                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                         SEP 24 1999
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 vs.                                                   No. 98-3351
                                               (D.C. No. 98-CR-40012-DES)
 DEREK TYRONE HARRISON,                                  (D. Kan.)

           Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before ANDERSON, KELLY, and BRISCOE, Circuit Judges. **


       Defendant-Appellant Derek Tyrone Harrison appeals from the sentence

imposed by the district court. Mr. Harrison entered into a plea agreement with the

United States government whereby he pled guilty to seven counts of robbery, 18

U.S.C. §§ 1951, 1952. Based upon his plea, Mr. Harrison received a two-level

downward sentencing adjustment for acceptance of responsibility. The district


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
court imposed a prison sentence of 109 months on each count, to run

concurrently. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a) and we affirm.

      First, Mr. Harrison challenges the accuracy of the pre-sentence

investigation report detailing his criminal history. Specifically, Mr. Harrison

contests the inclusion of two Kansas City Municipal misdemeanor convictions

as uncounseled. The propriety of considering uncounseled misdemeanor

convictions for sentencing is well established. See Nichols v. United States, 511

U.S. 738, 739 (1994); United States v. Windle, 74 F.3d 997, 1001 (10th Cir.

1996). “Once the prosecution establishes the existence of a conviction, the

defendant must prove by a preponderance of the evidence that the conviction was

constitutionally infirm.” Windle, 74 F.3d at 1001. Mr. Harrison failed to carry

his burden and the convictions were properly counted. Mr. Harrison also claims

that his criminal history was overrepresented by two points assessed under U.S.

Sentencing Guideline §4A1.1(d) for offenses committed during parole. The

record clearly demonstrates that Mr. Harrison was on parole at the time of the

offense and the additional points were appropriate.

      Second, Mr. Harrison contends that the five level enhancement of his

criminal history based on U.S.S.G. §3D1.4 is in error. He contends that, although

the plea agreement indicated that the government would seek a five-level


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enhancement, the plea agreement did not say that the same would be granted. The

record indicates that Mr. Harrison voluntarily accepted the plea, and having done

so, he cannot now seek to change its terms.

      Finally, Mr. Harrison contends that he should have received a three point

downward adjustment, rather than two, for accepting responsibility pursuant to

U.S.S.G. §3E1.1. This determination is best done by the sentencing judge and

will not be reversed absent clear error. United States v. Ivy, 83 F.3d 1266, 1292

(10th Cir. 1996).

      Appellant’s court-appointed counsel has moved the court for permission to

withdraw pursuant to 10th Cir. R. 46.4(B)(1) and Anders v. California, 386 U.S.

738 (1967). This motion is GRANTED.

      AFFIRMED.



                                      Entered for the Court



                                      Paul J. Kelly, Jr.
                                      Circuit Judge




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