
USCA1 Opinion

	




          July 6, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2132                                    UNITED STATES,                                      Appellee,                                          v.                                  DOUGLAS ABRAHAMS,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                        FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Steven J. McAuliffe, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Cyr, Boudin and Lynch,                                   Circuit Judges.                                   ______________                                                                            ____________________            Roger A. Cox on brief for appellant.            ____________                                 ____________________                                 ____________________                      Per  Curiam.    Douglas  Abrahams  pled  guilty  to                      ___________            conspiring to  possess cocaine with intent  to distribute and            to distribute cocaine in violation of 21 U.S.C.   846 and was            sentenced  to  serve  92 months  in  a  federal  prison.   He            appealed  from  his sentence.    After  this court  appointed            Attorney Roger  Cox as appellate  counsel, Cox filed  a brief            under  Anders  v. California,  386  U.S. 738  (1967),  on the                   ______     __________            ground  that he had  been unable to  identify any meritorious            ground  for appeal.   Cox also filed a  motion to withdraw as            Abrahams' counsel, notifying Abrahams of his  right to file a            separate  brief.   Abrahams has  not filed  a brief,  and the            deadline for doing so has now passed.                       We agree  that this appeal presents  no meritorious            issues,  and so we affirm the sentence.  The record indicates            that  Abrahams did  not  believe that  he should  receive the            enhanced  base offense level  accorded career offenders under            the United States Sentencing  Guidelines Manual   4B1.1 (Nov.            1993).  Relying on Abrahams' previous convictions for robbery            in  Maine and for assault and battery with a dangerous weapon            in Massachusetts,  the probation officer found  that Abrahams            was  a career offender within  the meaning of    4B1.1 and so            enhanced Abrahams' base offense level  under that guideline.1                                            ____________________            1.  The  convictions  were a  June  25,  1984 conviction  for            robbery in Cumberland  County, Maine, and  an April 15,  1988            conviction for  assault and battery  by means of  a dangerous            weapon in Newburyport, Massachusetts.              In  a  letter to  the  probation  officer, Abrahams'  counsel            objected  to  the  use  of  those  convictions  to  establish            Abraham's  career offender  status.   According  to  counsel,            Massachusetts had  reneged  on  a  plea  agreement  promising            Abrahams a concurrent sentence on the Massachusetts charge if            he  pled guilty to both the  Maine and Massachusetts charges.            Counsel also stated that  no mittimus had ever been  filed in            the Massachusetts conviction.                        At  sentencing,  counsel  reasserted his  objection            based  on  Massachusetts'  alleged  violation  of  its   plea            agreement with Abrahams, although his objection may have been            limited to  the Maine  conviction.   Citing Custis  v. United                                                        ______     ______            States, 114  S. Ct. 1732, 1735-36, 1738-39  (1994), the court            ______            overruled the objection because Abrahams had been represented            by  counsel in  those  convictions.   In Custis,  the Supreme                                                     ______            Court  held that the Armed  Career Criminal Act,  18 U.S.C.              924(e),  did  not  specifically  permit  any  such collateral            attack, and it  declined to  imply any such  right under  the            statute.    Id.  at  1735-36.    The  Court  also  held  that                        ___            defendants could  attack a prior state  court conviction used            for sentence enhancement under  the Constitution only if they            had not been represented by counsel at all in connection with            the prior conviction.  Id. at 1738.                                   ___                      The  district  court  correctly found  that  Custis                                                                   ______            foreclosed  any constitutionally  based collateral  attack on                                         -3-            Abrahams'   prior  state   convictions  at   his  sentencing.            According  to  the  presentence  report,  Abrahams  had  been            represented by  counsel in  both the Maine  and Massachusetts            convictions.     His  counsel  affirmed  that   fact  at  the            sentencing hearing.  In  addition, the Sentencing  Guidelines            do not independently permit  collateral attack on prior state            convictions used  to establish  career offender  status under            guideline    4B1.1.   Guideline    4A1.2 applies  in counting            convictions under   4B1.1.  See USSG   4B1.2, comment. (n.4).                                        ___            Application  note  6  of  that guideline  states  that  "this            guideline and commentary do not confer upon the defendant any            right  to   attack  collaterally  [in  a  current  sentencing            proceeding] a  prior conviction  or sentence beyond  any such            rights  otherwise  recognized  in  law[.]"    At  sentencing,            counsel did  not  assert  that  any other  statute,  rule  or            regulation  independent of the  Guidelines gave  Abrahams any            such right, and, as noted, the Constitution conferred no such            right on Abrahams here.  See United States v. Munoz, 36  F.3d                                     ___ _____________    _____            1229,  1337 (1st  Cir.  1994)  (the  constitutional  question            resolved  in   Custis  is  the  same   under  the  sentencing                           ______            guidelines  as under  the Armed  Career Criminal  Act), cert.                                                                    _____            denied, 115 S. Ct. 1164 (1995).              ______                      Accordingly, the court did not err in accepting the            probation officer's determination that Abrahams was a  career            offender within the meaning of   4B1.1.  See United States v.                                                     ___ _____________                                         -4-            Garcia, 42 F.3d 573,  578-81 (10th Cir. 1994);  United States            ______                                          _____________            v. Jones, 28 F.3d 69, 70 (8th Cir. 1994) (both concluding, on               _____            the basis of application note 6 in the 1993 USSG Manual, that            a  defendant,  who had  been  found to  be  a    4B1.1 career            offender  had  no  right  to collaterally  attack  his  prior            convictions where he had been represented by counsel in those            convictions and had not  pointed to any other law  that would            authorize such a challenge); compare United States v. Isaacs,                                         _______ _____________    ______            14  F.3d 106,  109-10  & n.3  (1st  Cir. 1994)  (after  1990,            application  note  6  precluded  collateral  review  of prior            convictions  at  sentencing),  limitation  on  other  grounds                                           ______________________________            recognized in United States v. Cordero, 42 F.3d 697, 701 (1st            _____________ _____________    _______            Cir. 1994).                        We have reviewed the  transcripts of Abrahams' plea            hearing and  sentencing hearing  carefully and have  found no            error that would warrant this appeal.  Since Cox has complied            with all requirements of Loc. R. 46.4(a), we hereby grant his                                                                _____            motion to withdraw as counsel and affirm Abrahams' sentence.                                              ______                      It is so ordered.                        _________________                                         -5-
