sentence and
continue to commit crimes should not be treated with further leniency.” § 4A1.2,
comment. (n.9). Furthermore, even when a conviction has been set aside or a
defendant has been pardoned “for reasons unrelated to innocence or errors of
law,” the sentence is still counted. § 4A1.2, comment. (n.10). Guerrero presents
no evidence that the deferred adjudication order was set aside because of his
innocence or some error of law. Consequently, the deferred adjudication still
counts towards his status as a career offender. See United States v. Daniels, 588
F.3d 835, 837-38 (5th Cir. 2009).
      We have not yet addressed whether, under circumstances like those of the
instant case, revoking a defendant’s probation in absentia amounts to a Sixth
Amendment denial of counsel. We need not decide this question today, however,
because — even if the corrected judgment adjudicating his guilt was without force
and effect because of a violation of Guerrero’s Sixth Amendment rights –– its
setting aside of the deferred adjudication order would also be null and void.
Therefore, the deferred adjudication order would still be in effect and could serve
as a proper predicate to establishing Guerrero’s career offender status. See
§ 4A1.2(f); § 4A1.2, comment. (n.10).
      Contrary to Guerrero’s assertions otherwise, the Full Faith and Credit Act
is not implicated in this case, as explained in United States v. Fazande, 487 F.3d
307, 308-09 (5th Cir. 2007). There, we concluded that the principles embodied in
the full faith and credit statute are not applicable when “a federal court
endeavors to determine how a particular state criminal proceeding is to be

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                                 No. 10-10914

treated, as a matter of federal law, for the purpose of sentencing the defendant
for a distinct and unrelated federal crime.”
      The judgment of the district court is, in all respects, AFFIRMED.




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