                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-20-1994

United States v. Thomas
Precedential or Non-Precedential:

Docket 94-1542




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            UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                     No. 94-1542


               UNITED STATES OF AMERICA

                          v.

                    AARON THOMAS,

                                    Appellant


  On Appeal from the United States Court of Appeals
      for the Eastern District of Pennsylvania
              (D.C. Crim. No. 93-00377)


     Submitted under Third Circuit LAR 34.1(a)
                 December 19, 1994

BEFORE:   GREENBERG, SAROKIN, and WEIS, Circuit Judges

              (Filed: December 20, 1994)


                           Michael R. Stiles
                           United States Attorney
                           Walter S. Batty, Jr.
                           Assistant United States Attorney
                           Chief of Appeals
                           Suzanne B. Ercole
                           Assistant United States Attorney
                           Suite 1250
                           615 Chestnut Street
                           Philadelphia, PA 19106

                                Attorneys for Appellee

                           David L. McColgin
                           Assistant Federal Defender
                           Elaine Demasse
                           Assistant Federal Defender
                           Senior Appellate Counsel
                           Maureen Kearney Rowley
                           Chief Federal Defender
                                     Defender Association of
                      Philadelphia
                                     Federal Court Division
                                     437 Chestnut Street, Suite 800
                                     Lafayette Building
                                     Philadelphia, PA 19106

                                          Attorneys for Appellant


                        OPINION OF THE COURT


GREENBERG, Circuit Judge.


          Aaron Thomas appeals from a judgment of conviction and

sentence entered on April 26, 1994, sentencing him to a custodial

term of 169 months to be followed by a three-year term of

supervised release.   The sentence also included a provision for

restitution not implicated on this appeal.      The court imposed the

sentence on Thomas' conviction based on a plea of guilty to bank

robbery in violation of 18 U.S.C. § 2113(a).      Through the

application of the career offender section of the Sentencing

Guidelines, his guideline range was established as 151 to 188

months predicated on a total offense level of 29.      See U.S.

Sentencing Guidelines § 4B1.1 (1993).      Without the career

offender designation, his total offense level would have been 22.

          Thomas' career offender status was calculated on the

basis of two convictions, a 1987 burglary conviction in

Philadelphia and a 1992 robbery conviction in Bucks County,

Pennsylvania, both convictions having been based on pleas of

guilty.   As he did in the district court, Thomas challenges the

use of his 1992 conviction for robbery to fix his status as a

career offender.   He predicates this argument on the contentions
that he believed in 1992 that he was pleading guilty only to

theft and that the state judge failed to inform him of several of

his constitutional rights when he pleaded guilty.    The district

court found that the state convictions were valid.

          We reject Thomas' argument.    In Custis v. United

States, 114 S.Ct. 1732 (1994), the Supreme Court held that except

when a conviction is obtained in violation of a defendant's right

to counsel, a defendant has no constitutional or statutory

grounds to attack collaterally the validity of previous state

convictions cited to enhance his sentence under the Armed Career

Criminal Act.   18 U.S.C. § 924(e).   We previously had held in

United States v. Brown, 991 F.2d 1162 (3d Cir. 1993), that the

Sentencing Guidelines grant discretion to district courts to

entertain constitutional challenges at sentencing to prior

convictions used to establish criminal histories.    But we reached

this conclusion on the authority of a background note to U.S.

Sentencing Guideline § 4A1.2 which we construed to mean "that the

courts should work out their own procedural rules regarding

efforts by defendants to challenge convictions not previously

held unconstitutional."   Brown, 991 F.2d at 1166.   Thus, we did

not conclude in Brown that either the Guidelines or the

Constitution itself compelled us to permit constitutional

challenges to prior convictions used to establish criminal

histories under the guidelines.1

1
 . The background note on which we relied in United States v.
Brown recited that the Sentencing "Commission leaves for court
determination the issue of whether a defendant may collaterally
attack at sentencing a prior conviction." This note was deleted
          Custis, of course, has altered the situation with

respect to challenges to prior convictions.   Furthermore, we see

no principled way to distinguish a challenge to a prior

conviction used to justify an enhancement under the guidelines

from a prior conviction used to justify an enhancement under the

Armed Career Criminal Act.   Custis teaches that unless the

statute under which the defendant is sentenced explicitly

provides the right to attack collaterally prior convictions used

to enhance the sentence, no such right should be implied.

Custis, 114 S.Ct. at 1736 (contrasting the Armed Career Criminal

Act with other statutes "expressly permit[ting] repeat offenders

to challenge prior convictions that are used for enhancement

purposes").   In Brown itself we acknowledged that U.S. Sentencing

Guideline § 4A1.2 provides no such right explicitly, but only

authorizes courts to work out their own procedural rules.     Brown,

991 F.2d at 1166.   In the absence of such explicit authorization,

Guideline 4A1.2 stands in the same posture as the Armed Career

Criminal Act addressed in Custis.

          Consequently, we will follow the lead of the Supreme

Court by holding that a district court, when sentencing a

(..continued)
effective November 1, 1993, when the Commission amended
application note 6 to section 4A1.2 to provide that "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 rights
otherwise recognized in law (e.g., 21 U.S.C. § 851 expressly
provides that a defendant may collaterally attack certain prior
convictions)." We, however, are treating this case as though the
deleted note was still in the commentary and thus rely on Custis
and not the amendment to the commentary to reach our result.
defendant classified as a career offender under section 4B1.1,

cannot entertain a constitutional challenge to the underlying

convictions except in a case in which the defendant's right to

counsel had been denied.    In reaching this result, we join the

other courts of appeal which have declined to distinguish section

4B1.1 from the Armed Career Criminal Act for the purpose of

considering challenges to prior convictions.    United States v.

Garcia,      F.3d      ,   , No. 94-5028 (10th Cir. 1994); United

States v. Killion, 30 F.3d 844, 846 (7th Cir. 1994); United

States v. Jones, 28 F.3d 69, 70 (8th Cir. 1994); United States v.

Jones, 27 F.3d 50, 51-52 (2d Cir.), cert. denied, 115 S.Ct. 377

(1994).    See also United States v. Munoz, 36 F.3d 1229, 1237-38

(1st Cir. 1994); United States v. Ullyses-Salazar, 28 F.3d 932,

939 (9th Cir. 1994).

            In addition to distinguishing section 4B1.1 from the

Armed Career Criminal Act, Thomas seeks to avoid Custis on two

other bases.    First, he contends that inasmuch as the government

did not urge in the district court that he could not challenge

the 1992 conviction, it cannot make that contention now.      We

reject this contention because the Supreme Court decided Custis
after the court sentenced Thomas, and the government was not

obliged to make an argument in the district court barred by

Brown.    We also observe that the government raises Custis to

affirm rather than to reverse the judgment from which the appeal

was taken.    We think that whatever might be true in other

situations, in this unusual case in which the Supreme Court

effectively changed the law after the completion of the district
court proceedings, the government should be permitted to rely on

the new ruling to uphold the district court's judgment.

          Second, Thomas contends that Custis does not preclude a

challenge to a prior conviction itself in a state or federal

habeas corpus proceeding nor, in his view, does it preclude a

federal habeas corpus attack to an enhanced sentenced predicated

on an invalid prior conviction.   See Nichols v. United States,

114 S.Ct. 1921, 1937 (1994) (Ginsburg, J., dissenting); Custis,

114 S.Ct. at 1746 (Souter, J., dissenting).   We, however, have no

reason to address those possibilities.   The only issue before us

is whether at the time of the sentencing the district court may

entertain constitutional challenges to underlying convictions

used to enhance sentences.   We conclude that, except in cases in

which a conviction was obtained in violation of a defendant's

right to counsel, we should follow Custis and hold that such

challenges are precluded in cases under section 4B1.1.

          The judgment of conviction and sentence of April 26,

1994, will be affirmed.
