United States v. David Lee Frank

Eighth Circuit

United States v. David Lee Frank

932 F.2d 700, 1991 U.S. App. LEXIS 7558, 1991 WL 66605

CourtCourt of Appeals for the Eighth Circuit

DecidedApril 29, 1991

Docket90-5535

StatusPublished

Cited by15 cases

This text of 932 F.2d 700 (United States v. David Lee Frank) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. David Lee Frank, 932 F.2d 700, 1991 U.S. App. LEXIS 7558, 1991 WL 66605 (8th Cir. 1991).

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Opinion

MAGILL, Circuit Judge.

David Lee Frank appeals the district court’s 1 imposition of a twenty-one-month sentence after his guilty plea to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He argues through counsel that the district court erred in increasing his criminal history category for a diversionary disposition on a state charge, and pro se that his guilty plea was involuntary as a result of his counsel’s ineffective assistance. We affirm.

In 1984, Frank pleaded guilty to possession of marijuana in violation of Minnesota law. The state court stayed the adjudication and placed Frank on probation under Minn.Stat.Ann. § 152.18 (West 1989). In the instant case, this state probation sentence was included in the calculation of Frank’s criminal history category. U.S. S.G. § 4A1.2(f) states that a diversionary disposition “resulting from a finding or admission of guilt” in a judicial proceeding is counted as a sentence under Guidelines § 4Al.l(c), even if a conviction is not formally entered. Frank’s guilty plea to the state charge was an admission of guilt, and thus the state probation sentence was properly counted as a prior sentence under Guidelines § 4A1.2(f). See United States v. Giraldo-Lara, 919 F.2d 19, 22-23 (5th Cir.1990).

Frank’s argument that the inclusion of the probationary sentence in his criminal history category violated the tenth amendment is without merit. Minnesota law provides that a nonpublic record of the proceedings will be maintained “for the purpose of use by the courts in determining the merits of subsequent proceedings against such person.” Minn.Stat.Ann. § 152.18(1) (West 1989). As the government points out, this latter language has been interpreted as contemplating use of the record “should defendant have ‘future difficulties with the law.’ ” State v. Goodrich, 256 N.W.2d 506, 512 (Minn.1977).

Frank’s pro se claim of ineffective assistance of counsel is dismissed without prejudice. This claim is more properly raised in a habeas corpus proceeding. See United States v. Sanchez, 927 F.2d 376, 378-79 (8th Cir.1991) (per curiam); United States v. Murphy, 899 F.2d 714, 716 (8th Cir.1990).

Accordingly, we affirm.

1

. The Honorable David S. Doty, United States District Judge for the District of Minnesota.

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MAGILL, Circuit Judge.

David Lee Frank appeals the district court’s 1 imposition of a twenty-one-month sentence after his guilty plea to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He argues through counsel that the district court erred in increasing his criminal history category for a diversionary disposition on a state charge, and pro se that his guilty plea was involuntary as a result of his counsel’s ineffective assistance. We affirm.

In 1984, Frank pleaded guilty to possession of marijuana in violation of Minnesota law. The state court stayed the adjudication and placed Frank on probation under Minn.Stat.Ann. § 152.18 (West 1989). In the instant case, this state probation sentence was included in the calculation of Frank’s criminal history category. U.S. S.G. § 4A1.2(f) states that a diversionary disposition “resulting from a finding or admission of guilt” in a judicial proceeding is counted as a sentence under Guidelines § 4Al.l(c), even if a conviction is not formally entered. Frank’s guilty plea to the state charge was an admission of guilt, and thus the state probation sentence was properly counted as a prior sentence under Guidelines § 4A1.2(f). See United States v. Giraldo-Lara, 919 F.2d 19, 22-23 (5th Cir.1990).

Frank’s argument that the inclusion of the probationary sentence in his criminal history category violated the tenth amendment is without merit. Minnesota law provides that a nonpublic record of the proceedings will be maintained “for the purpose of use by the courts in determining the merits of subsequent proceedings against such person.” Minn.Stat.Ann. § 152.18(1) (West 1989). As the government points out, this latter language has been interpreted as contemplating use of the record “should defendant have ‘future difficulties with the law.’ ” State v. Goodrich, 256 N.W.2d 506, 512 (Minn.1977).

Frank’s pro se claim of ineffective assistance of counsel is dismissed without prejudice. This claim is more properly raised in a habeas corpus proceeding. See United States v. Sanchez, 927 F.2d 376, 378-79 (8th Cir.1991) (per curiam); United States v. Murphy, 899 F.2d 714, 716 (8th Cir.1990).

Accordingly, we affirm.

1

. The Honorable David S. Doty, United States District Judge for the District of Minnesota.

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932 F.2d 700, 1991 U.S. App. LEXIS 7558, 1991 WL 66605, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-david-lee-frank-ca8-1991.

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