                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-2654
                                    ___________

United States of America,                *
                                         *
                  Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Northern District of Iowa.
James Eric Moore,                        *
                                         *
                  Appellant.             *
                                    ___________

                               Submitted: January 9, 2001

                                   Filed: April 11, 2001
                                    ___________

Before LOKEN, HEANEY and BYE, Circuit Judges.
                           ___________

HEANEY, Circuit Judge.


      James Moore pleaded guilty to distribution of cocaine base, in violation of 21
U.S.C. § 841(a)(1). At sentencing, Moore objected to the government's assessment
of criminal history points derived from prior state misdemeanor convictions.
Alternatively, Moore requested a downward departure based upon the state public
defender's misdemeanor case-file retention policy. The district court1 overruled the

      1
       The Honorable Mark W. Bennett, Chief Judge, United States District Court for
the Northern District of Iowa.
objections, declined any departure, and sentenced Moore to 70 months imprisonment.
Moore appeals both issues. We affirm.

                                 I. BACKGROUND

       On November 30, 1999, Moore entered into a non-cooperation plea agreement
with the United States and pleaded guilty to Count Two of a ten-count, federal
indictment. Count Two alleged that Moore distributed .85 grams of cocaine base in
violation of U.S.C. §841(a)(1). On February 7, 2000, the district court formally
accepted Moore's guilty plea.

      The Presentence Investigation Report (PSI) revealed, inter alia, that in July
1996, Moore was convicted and sentenced for a state offense of possession of drug
paraphernalia. Also, in August 1996, Moore was convicted and sentenced for a state
offense of theft in the fifth degree. In both misdemeanor cases above, Moore was
represented by a state public defender.

       The PSI assessed one criminal history point for each of these two convictions
pursuant to U.S.S.G. § 4A1.1(c). The PSI also assessed two additional criminal history
points, pursuant to U.S.S.G. § 4A1.1(d), because the probation period for the theft
conviction was still in effect when Moore committed the instant, federal offense.

       Moore challenged the fundamental fairness and constitutionality of incorporating
the PSI's criminal history assessments into the court's ultimate sentencing calculation
because Moore claimed that, at least as to those two particular state convictions, his
public defenders had entered his guilty pleas to the charges without his knowledge.
Moore requested his public defenders' files from the misdemeanor cases, but was
informed that the files had been destroyed pursuant to a policy of the Office of the State
Public Defender of Iowa that calls for the destruction of misdemeanor file materials one
year after the close of such cases. Neither public defender could recall his cases.

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       On June 22, 2000, a sentencing hearing was held before the district court.
Moore objected to the court's consideration of the contested criminal history points
when Moore was unable to collaterally attack the constitutionality of the disputed
convictions due to the file retention policy because doing so would contravene
fundamental fairness and deprive Moore of due process. Intertwined with the criminal
history score objection, Moore also requested a downward departure from the ultimate
sentencing determination reached by the court to offset the increased sentencing
calculation. Moore contended that, due to the destruction of potentially helpful
evidence which might have been contained in his case-file material, he was unable to
mount a meaningful collateral attack upon the disputed convictions.

       After rejecting these arguments, the court determined Moore's final, adjusted
offense level to be 23, with a criminal history category of III – resulting in a sentencing
range of 57 to 71 months. Moore was sentenced to 70 months imprisonment and three
years supervised release.

       The issues presented on appeal are: (1) whether the district court's assessment
of Moore's criminal history points violated due process; and (2) whether the district
court incorrectly applied the Sentencing Guidelines in ruling that it had no authority to
depart downward for the destruction of criminal history evidence.

                                   II. DISCUSSION

       We review the district court’s application of the sentencing guidelines de novo
and its factual findings for clear error. United States v. Webb, 218 F.3d 877, 879 (8th
Cir.2000).




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                                          A.

       The first issue is whether the district court properly included the four disputed
criminal history points in sentencing. Moore argues that it would be unconstitutional
for the court to enhance his present sentence by tacking-on criminal history points
derived from state convictions whose underlying guilty pleas might have been
submitted without Moore's consent and were not the products of a knowing, intelligent
and voluntary choice. Doing so, contends Moore, renders the PSI's criminal history
scoring inaccurate.

       A close reading of the record convinces us that the district court did not err in
finding that the criminal history points assessed in the PSI were accurate. The court
had only a smattering of inconclusive evidence before it which merely suggested a
potential line of attack upon the validity of some of the convictions assessed by the
PSI. The sentencing hearing transcript reveals that Moore himself offered no
testimony, affidavit, or other sworn statement to the district court in support of his
suspicions involving his former public defenders.

       Moore has made no assertion that he ever moved to withdraw any of the
disputed guilty pleas. Also, Moore does not claim that he made any attempt to assert
a post-conviction challenge at the state court level to the validity of the convictions
resulting from the guilty pleas at issue. Simply stated, Moore failed to overcome the
presumption of validity that accompanies the prior conviction, and failed to carry his
burden of showing his prior convictions were obtained in violation of his constitutional
rights. See Moore v. United States, 178 F.3d 994, 998 (8th Cir.1999).

      Additionally, the Guidelines indicate that “[w]hether a prior sentence counts for
criminal history purposes is a question of federal law. Under section 4A1.1, criminal

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history points are to be added for each prior sentence, but section 4A1.2(c) provides
an exception to this rule for certain misdemeanors and petty crimes.” Webb, 218 F.3d
at 879 (citations and internal quotations omitted.) Accordingly, because neither the
offense of possession of drug paraphernalia nor the offense of theft in the fifth degree
properly belongs to the category of excepted offenses listed in section 4A1.2(c), the
district court did not err in counting Moore's convictions for these offenses in
determining his criminal history score. Id. at 881.

       Moreover, and in the alternative, recent decisions of this court have made it
abundantly clear that Moore “may not collaterally attack his prior state convictions in
this sentencing proceeding, despite his claim that state and federal law preclude him
from collaterally attacking his prior convictions.” United States v. Walker, 202 F.3d
1066, 1067 (8th Cir. 2000) (citations omitted). See also United States v. Kind, 194 F.3d
900, 907 (8th Cir. 1999) (refusing to consider contention that district court erred in not
permitting collateral attack upon constitutional validity of prior state conviction.)

       In Walker, a panel of this court refused to examine an appeal based upon a claim
that one of the appellant's predicate convictions was obtained through a guilty plea that
lacked an adequate factual basis. That court recognized the distinction between
ineffective-assistance claims from denial-of-counsel claims, stating that “only the latter
are excluded from the general rule against collaterally attacking prior convictions used
for federal sentence enhancements.” Walker, 202 F.3d at 1067. On the facts of this
case, we find no compelling reason why Moore should now, at the federal level, be
allowed to attack his prior convictions when he declined to do so in state court.

                                           B.

       The second issue before us is whether the district court erred in refusing to
depart downward when sentencing Moore. On appeal, Moore contends that the district
court's denial of his departure request was due to the court's erroneous belief that it

                                           -5-
lacked the authority to do so. We note at this juncture that Moore makes no allegation
that the district court refused to depart on the basis of an unconstitutional motive or bad
faith. Moreover, there is no intimation by Moore that the lower court failed to consider
any of the factors argued before it by Moore.

      The district court may impose a sentence outside the guideline range if the
      court finds that there exists an aggravating or mitigating circumstance of
      a kind, or to a degree, not adequately taken into consideration by the
      Sentencing Commission in formulating the guidelines that should result
      in a sentence different from that described.

United States v. Field, 110 F.3d 587, 591 (8th Cir.1997) (internal quotations omitted)
(citing to U.S.S.G. § 5K2.0). “It is well-established by this court that we do not have
the authority to review the refusal to grant a downward departure, unless the district
court determined it lacked authority to consider a particular mitigating factor.” United
States v. Correa, 167 F.3d 414, 417 (8th Cir.1999) (citations omitted).

       Moore argues that the public defenders' destruction of case-file materials after
only one year was a predicament not contemplated by the Sentencing Commission and,
thus, outside of the Guidelines' 'heartland.' As such, asserts Moore, a downward
departure is permitted under the Guidelines pursuant to 18 U.S.C. § 3553(b). The
district court rejected this argument stating: “I appreciate your arguments, but it didn't
persuade me, so I'm going to deny the Defendant's objections to the criminal history
calculations and the Defendant's request for a downward departure.” (S.Tr. at 84.)

       The record makes it clear that the court considered Moore's arguments and
concluded that they did not support a downward departure. United States v. Jenkins,
78 F.3d 1283, 1290-1291 (8th Cir.1996). We are persuaded that the court was
cognizant of its authority to depart under § 5K2.0, and that its refusal to depart was
premised ultimately on its belief that the circumstances presented by the file-retention
policy resulted in no prejudice to Moore and that the facts of the case failed to disclose

                                           -6-
a basis which should result in a sentence different from that determined by the
Guidelines. The court below simply declined to exercise its discretion in Moore's
favor for the reasons laid out in the transcript.

      For the reasons stated above, the sentence is affirmed.

      A true copy.

            Attest:

               CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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