                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.
                                                No. 03-4241
ZUBERI MUATA HONDO, a/k/a Kevin
Parker,
             Defendant-Appellant.
                                       
           Appeal from the United States District Court
         for the District of South Carolina, at Orangeburg.
             Cameron McGowan Currie, District Judge.
                             (CR-02-591)

                      Argued: January 20, 2004

                      Decided: April 30, 2004

   Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.



Affirmed by published opinion. Judge Widener wrote the opinion, in
which Judge Williams concurred. Judge Motz wrote a dissenting
opinion.


                            COUNSEL

ARGUED: Katherine Elaine Evatt, Assistant Federal Public
Defender, Columbia, South Carolina, for Appellant. Stacey Denise
Haynes, Assistant United States Attorney, Columbia, South Carolina,
for Appellee. ON BRIEF: J. Strom Thurmond, Jr., United States
Attorney, Columbia, South Carolina, for Appellee.
2                      UNITED STATES v. HONDO
                              OPINION

WIDENER, Circuit Judge:

   Zuberi Hondo pleaded guilty to two counts of illegally possessing
a firearm and one count of possessing cocaine with the intent to dis-
tribute. Finding that Hondo had two prior qualifying convictions, the
district court sentenced him to 170 months as a career offender under
section 4B1.1 of the United States Sentencing Guidelines. On appeal,
Hondo argues that the district court erred in counting one of his prior
convictions. We disagree and affirm.

                                   I.

   Hondo was initially indicted for two counts of being a felon in pos-
session of firearms and ammunition, in violation of 18 U.S.C.
§ 922(g)(1) and § 924(a), one count of possessing cocaine with the
intent to distribute, in violation of 21 U.S.C. § 841(a) and (b)(i)(C),
and one count of knowingly using and carrying a firearm in relation
to a drug trafficking offense, in violation of 18 U.S.C.
§ 924(c)(1)(A)(i). These charges resulted from two traffic stops: the
first, on December 14, 2001, turned up two loaded pistols and more
than three grams of cocaine; the second, on March 27, 2002, revealed
another pistol.

   In exchange for the government’s promise to drop the § 924(c)
count, Hondo pleaded guilty to the other three charges. In calculating
Hondo’s sentence under the Guidelines, the district court counted
both of Hondo’s two prior state convictions: one in 1984 for posses-
sion with the intent to distribute marijuana, and one in 1993 for crimi-
nal sexual conduct with a minor. Inclusion of these convictions
qualified Hondo as a career offender under section 4B1.1 of the
Guidelines, which increased Hondo’s criminal history category from
III to VI. See U.S.S.G. § 4B1.1(b) (2002) ("A career offender’s crimi-
nal history category in every case under this subsection shall be Cate-
gory VI."). It also increased the base offense levels for both the felon
in possession of a firearm charge and the drug charge. See U.S.S.G.
§§ 2K2.1(a)(2), 4B1.1(b)(c).
                       UNITED STATES v. HONDO                          3
   As a result, Hondo’s sentencing range was 151-188 months, and
the district court sentenced Hondo to a term of 170 months.

                                   II.

   Hondo’s sole argument on appeal is that the district court erred by
including his 1984 conviction for possession with the intent to distrib-
ute marijuana in determining whether Hondo’s criminal history war-
ranted the enhanced penalties applicable to career offenders. Section
4B1.1(a) of the Guidelines states that:

    A defendant is a career offender if (1) the defendant was at
    least eighteen years old at the time the defendant committed
    the instant offense of conviction; (2) the instant offense of
    conviction is a felony that is either a crime of violence or
    a controlled substance offense; and (3) the defendant has at
    least two prior felony convictions of either a crime of vio-
    lence or a controlled substance offense.

Hondo concedes that the first two prongs of the statutory analysis are
satisfied. He relies instead on the third prong, claiming that the dis-
trict court erred in finding that he had two prior qualifying convic-
tions. He claims that his 1984 conviction was obtained in the absence
of counsel and is therefore invalid and cannot be counted against him
for purposes of the career offender enhancements. The government
takes the position that he had waived his right to an attorney, as the
district court held.

   The general rule regarding prior convictions is clear: in analyzing
whether a defendant is a career offender, a district court must count
as a predicate conviction a prior state court offense that has not been
reversed, vacated, or invalidated. United States v. Bacon, 94 F.3d 158,
161-63 (4th Cir. 1996) (citing U.S.S.G. § 4A1.2 cmt. n.6). There is no
evidence that the 1984 conviction had been either reversed, vacated,
or invalidated. Hondo did not file a state post conviction relief peti-
tion, nor did he file a federal habeas petition. His direct appeal to the
South Carolina Supreme Court was not successful.

  The exception to the above rule with respect to collateral attack on
4                      UNITED STATES v. HONDO
a previous conviction in a federal sentencing proceeding is United
States v. Custis, 511 U.S. 485, 496 (1994): a defendant in a federal
sentencing proceeding cannot collaterally challenge a prior conviction
used to enhance his sentence on federal constitutional grounds unless
the conviction "was obtained in the absence of counsel."* Bacon, 94
F.3d at 162.

   The determination of whether the right to counsel has been waived
is a question of law that we review de novo. See United States v. Sin-
gleton, 107 F.3d 1091, 1097 n.3 (4th Cir. 1997). Importantly, how-
ever, even when an arguable Custis challenge is raised, the defendant
bears an especially difficult burden of proving that the conviction was
invalid. See United States v. Jones, 977 F.2d 105, 108-11 (4th Cir.
1992). Although Jones predates Custis, that difficult burden is men-
tioned in the concurring opinion, 977 F.2d at 111, and we adopt the
discussion mentioned in Jones, pp. 108-11, and the concurring opin-
ion of Judge Wilkinson.

   Because Hondo maintains that his 1984 conviction was obtained in
the absence of counsel, we consider the circumstances under which
it was obtained. The government claims that Hondo waived the repre-
sentation of the attorney which the State afforded him. And the dis-
trict court in this case permitted Hondo to testify at the sentencing
hearing. It weighed that testimony against the state court documents
offered by the government.

   Hondo testified that while in jail awaiting bond on the marijuana
charge, a screener for the public defender’s office contacted him and
told him he would be appointed counsel. After that, Hondo testified,
he never had any communication with the public defender’s office or
any appointed counsel. According to Hondo, he went to South Caro-
lina General Sessions Court for three straight days beginning June 15,
1984, as required by his release on bond, but his name was never cal-
led and he was not told to return at the end of the third day.

   To the contrary, the government offered documents from the record
of the 1984 state prosecution. In addition to the order of conviction

  *We have adopted the Custis reasoning "in the context of Guidelines
sentencing." Bacon, 94 F.3d at 163.
                        UNITED STATES v. HONDO                          5
after trial by jury, October 24, 1984, to which we attach a presump-
tion of validity, see Parke v. Raley, 506 U.S. 20, 29 (1942), the gov-
ernment points to the records of the state trial court. The first, dated
September 14, 1984, orders that the trial of Hondo (who at that time
went by the name Kevin Parker) not take place during the week of
September 17, due to the fact that his attorney would be away at a bar
association-sponsored seminar. This order, on the motion of the Pub-
lic Defender, lists Hondo’s attorney by name and postpones the trial
on her behalf, and clearly establishes that Hondo was represented by
counsel at that time.

   Equally as relevant to the waiver issue is the state court’s second
order dated October 23, 1984, which finds that Hondo no longer
wished representation by the same attorney named in the earlier order
of September 14, 1984. In the October 23rd order, the trial court
found that Hondo failed to keep in contact with his lawyer and the
court, even after notice of his impending trial. The order reflects the
court’s finding that Hondo failed to assist his attorney and by such
actions indicated Hondo no longer desired representation by that
attorney. The second said order was signed by the attorney who
moved for entry of the same. As a result, the second order provided
that Hondo’s trial counsel and the public defender’s office "be
relieved of the representation of the Defendant."

   At Hondo’s sentencing, November 3, 1988, in the general sessions
court, his attorney called the attention of the court to the fact that he
had been tried in absentia, but he did not raise at that hearing his pres-
ent claim that he had no attorney present at the trial in which he was
found guilty. State records also show that Hondo had been advised,
at the time he was let to bail, that if he did not appear as ordered for
trial, he would be tried in his absence. That same record also shows
that, at that time, Hondo refused to sign an acknowledgement of such
advice.

   Short of appearances by the prosecuting attorney or Hondo’s state
trial counsel, or communication from them, it is difficult to imagine
what evidence could more strongly support a finding that Hondo
waived his right to the attorney which he had at that time. The state
court made specific findings as to Hondo’s actions, and Hondo’s testi-
monial evidence was insufficient to rebut those findings. In addition,
6                      UNITED STATES v. HONDO
the district court made its own finding with regard to Hondo’s testi-
mony on his claimed appearance in state court. "It is not credible,"
said the district court, "that he sat in court for three days without
speaking to anyone from the public defender’s office." Taken
together, the state court record and the district court’s credibility
determination leave no doubt in our opinion that Hondo was afforded
the right to counsel and that the same was waived.

   Because Hondo did not demonstrate that his prior state court con-
viction was obtained in the absence of counsel, his Custis challenge
fails. The district court thus correctly included the conviction in its
sentencing analysis.

    The judgment of the district court is accordingly

                                                           AFFIRMED.

DIANA GRIBBON MOTZ, Circuit Judge, dissenting:

   In this case, we must resolve a single question: should a state con-
viction for possession with intent to distribute marijuana, adjudged in
absentia and without counsel, be used to enhance a defendant’s sen-
tence for federal crimes committed almost twenty years later? Resolu-
tion of this question has grave consequences for Zuberi Hondo. Only
if the uncounseled, in absentia state conviction — obtained when
Hondo was nineteen, with an eighth grade education and apparently
no prior experience with the criminal justice system — counts to
enhance his federal sentence does Hondo qualify as a career offender.
Absent the career offender status, the guideline range for Hondo’s
sentence is 57-71 months imprisonment; with the career offender
enhancement, it more than doubles to 151-188 months.

   The United States Probation Office recommended in its presen-
tence report that Hondo’s uncounseled state conviction not be counted
in determining Hondo’s federal sentence. The probation officer based
this recommendation on the fact that Hondo "was not present or rep-
resented by counsel during his trial," and that "there [was] no infor-
mation indicating that Hondo voluntarily, knowingly, and
intelligently waived his right to representation." Nevertheless, the dis-
                        UNITED STATES v. HONDO                            7
trict court counted the state conviction, reasoning that "[t]he proscrip-
tion on counting uncounseled convictions does not apply where there
has been a waiver by the defendant below," and "this case . . . has a
[state] circuit judge’s finding of waiver."

   The majority affirms. Because I believe the record evidence dem-
onstrates that the state trial judge never determined that Hondo’s
waiver was knowing and intelligent, I cannot agree that the state con-
viction should be counted to make Hondo a career offender. Accord-
ingly, I respectfully dissent.

                                     I.

   Generally, a defendant in a federal sentencing proceeding has no
constitutional right to challenge the use of a previous state conviction
to enhance a subsequent federal sentence. Custis v. United States, 511
U.S. 485, 496-97 (1994); see also United States v. Bacon, 94 F.3d
158, 163 (4th Cir. 1996) (applying Custis to the context of Guidelines
sentencing). As the majority properly recognizes, however, the case
before us falls squarely within the "sole exception" to that general
principle: the exception for prior convictions "obtained in violation of
the right to counsel," which defendants may challenge in later sen-
tencing proceedings. Custis, 511 U.S. at 487.

   Although the state trial judge never expressly found that Hondo
waived his right to counsel, the judge did implicitly find that Hondo’s
conduct amounted to a voluntary waiver of his right to counsel. The
record evidence provides an adequate basis for this conclusion.* But
voluntariness, alone, does not suffice. "[W]aivers of counsel must not
only be voluntary," but "must also constitute a knowing and intelli-
gent relinquishment or abandonment of a known right or privilege."

   *The record reveals that Hondo was informed of his right to be present
at his state trial and that the trial would proceed in his absence should he
fail to attend. The record also documents that Hondo was represented by
counsel as of September 14, 1984, but that Hondo "failed to maintain
contact with [his] lawyer" and "to keep in contact with the Court, after
due notice of a trial date by that lawyer." The state trial judge found that
this misconduct constituted an expression on Hondo’s part that he "no
longer desire[d] representation" by his counsel.
8                       UNITED STATES v. HONDO
Edwards v. Arizona, 451 U.S. 477, 482 (1981). The Supreme Court
has described a waiver as intelligent when the defendant "knows what
he is doing and his choice is made with eyes open." Adams v. United
States ex rel. McCann, 317 U.S. 269, 279 (1942).

   The Court has not "prescribed any formula or script to be read to
a defendant who states that he elects to proceed without counsel."
Iowa v. Edgardo Tovar, ___ U.S. ___, No. 02-1541, 2004 WL
413286, at *7 (Mar. 8, 2004). Rather, "[t]he determination of whether
there has been an intelligent waiver of the right to counsel must
depend, in each case, upon the particular facts and circumstances sur-
rounding that case, including the background, experience, and con-
duct of the accused." Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
Other case-specific factors include "the complex or easily grasped
nature of the charge, and the stage of the proceeding." Edgardo
Tovar, 2004 WL 413286, at *7.

   When the stage of the proceeding is, as here, the trial, the Court has
said that "before a defendant may be allowed to proceed pro se, he
must be warned specifically of the hazards ahead." Id. In Faretta v.
California, 422 U.S. 806 (1975), the Court explained that a defendant
"should be made aware of the dangers and disadvantages of [proceed-
ing pro se], so that the record will establish that he knows what he
is doing." Id. at 835 (internal quotation marks and citation omitted).
Recognizing the "enormous importance and role that an attorney
plays at a criminal trial," the Court has "imposed the most rigorous
restrictions on the information that must be conveyed to a defendant,
and the procedures that must be observed, before permitting him to
waive his right to counsel at trial." Patterson v. Illinois, 487 U.S. 285,
298 (1988); see also id. at 299 n.13 (noting that "at trial, counsel is
required to help even the most gifted layman adhere to the rules of
procedure and evidence, comprehend the subtleties of voir dire,
examine and cross-examine witnesses effectively (including the
accused), object to improper prosecution questions, and much more").

                                   II.

   Turning to the case at hand, I recognize that the burden is on
Hondo to demonstrate that he was not made aware of the dangers and
disadvantages of proceeding pro se. United States v. Jones, 977 F.2d
                       UNITED STATES v. HONDO                         9
105, 109 (4th Cir. 1992). I believe that he has met that burden and
proved by a clear preponderance of the evidence that the state trial
judge never took any steps to make him "aware of the[se] dangers and
disadvantages." Faretta, 422 U.S. at 835.

   First, the record — although otherwise relatively informative —
contains no evidence indicating that the state trial judge, or any one
else, warned Hondo about the perils of proceeding pro se. Rather, the
record simply shows that the state judge determined that Hondo
"failed to assist Counsel and by [his] actions has indicated that [he]
no longer desires representation by Petitioning Counsel."

   Moreover, the very finding of the state court that Hondo failed to
appear before or "keep in contact with" the court, indicates that the
trial judge never had any exchanges with Hondo, or even any first-
hand observations of him. Thus, the judge had no opportunity to
ensure that Hondo was making an informed choice to proceed pro se
"with eyes open." See, e.g., State v. Thompson, 584 S.E.2d 131, 136
(S.C. Ct. App. 2003) (recognizing that asking the defendant if he
understood the consequences of proceeding pro se was "‘quite obvi-
ously impossible’ when a defendant fails to appear in court") (quoting
Pennsylvania v. Ford, 715 A.2d 1141, 1143 (Pa. Super. Ct. 1998)).

   Moreover, the record lacks any indication that the state trial judge
undertook to assess "from the record as a whole" whether Hondo
understood the hazards of proceeding pro se. United States v. Gallop,
838 F.2d 105, 110 (4th Cir. 1988). Indeed, had the state court
attempted to make such a determination, the information before the
court — regarding, for instance, Hondo’s age, educational back-
ground, and experience with the judicial process — all counseled
against finding that Hondo understood these hazards. See Johnson,
304 U.S. at 464 (citing "background" and "experience" as relevant
factors); Gallop, 838 F.2d at 110 (listing among the factors to con-
sider "the educational background, age and general capabilities of an
accused"). Hondo was only nineteen at the time of the arrest at issue
and had flunked out of ninth grade with a 0.0 grade point average; in
addition, the arrest was apparently his first.

   Thus, Hondo has not just offered evidence that the state court failed
to record a determination of the knowingness or intelligence of his
10                     UNITED STATES v. HONDO
waiver. Cf. Gallop, 838 F.2d at 110. Rather, Hondo has also offered
evidence that the state trial judge never even "undertook to focus on
whether [Hondo] understood his right to counsel and intelligently and
knowingly relinquished it." Edwards, 451 U.S. at 484.

   The conflicts in Hondo’s testimony before the district court, on
which that court and the majority rely, undoubtedly cast doubt on the
credibility of Hondo’s claims of complete ignorance regarding the
appointment of counsel to represent him and the date of his impend-
ing trial. However, they do not in any way undermine the undisputed
facts in the record as to his youth, paltry educational background, and
total inexperience with the criminal justice system at the time of his
state arrest. These undisputed facts, paired with a record that contains
no contrary evidence bearing on the intelligence or knowingness of
Hondo’s waiver, require the conclusion that Hondo did not choose to
proceed without counsel "with eyes open."

   Because Hondo’s waiver of his right to counsel was not knowing
and intelligent, his uncounseled, in abstentia conviction cannot with-
stand constitutional scrutiny. See, e.g., United States v. Tucker, 404
U.S. 443, 449 (1972). Such a holding, of course, does not reverse or
vacate Hondo’s already-served state conviction, but it does mean that
the district court should not have counted the state conviction in com-
puting Hondo’s criminal history. See Lackawanna County Dist. Attor-
ney v. Coss, 532 U.S. 394, 404 (2001) (noting that when a defendant
"can demonstrate that his current sentence was enhanced on the basis
of a prior conviction that was obtained where there was a failure to
appoint counsel in violation of the Sixth Amendment, the current sen-
tence cannot stand").

  For these reasons, I would vacate the sentence, and remand the
case for resentencing with instructions not to assign criminal history
points for the uncounseled conviction.
