                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-10-2000

United States v. Escobales
Precedential or Non-Precedential:

Docket 99-5997




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Recommended Citation
"United States v. Escobales" (2000). 2000 Decisions. Paper 143.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/143


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Filed July 10, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-5997

UNITED STATES OF AMERICA

v.

CESAR ESCOBALES, Appellant

On Appeal From the United States District Court
For the District of Delaware
(D.C. Crim. No. 99-cr-00006)
District Judge: Honorable Sue L. Robinson

Submitted Under Third Circuit LAR 34.1(a)
June 15, 2000

Before: BECKER, Chief Judge, ALDISERT, Circuit Judges
and O'KELLEY, District Judge.*

(Filed: July 10, 2000)

       JOSEPH A. HURLEY, ESQUIRE
       1215 King Street
       Wilmington, DE 19801

Counsel for Appellant



_________________________________________________________________
* Honorable William C. O'Kelley, United States District Judge for the
Northern District of Georgia, sitting by designation.
       CARL SCHNEE, ESQUIRE
       United States Attorney
       RICHARD G. ANDREWS, ESQUIRE
       First Assistant United States
        Attorney
       Chase Manhattan Centre
       1201 Market Street, Suite 1100
       P.O. Box 2046
       Wilmington, DE 19899-2046

       Counsel for Appellee

OPINION OF THE COURT

BECKER, Chief Judge.

The relevance of past convictions to sentences for current
crimes has been one of the most frequently litigated issues
under the regime of the federal sentencing guidelines. One
vein in this seemingly limitless mine of jurisprudence is
whether and when a federal defendant can bring a
collateral attack challenging the constitutional validity of
past convictions during his federal sentencing proceedings.
The Supreme Court and this court have rejected such
collateral attacks in Custis v. United States , 511 U.S. 485
(1994), and United States v. Thomas, 42 F.3d 823 (3d Cir.
1994), while recognizing two circumstances in which such
attacks may be brought: (1) where the statute or sentencing
guideline under which the defendant was sentenced
provides for the right to bring such a collateral attack at
sentencing; and (2) when the defendant's collateral attack,
at sentencing, is based on an allegation that his right to
counsel, as described in Gideon v. Wainwright , 372 U.S.
335 (1963), was violated during the underlying state court
proceeding.

This appeal, which arises out of a cocaine distribution
case in which the defendant pled guilty to violating 21
U.S.C. SS 841(a)(1) and 841(b)(1)C, extracts more ore from
the Custis and Thomas vein. It presents the narrow
question whether a defendant, during sentencing, can lodge
a collateral attack based on an alleged denial of his sixth-

                               2
amendment right to a jury trial, thereby challenging the
constitutionality of an underlying state-court conviction
used to calculate his United States Sentencing Guidelines
Criminal History Category under U.S.S.G. S 4A1.1. Because
neither 21 U.S.C. S 841 nor U.S.S.G. S 4A1 explicitly
provides defendants the right to make a collateral challenge
during federal sentencing proceedings, and because the
defendant's constitutional challenge is not based on an
alleged Gideon violation, we hold that the District Court
properly refused to entertain the defendant's collateral
attack. We will therefore affirm the judgment of the District
Court.

I.

On June 29, 1999, Cesar Escobales pled guilty to
distributing 112.4 grams of cocaine in violation of 21 U.S.C.
SS 841(a)(1) and 841(b)(1)C. The United States Probation
Office for the District of Delaware prepared a pre-sentence
investigation report ("the PSI"), which was revised to reflect
objections made by Escobales's counsel. The Probation
Office calculated Escobales's base offense level at 18, but
reduced the overall offense level to 15 because of
acceptance of responsibility. The Probation Office
determined that Escobales had 4 criminal history points,
pursuant to U.S.S.G. S 4A1.1-2 points based on two prior
state convictions and 2 points because he committed the
instant offense while on probation. According to the table at
Chapter 5, Part A of the U.S.S.G., a defendant with 4
criminal history points is in criminal history category III.
The sentencing range for a defendant with a criminal
history of category III and an offense level of 15 is 24 to 30
months.

Escobales objected to the PSI's inclusion of one of his
state convictions. He submitted that one of the two
convictions--a third-degree assault charge--was obtained
in violation of his constitutional right to trial by jury,
because he pled guilty to the crime without first being made
aware of his right to a jury trial by the state judge receiving
his uncounseled plea.1 Had this assault conviction not been
_________________________________________________________________

1. Because we ultimately decide that we cannot reach the merits of this
argument, we do not describe the legal precepts involved or the

                               3
included in Escobales's criminal history calculation, he
would have had 3 criminal history points, his criminal
history category would have been II, and his sentencing
range would have been 21 to 27 months.

The revised PSI accounted for Escobales's objection, and
the Probation Office recommended rejecting it in light of
this court's decision in United States v. Thomas , 42 F.3d
823 (3d Cir. 1994). Thomas held that "when sentencing a
defendant classified as a career offender under section
4B1.1" of the Sentencing Guidelines, a district court,
"cannot entertain a constitutional challenge to the
underlying convictions" unless (1) "the statute under which
the defendant is sentenced explicitly provides the right to
attack collaterally prior convictions used to enhance the
sentence;" or (2) the constitutional challenge to the
underlying conviction is based on a claim that "the
defendant's right to counsel has been denied." Id. at 824
(citing Custis v. United States, 511 U.S. 485, 491-92 (1994))
(emphasis added). The defendant's remedy in such a case is
to challenge the conviction in state court or tofile a 28
U.S.C. S 2254 petition to attack collaterally the underlying
state conviction. See Custis, 511 U.S. at 497. Should either
of these challenges prove successful, the defendant can
then "apply for reopening of any federal sentence enhanced
by the state sentence" or file a 28 U.S.C.S 2255 petition
challenging his federal sentence. Id.

At Escobales's sentencing hearing, the Government
argued that neither of Thomas's two preconditions for
collaterally attacking an underlying state conviction during
a federal sentencing hearing was present in Escobales's
case. The Government also argued that, although Escobales
was being punished pursuant to a different statute and
guideline from the defendant in Thomas, the statutes and
_________________________________________________________________

surrounding facts in detail. We do note, however, that gravamen of
Escobales's complaint is that the state family court judge who received
his plea did not inform him that if he refused to plead guilty to the
assault charge, he could appeal any conviction arising out of a bench
trial before the family court to the superior court, where he would be
entitled to a de novo trial before a jury.

                               4
guidelines in the two cases were functional equivalents.2
The Government therefore contended that, based on
Thomas, it was appropriate for the District Court to
consider the challenged conviction in sentencing Escobales,
and that Escobales's constitutional challenge was being
lodged at the wrong stage of the proceedings and in the
wrong forum.

The District Court adopted this reasoning and sentenced
Escobales to 24 months in prison. The Court also imposed
a fine and ordered that Escobales comply with certain post-
release conditions. This appeal followed. The District Court
had jurisdiction pursuant to 18 U.S.C. S 3231. This court's
jurisdiction is founded in 28 U.S.C. S 1291 and 18 U.S.C.
S 3742(a)(2).

II.

A.

Escobales makes two arguments on appeal. First, he
contends that his being denied his right to a jury trial is on
a par with being denied the right to counsel, and therefore,
that he should be able to attack collaterally his state
conviction during his federal sentencing proceedings. In
Custis, the Supreme Court rejected this type of argument:

       Custis invites us to extend the right to attack
       collaterally prior convictions used for sentence
       enhancement beyond the right to have appointed
       counsel established in Gideon [v. Wainwright, 372 U.S.
       335 (1963)]. We decline to do so. We think that [the]
       . . . failure to appoint counsel for an indigent defendant
       [is] a unique constitutional defect. Custis attacks his
       previous convictions claiming the denial of the effective
       assistance of counsel, that his guilty plea was not
_________________________________________________________________

2. Thomas involved a defendant who pled guilty to bank robbery, 18
U.S.C. S 2113(a), and whose offense level and criminal history category
were increased, pursuant to U.S.S.G. S 4B1.1, because of his career
offender status. See 42 F.3d at 823. Escobales pled guilty to distributing
cocaine and was not classified as a career offender. Rather his criminal
history category was calculated pursuant to U.S.S.G.S 4A1.

                               5
       knowing and intelligent, and that he had not been
       adequately advised of his rights in opting for a
       "stipulated facts" trial. None of these alleged
       constitutional violations rises to the level of a
       jurisdictional defect resulting from the failure to
       appoint counsel at all.

511 U.S. at 496 (emphasis added).

Thomas read Custis to mean that only Gideon violations
could be attacked collaterally during federal sentencing
proceedings. See Thomas, 42 F.3d at 824; see id. (holding
that district court sentencing Thomas could not entertain
Thomas's claim that the "state judge [in the underlying
state-court conviction] failed to inform [Thomas] of several
of his constitutional rights when [Thomas] pleaded guilty").
Thomas's reading of Custis precludes us from broadening
Custis's "Gideon exception" to right-to-jury-trial claims.

Moreover, the right-to-jury-trial claim brought here by
Escobales is analogous to the uninformed-guilty-plea
claims rejected in both Custis and Thomas. In all three
cases, the gravamen of the defendant's constitutional
challenge was that his guilty plea was not knowing and
intelligent because he was not informed of certain rights he
would be waiving by entering his plea. Because Custis and
Thomas declined to reach such claims when brought
collaterally during sentencing, so must we.

B.

Escobales's second argument is that the statute under
which he was sentenced explicitly provided him with the
right to attack collaterally, at sentencing, the
constitutionality of his underlying convictions. This
argument is unavailing, however, because in advancing it
Escobales is forced to rest his contention on a statute
under which he was neither charged nor sentenced--21
U.S.C. S 851.

Escobales was charged with   and pled guilty to violating
21 U.S.C. SS 841(a)(1) and   841(b)(1)C. Had the government
wished to pursue statutory   enhancements for prior
convictions, it could have   moved under 21 U.S.C.S 851 to

                                 6
seek such statutory enhancements to the maximum
sentence provided for under S 841(b)(1)C. It did not do so.
Instead, it relied on the criminal history category portion of
the Guidelines, U.S.S.G. S 4A1.1, to account for Escobales's
past misdeeds. Neither 21 U.S.C. S 841 nor U.S.S.G. S 4A1,
in any of its subsections or commentary, explicitly provide
the defendant with the right to attack his prior convictions
collaterally during sentencing proceedings. See 21 U.S.C.
S 841; U.S.S.G. S 4A1; Thomas, 42 F.3d at 824 & n.1
(discussing S 4A1); see also United States v. Bacon, 94 F.3d
158, 163 n.5 (4th Cir. 1996) ("At least eight other courts of
appeals have extended Custis to Guidelines cases.")
(collecting cases). Commentary to S 4A1 makes this point
clear:

         Sentences resulting from convictions that (A) have been
         reversed or vacated because of errors of law or because
         of subsequently discovered evidence exonerating the
         defendant, 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 otherwise
         recognized in law . . . .

U.S.S.G. S 4A1.2 cmt. 6 (1998) (emphasis added). Therefore,
pursuant to Custis and Thomas, Escobales did not have the
statutory right to attack his state conviction when the
District Court was sentencing him.

Escobales nonetheless argues that 21 U.S.C. S 851
explicitly provides for such a right. In fact, S 851(c) does so,
as is detailed in the margin, and as was noted in Custis,
511 U.S. at 491-92, and recent commentary to the
Guidelines, see U.S.S.G. S 4A1.2 cmt. 6 (1998) ("21 U.S.C.
S 851 expressly provides that a defendant may collaterally
attack certain prior convictions.").3 However, the right
_________________________________________________________________

3. Section 851(c) provides, in pertinent part:

         (1) If the person denies any allegation of the information of prior
         conviction, or claims that any conviction alleged is invalid, he
shall
         file a written response to the information. . . . The court shall
hold a

                                 7
provided for in S 851(c) is not implicated in this case. As we
have held elsewhere, when a defendant is not being
sentenced pursuant to a S 851 statutory enhancement--i.e.,
one that exceeds the statutory maximum embodied in the
Guideline's sentencing ranges--the defendant is not entitled
to rely on the procedural protections contained inS 851 to
challenge sentencing determinations such as his criminal
history category, or "score" (U.S.S.G. S 4A1.1); the
" `likelihood that he will commit further crimes' " (U.S.S.G.
S 4A1.3); and his "career offender status" (U.S.S.G.
S 4B1.1). United States v. Davis, 969 F.2d 39, 47-48 (3d
Cir. 1992) (holding so and collecting numerous court of
appeals cases holding similarly). For these reasons,
Escobales cannot rely on S 851 to invoke the sentencing
court's collateral review power to attack an underlying
conviction that was relied upon by the District Court in
determining Escobales's criminal history points and
criminal history category.

Therefore, the judgment of the District Court will be
affirmed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

_________________________________________________________________

       hearing to determine any issues raised by the response which would
       except the person from increased punishment. . . .

        (2) A person claiming that a conviction alleged in the information
       was obtained in violation of the Constitution of the United States
       shall set forth his claim, and the factual basis therefor, with
       particularity in his response to the information. The person shall
       have the burden of proof by a preponderance of the evidence on any
       issue of fact raised by the response. . . .

21 U.S.C. S 851(c).
                               8
