                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           FEB 17 2000
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.
                                                          No. 99-1444
                                                    (D.C. No. 98-CR-350-D)
 GEORGE ANDALON CHAVARRIA,
                                                     (District of Colorado)
 also known as Jorge Andalon
 Chavarria,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before BALDOCK, HENRY and LUCERO, Circuit Judges.



      We must determine whether the district court erred in assessing two

criminal history points, pursuant to United States Sentencing Guidelines

(U.S.S.G.) § 4A1.1(b), based on defendant-appellant George Andalon Chavarria’s

prior state conviction. Exercising jurisdiction pursuant to 18 U.S.C. § 3742(a),

we affirm the sentence imposed by district court.


      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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.
                                          I

      After pleading guilty to conspiring to distribute methamphetamine in

violation of 21 U.S.C. § 841 and 18 U.S.C. § 2, the district court sentenced

Chavarria to fifty-nine months imprisonment and five years supervised release.

The district court determined Chavarria’s total offense level under the Sentencing

Guidelines to be twenty-seven and his Criminal History Category to be II. 1

Chavarria received two criminal history points based on a prior Colorado state

conviction—a 1996 conviction for disorderly conduct, to which Chavarria pleaded

guilty and was sentenced to six months imprisonment with credit for time served.

Although this conviction is reflected in the records of the Rio Grande County

Clerk’s Office, a formal judgment or mittimus was never prepared because,

according to a letter from the Clerk, “the time had already been served.”

(Appellant’s Br. Ex. D at 1.) On appeal, Chavarria challenges the district court’s

imposition of two criminal history points based on his prior state conviction for

disorderly conduct, arguing the conviction is invalid because no mittimus was

entered, the state court failed to inform him of his right to appeal, and his right to

counsel was violated. 2

      1
          Based on the government’s motion pursuant to U.S.S.G. § 5K1.1, the
district court departed downward from the recommended imprisonment range of
78 to 97 months to 59 months.
      2
          Federal Rule of Appellate Procedure 4(b)(1) requires that a criminal
                                                                       (continued...)

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                                          II

      We review for clear error the district court’s factual findings regarding

sentencing and review de novo its legal interpretation of the Sentencing

Guidelines. See United States v. Henry, 164 F.3d 1304, 1310 (10th Cir.), cert.

denied, 119 S. Ct. 2381 (1999). We are mindful of our obligation to give “due

deference to the district court’s application of the guidelines to the facts.” Id.

(citing United States v. Cantley, 130 F.3d 1371, 1378 (10th Cir. 1997)).

      Section 4A1.1(b) of the Sentencing Guidelines requires the district court to

“[a]dd 2 points for each prior sentence of imprisonment of at least sixty days” not

otherwise counted under § 4A1.1(a). A “prior sentence” is defined as “any

sentence previously imposed upon adjudication of guilt, whether by guilty plea,

trial, or plea of nolo contendere, for conduct not part of the instant offense.”


      2
        (...continued)
defendant file a notice of appeal in the district court within ten days after the
entry of judgement. See Fed. R. App. P. 4(b)(1)(A)(i). The district court entered
final judgment on September 17, 1999. Chavarria filed his notice of appeal one
day late on September 28, 1999. Upon a finding of “excusable neglect or good
cause,” however, the district court may extend the time to file a notice of appeal
for no more than 30 days from the expiration of the original deadline. Fed. R.
App. P. 4(b)(4). The district court found excusable neglect because defense
counsel did not receive, and was unaware of, the entry of the final judgment until
September 28, 1999. On appeal, the government concedes timeliness. We review
for an abuse of discretion the district court’s determination of the presence or
absence of excusable neglect under Fed. R. App. P. 4, see City of Chanute v.
Williams Natural Gas Co., 31 F.3d 1041, 1045 (10th Cir. 1994), and conclude that
the district court did not abuse its discretion. Accordingly, we grant appellant’s
motion regarding appellate jurisdiction and exercise jurisdiction over this appeal.

                                         -3-
U.S.S.G. § 4A1.2(a)(1). A “sentence of imprisonment” is defined as “a sentence

of incarceration and refers to the maximum sentence imposed.” U.S.S.G.

§ 4A1.2(b)(1). The offense of disorderly conduct may be counted in calculating

criminal history if, as here, the term of imprisonment was at least thirty days. See

U.S.S.G. § 4A1.2(c)(1). The government must establish the fact of a prior

conviction by a preponderance of the evidence. See United States v. Ortiz, 63

F.3d 952, 955 (10th Cir. 1995).

      Chavarria argues his prior state conviction for disorderly conduct cannot be

included in his criminal history because the Rio Grande County Clerk’s Office did

not enter a formal judgment or mittimus. Relying on the on-line records of the

clerk’s office and a letter from the Clerk explaining why a mittimus had not been

entered, the district court concluded the government presented sufficient evidence

to establish that Chavarria served a prior sentence of approximately six months

for disorderly conduct. Prior convictions can be proven for sentencing purposes

through collateral sources such as a docket sheet. See United States v. Simpson,

94 F.3d 1373, 1381 (10th Cir. 1996) (holding that “a certified docket sheet is

adequate, absent some contradictory evidence by the defendant, to establish the

existence of a prior conviction for” purposes of calculating criminal history under

the Sentencing Guidelines); cf. United States v. Johnson, 973 F.2d 857, 861-62

(10th Cir. 1992) (holding that a prior conviction was proven for purposes of 18


                                         -4-
U.S.C. § 924(e) by a collateral source—a journal entry of a subsequent probation

revocation order referencing the prior conviction). Evidence that the clerk’s

office did not enter a mittimus merely supports a finding that the clerk’s office

failed to complete procedural paperwork, but does nothing to contradict the fact

of his prior conviction and sentence. In light of the evidence presented from the

Rio Grande County Clerk’s Office, we conclude the district court did not commit

clear error in finding that Chavarria pleaded guilty to disorderly conduct, was

sentenced to six months, and was released after sentencing due to time served.

Based on this factual finding, we hold that the district court correctly added two

points to Chavarria’s criminal history because he had a prior sentence of

imprisonment of at least sixty days. See U.S.S.G. § 4A1.1(b).

      In addition to challenging the fact of the underlying conviction, Chavarria

asserts two collateral attacks upon the prior conviction. The Sentencing

Guidelines “do not confer upon the defendant any right to attack collaterally a

prior conviction or sentence beyond any such rights otherwise recognized in law.”

U.S.S.G. § 4A1.2, comment. (n.6). “We have held 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.’” Simpson, 94 F.3d at

1381 (quoting United States v. Garcia, 42 F.3d 573, 581 (10th Cir. 1994)). In


                                         -5-
Simpson, we went on to find “no distinction, for these purposes, between the

career offender provisions contained in Guideline 4B1.1 which were applied in

Garcia, and the criminal history calculations provided by Guideline 4A1.1.” Id.

Therefore, Chavarria’s collateral claim that his prior conviction cannot be

considered at sentencing because he was not advised of his right to appeal fails.

      Although Chavarria’s second collateral attack alleging a denial of his right

to counsel is permissible, this claim also fails because he has not sustained his

burden of establishing that he was not represented by counsel. See 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.”). Rather, the docket

sheet states he was represented by public defender Bruce Allen Boreson. The

absence of a specific reference in the docket sheet to Borenson’s presence at

Chavarria’s January 16, 1996, plea hearing is insufficient to prove the attorney’s

absence.

                                         III

      Because we conclude the district court properly added two criminal history

points based on Chavarria’s prior state conviction pursuant to U.S.S.G.

§ 4A1.1(b), we AFFIRM Chavarria’s sentence.




                                         -6-
The mandate shall issue forthwith.



                                     ENTERED FOR THE COURT



                                     Carlos F. Lucero
                                     Circuit Judge




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