                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            JAN 8 2004
                                     TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 02-1466
          v.                                         District of Colorado
 JAMES DOUGLAS ROE,                               (D.C. No. 01-CR-262-N)

               Defendant-Appellant.


                            ORDER AND JUDGMENT          *




Before TACHA, Chief Judge , McKAY and McCONNELL , Circuit Judges.


      On April 5, 2002, Defendant James Roe pleaded guilty to one count of

making a false statement in connection with the acquisition of a firearm, in

violation of 18 U.S.C. § 922(a)(6) and § 924(a)(2). According to Mr. Roe’s

interpretation of the Guidelines, the length of his sentence depends on the status

of a 1984 conviction that Defendant sustained in San Diego, California. If the

prior conviction is taken into account, Mr. Roe’s sentence under the Sentencing




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Guidelines will be in the range of 51-63 months. If it is not, the range will be

only 4-10 months.

                                     Background

      In 1984, Mr. Roe received a sentence of four years probation for assault

with a deadly weapon in state court in California. After he sustained separate

convictions and an 18-month prison term in Colorado for willful destruction of

wildlife and hunting with an artificial light, the California court issued an ex

parte revocation of his probation. While in prison in Colorado, Mr. Roe wrote to

the San Diego District Attorney requesting a final disposition of his California

case. In response, the district attorney’s office sent a letter to Colorado prison

officials explaining that Mr. Roe had two alternatives. He could either (i) request

sentencing in absentia pursuant to California Penal Code § 1203.2a, 1 in which

case the district attorney would recommend that the California sentence run

concurrently with the remainder of the Colorado sentence, or (ii) he could be

returned to California after the completion of the Colorado commitment. The

letter included the forms necessary for Mr. Roe to elect the in absentia

proceedings. Mr. Roe refused to sign the forms because he did not know how

much prison time he would get as a result.




      1
          Now codified as California Penal Code § 1203.2b.

                                          2
      Unsatisfied, Mr. Roe sent a second letter to the San Diego District Attorney

stating that he wanted an official plea offer, as well as a letter to the San Diego

Superior Court in which he offered to plead guilty to the probation violation in

exchange for a prison term that would run concurrently with his Colorado

commitment. In response to these letters, the district attorney’s office sent a

letter to Mr. Roe which explained:

             By requesting Sentencing in Absentia, you will be serving the
             time concurrently with that which you are now serving in
             Colorado. In most cases, the term is deemed to have begun
             when you entered the prison on your current sentence.

             Alternately, if you still wish to not sign the forms, the detainer
             will stay in place and you will be returned to California upon
             completion of your Colorado commitment.

R. vol. 1, ex. 10.

      Upon receipt of this second letter, Mr. Roe signed the requisite forms

authorizing the California court to sentence him in absentia. The form, captioned

“Request for Disposition of Probation, Waiver of Appearance and Right to

Attorney,” reads in relevant part:

             This is to notify you, in accordance with the provisions of
             section 1203.2a of the California Penal Code, on my present
             imprisonment and to request this Court to make disposition of
             my said Probation as required by law.

             This is to further notify you that I waive any and all rights that
             I may have to be present at any hearings in this matter, and I
             further waive any and all rights that I may have to be
             represented by an attorney at any and all stages of these

                                           3
                 proceedings.

Id. at ex. 12.

       On September 8, 1987, Mr. Roe, in absentia, received a sentence of three

years, to run concurrently with the Colorado term. Mr. Roe obtained the benefit

of having seven months of his California term overlap with the Colorado

sentence. After concluding his time in Colorado, Mr. Roe was transferred to

California to complete his sentence. He was paroled eleven months later.

       In his filings before the district court, Mr. Roe argued his California prison

term was the product of an uncounseled waiver and is therefore subject to

collateral attack during the sentencing proceeding. According to Mr. Roe,

disregarding this prison term would implicate several Guidelines provisions.

First, pursuant to U.S.S.G. § 2K2.1, his base offense level would drop from 20 to

14. Secondly, he would be eligible for an 8-level reduction in the base offense

level under the “sporting use exception” outlined in § 2K2.1(b)(2). Lastly, his

criminal history would shift from Category VI to Category V. Overall, Mr. Roe

claims that the effect of excluding the California prior sentence would be to lower

his sentence from a range of 51-63 months to a range of 4-10 months. 2

       After a hearing on the merits, the district court found the California


       2
        While we do not necessarily endorse Mr. Roe’s interpretation of the
Guidelines, the government does not challenge his reading. Accordingly, for
purposes of this decision, we assume Mr. Roe’s calculation to be correct.

                                           4
conviction constitutionally valid and sentenced Mr. Roe to 63 months in prison.

He now appeals this sentence.

                                      Analysis

      In United States v. Garcia, 42 F.3d 573 (10th Cir. 1994), we defined the

circumstances under which defendants can collaterally attack prior convictions for

purposes of reducing their criminal history scores under the Guidelines. The

same standards are used to determine whether to count prior convictions under §

2K2.1a(1)-a(4)(a) (offense level) and under § 4A1.1 (criminal history). See

U.S.S.G. § 2K2.1 cmt. n.15; United States v. Hines, 133 F.3d 1360, 1362 n.3

(1998). Our analysis under Garcia regarding criminal history is therefore equally

applicable to calculation of the base offense level.

      Garcia held that the Guidelines’ default rule is that a sentencing court is

prohibited from reconsidering the validity of prior convictions. The conviction,

however, is subject to collateral review if (i) the defendant identifies a particular

statute, rule, or regulation independent of the Guidelines authorizing collateral

review, or (ii) the district court is constitutionally mandated to review the

conviction. 42 F.3d at 580. Because Mr. Roe has not identified any rule or statute

authorizing collateral review, we turn to constitutional principles.

      In determining the scope of a sentencing court’s constitutional obligations,

Garcia relied heavily on the Supreme Court’s holding in Custis v. United States,


                                          5
511 U.S. 485 (1994), which discussed a similar issue under the Armed Career

Criminal Act, 18 U.S.C. § 924(e). As a general matter, Custis held that the

Constitution did not require a sentencing court to consider collateral attacks on

prior convictions. However, after examining the principles delineated in Gideon

v. Wainwright, 372 U.S. 335 (1963), and its progeny, the Supreme Court

recognized an exception for cases where the prior conviction was obtained in

denial of counsel. Custis, 511 U.S. at 493-97. In applying Custis to cases

decided under the Guidelines, Garcia stated: “we hold that with the exception of a

collateral attack based on the complete denial of counsel, a district court

sentencing a defendant under the career offender provisions of the Guidelines

cannot consider a collateral attack on a prior conviction.” Garcia, 42 F.3d at 581.

      Courts have construed “denial of counsel” narrowly. In Custis, the

Supreme Court held that ineffective assistance claims did not amount to denial of

counsel. Custis, 511 U.S. at 496. Similarly, in Garcia we rejected the contention

that the defendant was denied counsel because he was not given his own lawyer

but rather was represented by the same attorney as his co-defendant brother.

Garcia, 42 F.3d at 573, 581. In United States v. Simpson, 94 F.3d 1373, 1381

(10th Cir. 1996), we further held that a claim that counsel entered a guilty plea

without consent of the defendant did not amount to a “complete denial of




                                          6
counsel” and could not form the basis of a collateral attack at the sentencing

phase.

         Although Mr. Roe arguably had a constitutional right to counsel at the

California sentencing hearing, see Gagnon v. Scarpelli, 411 U.S. 778, 781 (1973)

(finding that Mempa v. Rhay, 389 U.S. 128 (1967), held that defendant had a right

to counsel at the sentencing hearings following the revocation of probation),

under the facts of this case we find that Mr. Roe was not subjected to “complete

denial of counsel” within the meaning of Garcia. Had Mr. Roe not opted for the

in absentia proceeding, after completing his Colorado term, he would have been

sent to California for sentencing– at which point counsel would have presumably

been available to him. Mr. Roe waived his rights to this process because he

recognized the advantage of having his Colorado and California prison terms run

concurrently. To secure this benefit, Mr. Roe, on his own initiative, contacted the

California district attorney to request what amounted to sentencing in absentia.

Mr. Roe obtained the benefit of this arrangement: reduction of his overall term of

incarceration by seven months.

         Further, Custis and Garcia carved out limited exceptions to the general rule

prohibiting collateral attacks for instances where the conviction was obtained in

denial of counsel. See Custis 511 U.S. at 488; Garcia, 42 F.3d at 578. In this

case, however, Mr. Roe’s conviction in California was secured with counsel, and


                                           7
resulted in four year’s probation. The only issue to be determined by the hearing

was the sentence for the probation violation. Mr. Roe seeks to equate his lack of

counsel in deciding to waive rights to appear (with counsel) at the sentencing

hearing to “complete denial” of counsel in proceedings probing whether a party is

guilty of the underlying conduct. In light of our holdings in Garcia and Simpson,

this analogy will not prevail.

      In closing, we note that within the context of his sentencing for the present

offence, Mr. Roe’s decision sixteen years ago to be sentenced in absentia and

proceed without counsel is of minimal significance. Mr. Roe does not contest

that the conduct underlying his Colorado conviction violated the terms of his

California probation. In fact, it was the California court’s revocation of Mr.

Roe’s probation which prompted him to contact the California district attorney.

Had he not waived his rights through the in absentia process, Mr. Roe would in

all likelihood have been returned to California after the completion of his

Colorado term to face probation revocation proceedings. Relying on the letter to

Mr. Roe from the San Diego District Attorney, the district court made specific

note of the prosecutor’s “good-faith intent” to seek Mr. Roe’s return to California

at the completion of his Colorado commitment. Upon return to California, Mr.

Roe would have been subject to a two-, three- or four-year prison term for




                                          8
violation of probation. 3 Even if Mr. Roe would have opted for the California

sentencing hearing, given California’s determinate sentence regime for probation

violations, the shortest possible sentence would have been two years. A two-year

sentence is enough to trigger the longer sentence in this case. Accordingly, the

calculation of his sentence under Guidelines §§ 2K2.1 and 4A1.2 would have

resulted in the same sentencing range as imposed by the district court.

      For the foregoing reasons we AFFIRM the decision of the district court.

                                             Entered for the Court



                                             Michael W. McConnell
                                             Circuit Judge




      3
          While Mr. Roe was serving his Colorado term, the San Diego District
Attorney wrote to the Colorado warden evaluating Mr. Roe’s status in California
as follows:
              The State of California has a determinant sentence law which
              allows for three possible sentences in certain cases. For the
              Offense with which Mr. Roe is charged, Violation of Probation
              following conviction of Assault with a Deadly Weapon (Penal
              Code section 245(a)(1)), the options are two, three and four
              years. In the absence of aggravating circumstances, the court
              will ordinarily select the middle sentence (three years).
 R. vol. 1, ex. 18.

                                         9
