United States v. McVay

32 F. App'x 661
CourtCourt of Appeals for the Fourth Circuit
DecidedFebruary 1, 2002
Docket00-4762
StatusUnpublished

This text of 32 F. App'x 661 (United States v. McVay) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth 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. McVay, 32 F. App'x 661 (4th Cir. 2002).

Opinions

OPINION

TRAXLER, Circuit Judge.

Larry Wade McVay, II, appeals the sentence imposed by the district court following his plea of guilty to armed bank robbery. See 18 U.S.C.A. §§ 2113(a) & (d) (West 2000). McVay contends that the district court improperly sentenced him as a career offender under United States Sentencing Guideline § 4B1.1 (1998), because one of the two prior state court predicate convictions qualifying him for treatment as a career offender was imposed in violation of his right to court-appointed counsel. We affirm.

I.

McVay was charged with conspiracy to commit armed bank robbery, see 18 U.S.C.A. § 371 (West 2000), and armed bank robbery, see 18 U.S.C.A. § 2113(a) & (d). He subsequently pleaded guilty to the § 2113(a) & (d) count pursuant to a written plea agreement. Because McVay had two prior felony convictions, McVay’s presentence report provided that he should be sentenced as a career offender under U.S.S.G. § 4B1.1.1 The two convictions, both of which occurred in Lexington County, South Carolina, were for second degree burglary in July 1994, and for common law robbery in February 1996.

McVay objected to being sentenced as a career offender by challenging the 1996 state conviction for common law robbery. Specifically, McVay claimed that the conviction had been obtained in violation of his Sixth Amendment right to court-appointed counsel because he had requested and was [663]*663denied court-appointed counsel prior to his entering a plea of guilty to the charge.2 The district court adjourned the sentencing hearing to allow briefing and the submission of additional evidence in support of the challenge, but ultimately overruled McVay’s objection to the career offender designation. McVay was then sentenced to 188 months of imprisonment followed by five years of supervised release, and ordered to pay restitution.

II.

A.

As a general rule, a district court must count a prior state court offense that has not been reversed, vacated or invalidated as a predicate conviction for purposes of the § 4B1.1 career offender enhancement, assuming it otherwise qualifies under that section. See United, States v. Bacon, 94 F.3d 158, 161-62 (4th Cir.1996). Thus, McVay’s common law robbery conviction “counts as a predicate offense under § 4B1.1 unless federal or constitutional law provides an avenue for ... collateral attack.” Id. at 162. In Custis v. United States, 511 U.S. 485, 496, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994), however, the Supreme Court severely restricted that avenue. Specifically, the Court held that a defendant in a federal sentencing proceeding has no right to collaterally challenge a prior state court conviction used to enhance his sentence, even on federal constitutional grounds, with the single exception of cases in which the defendant can establish that the prior state conviction was obtained in violation of the Sixth Amendment right to court-appointed counsel as established by the Court in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). See Custis, 511 U.S. at 487, 496.

In Gideon, the Supreme Court held that the Sixth Amendment, as applied to the states via the Fourteenth Amendment, requires states to provide counsel for defendants financially unable to employ counsel, unless the right is competently and intelligently waived. See Gideon, 372 U.S. at 344-45. Because this failure to appoint counsel for an indigent defendant is considered a jurisdictional defect which voids the state conviction, see Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), the Custis Court made it clear that this constitutional challenge alone falls within an exception to the general rule prohibiting such collateral attacks upon state convictions used as predicates for sentence enhancement. Custis, 511 U.S. at 496.

Two primary considerations compelled the Supreme Court’s refusal in Custis to allow collateral challenges beyond those based upon a state’s imposition of a conviction in violation of an indigent defendant’s right to court-appointed counsel:

ease of administration and the interest in promoting the finality of judgments. With respect to the former, [the Court] noted that resolving non-Gideon-type constitutional attacks on prior convictions “would require sentencing courts to rummage through frequently nonexistent or difficult to obtain state-court transcripts or records.” 511 U.S. at 496. With respect to the latter, [it] observed that allowing collateral attacks would “inevitably delay and impair the orderly administration of justice” and “deprive the state-court judgment of its normal force and effect.”

[664]*664Daniels v. United States, 532 U.S. 374, 121 S.Ct. 1578, 1581, 149 L.Ed.2d 590 (2001).

Accordingly, in a federal sentencing proceeding, once the government establishes the fact of prior conviction, the burden rests upon the defendant to show that the conviction sought to be used as a predicate conviction under § 4B1.1 is subject to a collateral challenge under the Gideon exception to Custis. See United States v. Jones, 977 F.2d 105, 109 (4th Cir.1992); see also Parke v. Raley, 506 U.S. 20, 31, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992) (“[Ejven when a collateral attack on a final conviction rests on constitutional grounds, the presumption of regularity that attaches to final judgments makes it appropriate to assign a proof burden to the defendant.”).

B.

In this case, McVay asserts that his 1996 state court conviction for common law robbery was obtained in violation of his right as an indigent defendant to court-appointed counsel under Gideon. Therefore, we agree that it falls within the exception to the rule announced in Custis and can be considered on the merits. However, we disagree with McVay’s assertion that he has satisfied his burden of proving that the state’s denial of court-appointed counsel to him, based upon his financial condition at the time, was a constitutionally infirm act.

Consistent with the Sixth Amendment, South Carolina law provides that:

[a]ny person entitled to counsel under the Constitution ... shall be so advised and if it is determined that the person is financially unable to retain counsel then counsel shall be provided upon order of the appropriate judge unless such person voluntarily and intelligently waives his right thereto.

S.C.Code Ann. § 17-3-10 (Law. Co-op. 1985) (emphasis added). To implement this protection, the Supreme Court of South Carolina has adopted Supreme Court Rule 602 to guide the defense of indigents.

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Related

Johnson v. Zerbst
304 U.S. 458 (Supreme Court, 1938)
Gideon v. Wainwright
372 U.S. 335 (Supreme Court, 1963)
Parke v. Raley
506 U.S. 20 (Supreme Court, 1993)
United States v. Robert William Jones
977 F.2d 105 (Fourth Circuit, 1992)
William C. Kelly, III v. United States
29 F.3d 1107 (Seventh Circuit, 1994)
United States v. Gary W. Hoggard
61 F.3d 540 (Seventh Circuit, 1995)
United States v. Brian Bacon, A/K/A Brian Hillard
94 F.3d 158 (Fourth Circuit, 1996)
Custis v. United States
511 U.S. 485 (Supreme Court, 1994)
Daniels v. United States
532 U.S. 374 (Supreme Court, 2001)
Gideon v. Wainwright
372 U.S. 335 (Supreme Court, 1963)

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Bluebook (online)
32 F. App'x 661, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mcvay-ca4-2002.