United States v. Abrahams

Opinion

USCA1 Opinion

July 6, 1995

                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


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        No. 94-2132



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                  DOUGLAS ABRAHAMS,



                                Defendant, Appellant.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                        FOR THE DISTRICT OF NEW HAMPSHIRE



                   [Hon. Steven J. McAuliffe, U.S. District Judge]
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                                 ____________________



                                        Before



                                Cyr, Boudin and Lynch,

                                   Circuit Judges.
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            Roger A. Cox on brief for appellant.
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Per  Curiam.    Douglas  Abrahams  pled  guilty  to
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            conspiring to  possess cocaine with intent  to distribute and



            to distribute cocaine in violation of 21 U.S.C.   846 and was



            sentenced  to  serve  92 months  in  a  federal  prison.   He



            appealed  from  his sentence.    After  this court  appointed



            Attorney Roger  Cox as appellate  counsel, Cox filed  a brief



            under  Anders  v. California,  386  U.S. 738  (1967),  on the
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            ground  that he had  been unable to  identify any meritorious



            ground  for appeal.   Cox also filed a  motion to withdraw as



            Abrahams' counsel, notifying Abrahams of his  right to file a



            separate  brief.   Abrahams has  not filed  a brief,  and the



            deadline for doing so has now passed. 



                      We agree  that this appeal presents  no meritorious



            issues,  and so we affirm the sentence.  The record indicates



            that  Abrahams did  not  believe that  he should  receive the



            enhanced  base offense level  accorded career offenders under



            the United States Sentencing  Guidelines Manual   4B1.1 (Nov.



            1993).  Relying on Abrahams' previous convictions for robbery



            in  Maine and for assault and battery with a dangerous weapon



            in Massachusetts,  the probation officer found  that Abrahams



            was  a career offender within  the meaning of    4B1.1 and so



            enhanced Abrahams' base offense level  under that guideline.1


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            1.  The  convictions  were a  June  25,  1984 conviction  for

            robbery in Cumberland  County, Maine, and  an April 15,  1988

            conviction for  assault and battery  by means of  a dangerous

            weapon in Newburyport, Massachusetts.  



In  a  letter to  the  probation  officer, Abrahams'  counsel



            objected  to  the  use  of  those  convictions  to  establish



            Abraham's  career offender  status.   According  to  counsel,



            Massachusetts had  reneged  on  a  plea  agreement  promising



            Abrahams a concurrent sentence on the Massachusetts charge if



            he  pled guilty to both the  Maine and Massachusetts charges.



            Counsel also stated that  no mittimus had ever been  filed in



            the Massachusetts conviction.  



                      At  sentencing,  counsel  reasserted his  objection



            based  on  Massachusetts'  alleged  violation  of  its   plea



            agreement with Abrahams, although his objection may have been



            limited to  the Maine  conviction.   Citing Custis  v. United
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            States, 114  S. Ct. 1732, 1735-36, 1738-39  (1994), the court
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            overruled the objection because Abrahams had been represented



            by  counsel in  those  convictions.   In Custis,  the Supreme
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            Court  held that the Armed  Career Criminal Act,  18 U.S.C.  



            924(e),  did  not  specifically  permit  any  such collateral



            attack, and it  declined to  imply any such  right under  the



            statute.    Id.  at  1735-36.    The  Court  also  held  that
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            defendants could  attack a prior state  court conviction used



            for sentence enhancement under  the Constitution only if they



            had not been represented by counsel at all in connection with



            the prior conviction.  Id. at 1738.
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                      The  district  court  correctly found  that  Custis
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            foreclosed  any constitutionally  based collateral  attack on


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Abrahams'   prior  state   convictions  at   his  sentencing.



            According  to  the  presentence  report,  Abrahams  had  been



            represented by  counsel in  both the Maine  and Massachusetts



            convictions.     His  counsel  affirmed  that   fact  at  the



            sentencing hearing.  In  addition, the Sentencing  Guidelines



            do not independently permit  collateral attack on prior state



            convictions used  to establish  career offender  status under



            guideline    4B1.1.   Guideline    4A1.2 applies  in counting



            convictions under   4B1.1.  See USSG   4B1.2, comment. (n.4).
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            Application  note  6  of  that guideline  states  that  "this



            guideline and commentary do not confer upon the defendant any



            right  to   attack  collaterally  [in  a  current  sentencing



            proceeding] a  prior conviction  or sentence beyond  any such



            rights  otherwise  recognized  in  law[.]"    At  sentencing,



            counsel did  not  assert  that  any other  statute,  rule  or



            regulation  independent of the  Guidelines gave  Abrahams any



            such right, and, as noted, the Constitution conferred no such



            right on Abrahams here.  See United States v. Munoz, 36  F.3d
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            1229,  1337 (1st  Cir.  1994)  (the  constitutional  question



            resolved  in   Custis  is  the  same   under  the  sentencing
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            guidelines  as under  the Armed  Career Criminal  Act), cert.
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            denied, 115 S. Ct. 1164 (1995).  
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                      Accordingly, the court did not err in accepting the



            probation officer's determination that Abrahams was a  career



            offender within the meaning of   4B1.1.  See United States v.
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Garcia, 42 F.3d 573,  578-81 (10th Cir. 1994);  United States
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            v. Jones, 28 F.3d 69, 70 (8th Cir. 1994) (both concluding, on
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            the basis of application note 6 in the 1993 USSG Manual, that



            a  defendant,  who had  been  found to  be  a    4B1.1 career



            offender  had  no  right  to collaterally  attack  his  prior



            convictions where he had been represented by counsel in those



            convictions and had not  pointed to any other law  that would



            authorize such a challenge); compare United States v. Isaacs,
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            14  F.3d 106,  109-10  & n.3  (1st  Cir. 1994)  (after  1990,



            application  note  6  precluded  collateral  review  of prior



            convictions  at  sentencing),  limitation  on  other  grounds
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            recognized in United States v. Cordero, 42 F.3d 697, 701 (1st
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            Cir. 1994).  



                      We have reviewed the  transcripts of Abrahams' plea



            hearing and  sentencing hearing  carefully and have  found no



            error that would warrant this appeal.  Since Cox has complied



            with all requirements of Loc. R. 46.4(a), we hereby grant his
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            motion to withdraw as counsel and affirm Abrahams' sentence.
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                      It is so ordered.  
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