United States v. Russell

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 13, 2001
• Docket: 00-60441
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-60441 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTHONY LEROY RUSSELL, also known as Tony Wilson, also known as Stone Russell, also known as Anthony Russell,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:99-CR-119-ALL-LS -------------------- March 9, 2001

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Anthony Leroy Russell appeals from his guilty-plea

conviction, for being a convicted felon in possession of a

firearm, and sentence, which was enhanced under the Armed Career

Criminal Act of 1984 (ACCA). See 18 U.S.C. §§ 921(g), 924(e).

Russell argues that the district court erred by enhancing

his sentence pursuant to 18 U.S.C. § 924(e) because one of the

three required prior convictions is constitutionally infirm. He

asserts that the evidence supporting his prior conviction for

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-60441 -2-

possession with the intent to distribute cocaine is sufficient to

support only a conviction for simple possession of cocaine. With

the exception of a claim concerning a conviction obtained in

violation of the Sixth Amendment right to counsel, see Gideon v.

Wainwright, 372 U.S. 335 (1963), a defendant subject to a

18 U.S.C. § 924(e) sentence cannot challenge at the federal

sentencing hearing the validity of the prior convictions upon

which the 18 U.S.C. § 924(e) sentence rests. United States v.

Custis, 511 U.S. 484, 493-96 (1994).

Russell’s reliance on United States v. Clark, 203 F.3d 358,

363 (5th Cir. 2000), petition for cert. filed, (July 21, 2000)

(No. 00-122), is misplaced. Clark was an appeal from the

dismissal of a 28 U.S.C. § 2255 motion. 203 F.3d at 362. This

court held that a defendant “who wishes to challenge a federal

sentence that has been enhanced under the ACCA by allegedly

unconstitutional prior state convictions, for which the prisoner

is no longer ‘in custody,’ may do so through a section 2255

motion.” Pack v. Yusuff, 218 F.3d 448, 454 (5th Cir. 2000)

(footnote omitted) (stating the holding of Clark). Collateral

relief from the prior Mississippi conviction is unavailable to

Russell on direct appeal from his federal conviction and

sentence. See Clark, 203 F.3d at 365-67 (interpreting Custis).

We express no opinion on the appropriate disposition if

Russell seeks relief through a 28 U.S.C. § 2255 motion.

AFFIRMED.