                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0335n.06

                                        Case No. 18-4145

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                      FILED
                                                                                 Jul 03, 2019
UNITED STATES OF AMERICA,                            )                      DEBORAH S. HUNT, Clerk
                                                     )
       Plaintiff-Appellee,                           )
                                                     )      ON APPEAL FROM THE UNITED
v.                                                   )      STATES DISTRICT COURT FOR
                                                     )      THE NORTHERN DISTRICT OF
ELIJAH HARDER,                                       )      OHIO
                                                     )
       Defendant-Appellant.                          )
                                                     )


       BEFORE: GUY, THAPAR, and NALBANDIAN, Circuit Judges.

       PER CURIAM. Elijah Harder pled guilty to illegally possessing a firearm. See 18 U.S.C.

§ 922(g)(9). The district court sentenced Harder to a within-Guidelines sentence of 32 months,

using a criminal history score that included two of his prior misdemeanor convictions. Harder

appeals, contending that he did not have counsel for those prior convictions, and thus the district

court should not have considered them. In reviewing a criminal history score calculation, we

review the district court’s legal conclusions de novo and its factual findings for clear

error. See United States v. Taylor, 648 F.3d 417, 431 (6th Cir. 2011).

       Under the Guidelines, a district court calculates a criminal history score using a defendant’s

prior convictions, including certain misdemeanors. U.S. Sentencing Guidelines Manual § 4A1.2

(U.S. Sentencing Comm’n 2018). But if the defendant shows that a prior misdemeanor conviction
Case No. 18-4145, United States v. Harder


was “obtained when counsel ha[d] not been available or provided, in violation of Gideon v.

Wainwright, 372 U.S. 335 (1963),” then that conviction cannot count towards his criminal history

score. United States v. Bonds, 48 F.3d 184, 186 (6th Cir. 1995) (citing Custis v. United States,

511 U.S. 485 (1994)); see also United States v. Kitchen, 428 F. App’x 593, 598 (6th Cir. 2011)

(stating that this rule “is narrow, and only applies to [Gideon’s] unique constitutional defect”).

The burden rests on the defendant to prove a Gideon violation occurred because not every

uncounseled conviction is unconstitutional—for example, a defendant may validly waive his right

to counsel. Burgett v. Texas, 389 U.S. 109, 261 (1967). When a defendant does not meet his

burden, a district court may usually consider that prior uncounseled misdemeanor conviction. See

Nichols v. United States, 511 U.S. 738, 748 (1994); United States v. Duckro, 466 F.3d 438, 448

(6th Cir. 2006).

       The district court did not err in considering Harder’s prior uncounseled misdemeanor

convictions. While Harder argues that his prior convictions violated Gideon, Harder failed to make

such a showing before the district court. He did not testify. In fact, he did not enter any proof in

the record on this issue at all. Cf. Kitchen, 428 F. App’x at 598. Instead, his counsel made a single

statement that Harder had been “advised of his rights” during those prior conviction proceedings

but said he had “no further information that [the convictions] were counseled.” R. 35, Pg. ID 152–

53. That is not enough. See Duckro, 466 F.3d at 448; see also United States v. Vasquez-Lopez,

104 F. App’x 464, 466 (6th Cir. 2004) (order) (denying appeal when defendant “did not

affirmatively claim at sentencing that he was not represented by counsel in the state proceeding,

he did not testify on the issue, or present proof on the issue, . . . [and] the government presented

evidence that [he] was represented by counsel”).




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Case No. 18-4145, United States v. Harder


       Harder argues that he did not have the burden to show his convictions were

unconstitutional; rather, the government had to show that they were constitutional. Citing Iowa v.

Tovar, 541 U.S. 77 (2004), he claims that state law—in this case Ohio law—determines who bears

the burden, and Ohio law puts the burden on the government. But Tovar was not a federal

sentencing case. It involved an Iowa defendant collaterally attacking an Iowa sentence for an Iowa

conviction. Id. at 85. So, naturally, the Supreme Court cited Iowa law for the relevant burden of

proof. Id. at 92. In contrast, Harder is a federal defendant in federal court receiving a federal

sentence. In these circumstances, this circuit (and others) have clearly placed the burden on the

defendant to show that the prior state conviction was obtained in violation of Gideon. United

States v. Jackson, 627 F. App’x 460, 464 (6th Cir. 2015); United States v. Hoffman, 982 F.2d 187,

191 (6th Cir. 1992); cf. United States v. Martinez-Cruz, 736 F.3d 999, 1007–08 (D.C. Cir. 2013)

(Kavanaugh, J., dissenting); United States v. Wilkinson, 926 F.2d 22, 28 (1st Cir. 1991) (Breyer,

C.J.) (“Practically speaking, it is the defendant, not the probation officer or the Government, who

will know any particular [constitutional] defect-related details about any particular prior

conviction.”), abrogated on other grounds by Bailey v. United States, 516 U.S. 137 (1995). Harder

has offered no reason why those precedents should be reconsidered today.

       We affirm.




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