PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                                                  No. 95-5653

BRIAN BACON, a/k/a Brian Hillard,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CR-95-28)

Argued: June 7, 1996

Decided: August 30, 1996

Before WILKINS, WILLIAMS, and MOTZ, Circuit Judges.

_________________________________________________________________

Vacated and remanded by published opinion. Judge Williams wrote
the opinion, in which Judge Wilkins and Judge Motz joined.

_________________________________________________________________

COUNSEL

ARGUED: Anthony Paul Giorno, Assistant United States Attorney,
Roanoke, Virginia, for Appellant. Patrick Campbell Buchanan, Jr.,
ERIC ROLAND SPENCER, P.C., Roanoke, Virginia, for Appellee.
ON BRIEF: Robert P. Crouch, Jr., United States Attorney, Roanoke,
Virginia, for Appellant.

_________________________________________________________________
OPINION

WILLIAMS, Circuit Judge:

In this appeal, we decide whether a district court must count a prior
state conviction that the defendant contends is invalid in evaluating
whether he satisfies the criteria for a sentence enhancement as a
career offender under the Sentencing Guidelines. See United States
Sentencing Guidelines, Guidelines Manual,§ 4B1.1 (Nov. 1994). The
United States appeals Brian Bacon's sentence of 150 months impris-
onment for possession with intent to distribute cocaine base, see 21
U.S.C.A. § 841(a)(1) (West 1981), because the district court refused
to enhance Bacon's sentence under § 4B1.1. Relying largely on
Bacon's allegation that newly discovered evidence proved his inno-
cence of a prior state offense, the district court stated, "I just don't
think he really is a career offender" (J.A. at 47), and thereafter sen-
tenced Bacon as if he were not a career offender. Because Bacon has
not alleged that he was deprived of counsel or any other constitutional
right in connection with the prior conviction, the district court was
required to count it as a predicate offense. See Custis v. United States,
511 U.S. 485, 114 S. Ct. 1732 (1994); United States v. Byrd, 995 F.2d
536, 540 (4th Cir. 1993), cert. denied, 114 S. Ct. 2140 (1994). We
therefore vacate the sentence imposed and remand for resentencing.

I.

Bacon pleaded guilty in district court to possession with intent to
distribute cocaine base. In the Presentence Investigative Report
(PSR), the United States Probation Officer determined that Bacon
qualified for an enhanced sentence as a career offender because he
previously had been convicted of two violent felonies. See U.S.S.G.
§ 4B1.1. In 1980, Bacon was convicted of attempted robbery in the
Superior Court of New York at age seventeen, and, in 1984, he was
convicted of robbery at age twenty-two. Bacon was represented by
appointed counsel in connection with both convictions. Pursuant to
§ 4B1.1, the Probation Officer assigned Bacon an offense level of 37
and a criminal history category of VI. See U.S.S.G. § 4B1.1. After
reducing the offense level by two points to 35 for acceptance of
responsibility, see U.S.S.G. § 3E1.1(a), the Probation Officer calcu-
lated a guideline range of 292 to 365 months imprisonment.

                    2
Bacon's counsel did not object to the Probation Officer's finding
that Bacon was a career offender; instead he moved for a downward
departure from a career offender sentence under§ 4A1.3, asserting
that Criminal History Category VI overstated the seriousness of
Bacon's criminal history. At the sentencing hearing, the district court
heard the parties' arguments and Bacon's testimony regarding his
motion for a downward departure. The district court also informed the
parties that Bacon personally had written two letters to the court in
which he stated that he was innocent of the 1984 robbery and
described his efforts to have that conviction set aside on the basis of
newly discovered evidence. Discussing Bacon's letters, the court
found that "he was objecting . . . to being classified as a career
offender." (J.A. at 29.) Based on the information in those letters, the
district court questioned Bacon about the circumstances surrounding
his robbery conviction.

The district court then reviewed the PSR and initially assessed
Bacon's potential sentence as a career offender. Awarding him a
three-point reduction for acceptance of responsibility, the district
court adjusted Bacon's offense level from 37 to 34, which, combined
with a criminal history category of VI, produced a guideline range of
262 to 327 months imprisonment. The district court, however, elected
not to sentence Bacon as a career offender, explaining:

          I just don't think he really is a career offender. He wrote
          to me, he told me that he's in the process of trying to get one
          of [the robbery convictions] set aside and then the other one
          was an attempted robbery at the time that he was seventeen
          (17) and based on that I just don't believe he is a career
          offender as intended by the guidelines and by Congress.

          ....

          He's trying -- at the present time -- he wrote me he's
          trying to get a new trial based on after discovered evidence
          or to get it set aside.

(J.A. at 47.) Consequently, the district court stated in its Judgment in
a Criminal Case that it found that "the defendant[did] not meet the
guideline criteria for career offender." (J.A. at 53.) The Judgment also

                    3
indicated that the court found "no reason to depart from the sentence
called for by application of the guidelines," thereby suggesting that
the sentence imposed did not reflect the downward departure for
which Bacon moved. Id.

In sentencing Bacon without an enhancement for career offender
status, the district court calculated his base offense level at 32 because
he was responsible for 99.55 grams of cocaine base, see U.S.S.G.
§ 2D1.1(c)(4), and deducted three points for acceptance of responsi-
bility, resulting in an adjusted offense level of 29. Because of his his-
tory of prior convictions, Bacon received a criminal history category
of IV, see U.S.S.G. § 4A1.1(a), which produced a guideline range of
121 to 151 months incarceration. The district court sentenced Bacon
to 150 months, a sentence at least 112 months shorter than the mini-
mum term Bacon would have received as a career offender.

II.

The United States appeals, characterizing Bacon's sentence as an
erroneous downward departure from the Sentencing Guidelines, but
we view the sentence instead as a reflection of the district court's fail-
ure to apply the career offender guideline. The United States contends
that the district court "invalidated" Bacon's predicate offenses by
departing downward on the basis of his collateral challenge to the
1984 robbery conviction and his youth at the time of the 1980
attempted robbery conviction. (Appellant's Br. at 4.) Bacon in turn
argues that the district court justifiably departed downward from his
career offender sentence under § 4A1.3 on the basis of many factors
-- such as his education, intelligence, and potential for rehabilitation
-- in addition to Bacon's claim of innocence of a predicate offense.

For good reason, both the United States and Bacon believed the
district court granted Bacon's motion for a downward departure. (See,
e.g., Appellant's Br. at 3; Appellee's Br. at 1.) The district court did
not otherwise explain the sentence imposed, and neither party antici-
pated that the court would reject Bacon's career offender status, par-
ticularly since Bacon's counsel did not object to it. Moreover, the
parties' arguments and the testimony at sentencing focused on the
merits of a downward departure under § 4A1.3. The United States
first learned of Bacon's letters to the district court at the hearing and

                     4
thus had no notice that the court would perceive them as an objection
to career offender status. When the district court pronounced Bacon's
sentence, therefore, the parties understandably believed it had granted
Bacon's motion for a downward departure.

Having thoroughly reviewed the record, however, we conclude that
the district court did not grant the motion to depart downward.1 The
district court's docket sheet does not reflect the entry of a ruling on
Bacon's motion, and the Judgment entered states that no departure
was made. Moreover, the district court construed Bacon's letters to
the court as an objection to the Probation Officer's finding that he was
a career offender. Implicitly then, Bacon's sentence was not a depar-
ture from the Guidelines, but resulted from the district court's failure
to apply the career offender guideline, the propriety of which is the
only issue before us on appeal.

III.

We find that neither the Guidelines, nor federal law, nor constitu-
tional law, permitted Bacon to collaterally attack his predicate offense
in the sentencing proceeding below. The district court therefore erred
in disregarding one of Bacon's prior convictions and sentencing him
as a non-career offender. The United States may appeal the district
court's refusal to impose a career offender sentence as an incorrect
application of the Guidelines. See 18 U.S.C.A. § 3742(b)(2) (West
Supp. 1996). While we must give "due deference" to the district
court's application of the Guidelines to the facts of Bacon's case, 18
U.S.C.A. § 3742(e) (West Supp. 1996), those facts are uncontested
and this appeal turns on a purely legal question-- whether the district
court was authorized to disregard a prior robbery conviction that oth-
erwise counts as a predicate offense based on a defendant's claim that
he has obtained new, exculpatory evidence in connection with that
crime. Our review therefore approaches a de novo standard. See
United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989).

We observe at the outset that if the 1984 robbery conviction counts
as a predicate offense, and we conclude that it does, Bacon meets the
_________________________________________________________________
1 Of course, because this issue is not before us, we express no opinion
on whether a justified basis for departure exists.

                    5
criteria for an enhanced sentence as a career offender. Under § 4B1.1,
Bacon's Criminal History Category automatically is elevated to VI
and his offense level to 37 because: (1) he was at least eighteen years
old at the time of the offense of conviction; (2) the offense of convic-
tion is a controlled substance offense; and (3) he has two prior felony
convictions for crimes of violence.2 Therefore, Bacon's case facially
meets the criteria for a career offender sentence under the Guidelines,
and we turn now to the question of whether the district court erred in
deciding not to count the robbery as a predicate offense.

Whether a prior conviction must be counted under§ 4B1.1 is deter-
mined by reference to § 4A1.2. See U.S.S.G. § 4B1.2, comment.
(n.4). Application Note Six to § 4A1.2 provides that a sentencing
court must count a predicate conviction that has not been reversed,
vacated, or invalidated in a prior case, unless federal law or the Con-
stitution secures the defendant's right to challenge the conviction in
the current sentencing proceeding:

          Sentences resulting from convictions that (A) have been
          reversed or vacated because of errors of law or because of
          subsequently discovered evidence exonerating the defen-
          dant, or (B) have been ruled constitutionally invalid in a
          prior case are not to be counted. With respect to the current
          sentencing proceeding, this guideline and commentary do
          not confer upon the defendant any right to attack collaterally
          a prior conviction or sentence beyond any such rights other-
          wise recognized in law.

U.S.S.G. § 4A1.2, comment. (n.6.) (citation omitted).
_________________________________________________________________

2 Bacon's state robbery offenses are violent felonies. See U.S.S.G.
§ 4B1.2, comment. (n.2) (expressly defining robbery as a crime of vio-
lence and including any offense, such as attempted robbery, that "by its
nature, presented a serious potential risk of physical injury to another").
In addition, although the Guidelines generally do not count adjudications
before age eighteen as predicate convictions, see U.S.S.G. § 4A1.2, com-
ment. (n.7), Bacon's attempted robbery at age seventeen nevertheless
counts because he was tried as an adult for that offense and received a
sentence in excess of one year and one month. See U.S.S.G. § 4A1.2(d).
Finally, Bacon was incarcerated for both of the predicate offenses within
fifteen years of the instant offense. See U.S.S.G. § 4A1.2(e).

                    6
Bacon's robbery conviction has not been reversed, vacated, or
invalidated in any prior case.3 And, a federal sentencing court cannot
"approve, enforce, or vacate [a] prior conviction," but must sentence
Bacon properly for the instant offense. United States v. Mitchell, 18
F.3d 1355, 1361 (7th Cir.), cert. denied, 115 S. Ct. 640 (1994).

The 1984 robbery conviction therefore counts as a predicate
offense under § 4B1.1 unless federal or constitutional law provides an
avenue for Bacon's collateral attack.4 See U.S.S.G. § 4A1.2, com-
ment. (n.6.) Bacon, however, has not called our attention to any
authority for his challenge, and we know of none. Although 21
U.S.C.A. § 851(c) (West 1981) allows a defendant to challenge the
validity of a prior conviction used to enhance a statutory sentence for
a federal drug offense, see Custis, 114 S. Ct. at 1736-37 (examining
21 U.S.C.A. § 851(c)), that section does not extend to enhancements
under the Guidelines. See United States v. Foster, 68 F.3d 86, 89 (4th
Cir. 1995) (joining other circuits in holding that the requirement
under § 851(a) that the Government file an information reciting the
_________________________________________________________________
3 Indeed, Bacon's failure to seek post-conviction relief in the state
courts or in a federal habeas court since his robbery conviction in 1984
"bespeak[s] a recognized lack of basis for doing so, thus raising in ques-
tion the basis now claimed for making the attempt in an even more atten-
uated collateral setting." United States v. Jones, 977 F.2d 105, 109 (4th
Cir. 1992), cert. denied, 507 U.S. 939 (1993).

Of course, if Bacon succeeds in a future collateral proceeding in over-
turning his robbery conviction, federal law enables him then to seek
review of any federal sentence that was enhanced due to his state convic-
tion. See Custis, 114 S. Ct. at 1739; see 28 U.S.C.A. § 2255 (West 1994);
United States v. Nichols, 30 F.3d 35 (5th Cir. 1994) (holding that a peti-
tioner who obtained a vacatur of a state conviction underlying a federal
career offender enhancement stated a claim for relief under 28 U.S.C.A.
§ 2255) (per curiam).
4 The meaning of the term "collateral attack" in the sentencing context
differs from its meaning in the context of a habeas corpus action, because
a defendant before a federal sentencing court "is not asking [the] federal
court to vacate his prior state conviction, but merely, when determining
his sentence, to disregard the fact that he has a prior conviction." See
Mitchell, 18 F.3d at 1358 n.1. For purposes of sentencing, the defendant
"attacks" a prior conviction in the sense that he asks the district court to
disregard it as a potential predicate offense.

                    7
prior convictions before entry of a guilty plea does not apply to
Guidelines enhancements). Moreover, the federal statute implemented
by the career offender guideline lacks any indication that Congress
intended to permit this sort of challenge to the counting of a predicate
offense. See 28 U.S.C. § 994(h) (West 1993 & Supp. 1996) (directing
the Sentencing Commission to "assure that the guidelines specify a
sentence [for career offenders] to a term of imprisonment at or near
the maximum term authorized" by federal law). By omitting authority
for collateral attacks from § 994(h), Congress suggested that it did not
intend to give that right to career offenders under the Guidelines. Cf.
Custis, 114 S. Ct. at 1736 (noting that "when Congress intended to
authorize collateral attacks on prior convictions at the time of sentenc-
ing, it knew how to do so" with express statutory language).

Furthermore, in his letters and testimony, Bacon did not allege that
the 1984 robbery conviction suffered from any constitutional infir-
mity; he merely asked the district court to disregard the robbery
offense because he had discovered new evidence in connection with
that conviction. We can perceive no constitutional basis for this
objection, particularly because Bacon was represented by appointed
counsel during his trial for the 1984 offense. In Custis, the Supreme
Court held that a defendant may not collaterally attack a prior convic-
tion underlying a statutory sentence enhancement unless the prior
conviction was obtained in the absence of counsel. See Custis, 114 S.
Ct. at 1731-32. Because Bacon was represented by counsel, there is
no constitutional basis for the district court to consider his newly dis-
covered evidence in connection with the robbery conviction.

Moreover, there are compelling reasons not to entertain Bacon's
collateral attack. Although it arises under the Sentencing Guidelines,
Bacon's case is analogous to Custis, in which the Supreme Court out-
lined significant jurisprudential and practical reasons for precluding
a federal defendant subject to an enhanced sentence under the Armed
Career Offender Act (ACCA), 18 U.S.C. § 924(e), from using "the
federal sentencing forum to gain review of his state convictions."
Custis, 114 S. Ct. at 1739. The Court concluded that "Congress did
not prescribe and the Constitution does not require such delay and
protraction of the federal sentencing process." Id. Such review would
burden the district courts with the task of "rummag[ing] through fre-
quently nonexistent or difficult to obtain state court transcripts or

                     8
records that may date from another era, and may come from any one
of the 50 states." Id. at 1738-39. The Court also acknowledged the
"interest in promoting the finality of judgments," which applies "with
at least equal force" in the sentencing context as it does in a habeas
corpus action. Id. at 1739.

Custis therefore prohibited a defendant from attacking a predicate
offense underlying a statutorily mandated sentence enhancement, and,
like many of our sister circuits, we find its reasoning equally compel-
ling in the context of Guidelines sentencing.5 As in statutory sentenc-
ing cases, unrestricted challenges to predicate offenses in Guidelines
cases would "place a substantial burden both on the prosecutors who
[would] be forced to defend the predicate convictions used in sen-
tence enhancement, and on the district judges who[would] be forced
to hear those challenges." Custis, 988 F.2d 1355, 1361 (4th Cir.
1993), aff'd, 511 U.S. 540 (1994); see also United States v. Burke, 67
F.3d 1, 3 (1st Cir. 1995) (surveying practical barriers including the
complexity of the records and delay in obtaining them, potential for
error in the absence of parties to prior case, and the finality doctrine).
Many of these very pitfalls appear in Bacon's case. During the course
of sentencing in district court for a federal narcotics offense, Bacon
professed his innocence of a robbery that occurred in New York more
than a decade earlier. He testified at the hearing about details concern-
ing a state witness in the robbery trial who supposedly perjured her-
self. If the United States had been on notice that the district court
_________________________________________________________________
5 At least eight other courts of appeals have extended Custis to Guide-
lines cases. See, respectively, United States v. Cordero, 42 F.3d 697, 701
(1st Cir. 1994); United States v. Jones, 27 F.3d 50, 52 (2d Cir.) (per
curiam), cert. denied, 115 S. Ct. 377 (1994); United States v. Thomas, 42
F.3d 823, 824 (3d Cir. 1994); United States v. Bonds, 48 F.3d 184, 186-
87 (6th Cir. 1995); United States v. Arango-Montoya, 61 F.3d 1331,
1336 (7th Cir. 1995); United States v. Killion , 30 F.3d 844, 846 (7th Cir.
1994), cert. denied, 115 S. Ct. 954 (1995); United States v. Jones, 28
F.3d 69, 70 (8th Cir. 1994) (per curiam); United States v. Burrows, 36
F.3d 875, 885 (9th Cir. 1994); United States v. Garcia, 42 F.3d 573, 581
(10th Cir. 1994); see also United States v. Burke, 67 F.3d 1, 3 (1st Cir.
1995) (holding that a defendant has no right to challenge the legality of
a predicate federal offense under § 5G1.3(a), which requires the district
court to impose a sentence consecutive to a prior federal sentence).

                    9
intended to entertain this objection to Bacon's career offender status,
how would it have substantiated the robbery conviction? Would it
have called the state witness, produced the state prosecutor, or intro-
duced documentary evidence related to the state conviction? Obvi-
ously, with the noted exceptions, a federal sentencing court is an
improper forum for airing a defendant's grievances concerning a prior
conviction, whether in the context of statutory or Guidelines sentenc-
ing. See United States v. Bonds, 48 F.3d 184, 187 (6th Cir. 1995).

Finally, we previously have ruled that the Sentencing Guidelines
do not independently authorize a collateral attack on a predicate
offense. See United States v. Byrd, 995 F.2d 536, 540 (4th Cir. 1993),
cert. denied, 114 S. Ct. 2140 (1994). In Byrd, the defendant argued
that the 1991 Guidelines Manual authorized a federal court to con-
sider his claim that one of the predicate offenses used to establish his
career offender status under § 4B1.1 was the product of an involun-
tary guilty plea. Id. We concluded that Application Note Six to
§ 4A1.2 provided "no independent authority for a district court to
refuse to count a prior conviction that has not previously been ruled
constitutionally invalid." Id. at 539. 6 The Sentencing Commission has
since deleted the troublesome background commentary upon which
Byrd rested his case, and the Guidelines now clearly do not authorize
challenges to predicate offenses, with the exception of those based on
previous adjudications, federal law, or a prior denial of legal represen-
tation as explained in Custis. See U.S.S.G. § 4A1.2, comment. (n.6.)
(Nov. 1994).
_________________________________________________________________
6 We reached this conclusion under the 1991 version of the Guidelines
Manual, which provided, "The Commission leaves for court determina-
tion the issue of whether a defendant may collaterally attack at sentenc-
ing a prior conviction." U.S.S.G. § 4A1.2, comment. (back'd.) (Nov.
1991). In combination with Application Note Six to§ 4A1.2 (which is
substantially the same as the first sentence of today's version and is
quoted supra in the text) these provisions contained "conflicting signals
on the propriety of entertaining constitutional challenges to predicate
convictions." Custis, 988 F.2d at n.2 (noting that U.S.S.G. § 4A1.2, com-
ment (back'd.) at that time left the issue to the courts to decide, and they
reached conflicting results); see also Byrd, 995 F.2d at 539 (noting that
courts of appeals took different approaches to this issue under the guide-
lines then in effect).

                    10
For all of these reasons, the district court should have counted
Bacon's robbery conviction, as well as his attempted robbery convic-
tion, as predicate offenses under the career offender guideline. Sen-
tencing Bacon to a 150 month term of imprisonment as a non-career
offender contravened Congress's expressed intention to see career
offenders sentenced at or near the maximum term authorized by stat-
ute, a life term in Bacon's case. See U.S.S.G. § 4B1.1, comment.
(back'd.) (noting that § 4B1.1 implements this mandate as set forth in
28 U.S.C. § 994(h)). The district court had no authority to reject
Bacon's career offender status. Under § 4B1.1, a career offender who
is subject to a statutory maximum term of life imprisonment "shall"
have offense level 37 (which can be adjusted for acceptance of
responsibility) and criminal history category VI. After an adjustment
for acceptance of responsibility, the district court was correct in its
initial calculation of Bacon's offense level of 34, which produced a
guideline range of 262 to 327 months imprisonment.

IV.

Because the district court improperly failed to sentence Bacon
within the appropriate sentencing range, we vacate the sentence
imposed and remand for resentencing. See 18 U.S.C.A. § 3742(f)(1).

VACATED AND REMANDED

                    11
