United States v. Zuberi Muata Hondo, A/K/A Kevin Parker

366 F.3d 363, 2004 U.S. App. LEXIS 8542, 2004 WL 914417
CourtCourt of Appeals for the Fourth Circuit
DecidedApril 30, 2004
Docket03-4241
StatusPublished
Cited by21 cases

This text of 366 F.3d 363 (United States v. Zuberi Muata Hondo, A/K/A Kevin Parker) 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. Zuberi Muata Hondo, A/K/A Kevin Parker, 366 F.3d 363, 2004 U.S. App. LEXIS 8542, 2004 WL 914417 (4th Cir. 2004).

Opinions

OPINION

WIDENER, Circuit Judge:

Zuberi Hondo pleaded guilty to two counts of illegally possessing a firearm and one count of possessing cocaine with the intent to distribute. Finding that Hondo had two prior qualifying convictions, the district court sentenced him to 170 months as a career offender under section 4B1.1 of the United States Sentencing Guidelines. On appeal, Hondo argues that the district court erred in counting one of his prior convictions. We disagree and affirm.

I.

Hondo was initially indicted for two counts of being a felon in possession of firearms and ammunition, in violation of 18 U.S.C. § 922(g)(1) and § 924(a), one count of possessing cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a) and (b)(i)(C), and one count of knowingly using and carrying a firearm in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(l)(A)(i). These charges resulted from two traffic stops: the first, on December 14, 2001, turned up two loaded pistols and more than three grams of cocaine; the second, on March 27, 2002, revealed another pistol.

In exchange for the government’s promise to drop the § 924(c) count, Hondo pleaded guilty to the other three charges. In calculating Hondo’s sentence under the Guidelines, the district court counted both of Hondo’s two prior state convictions: one in 1984 for possession with the intent to distribute marijuana, and one in 1993 for criminal sexual conduct with a minor. Inclusion of these convictions qualified Hon-do as a career offender under section 4B1.1 of the Guidelines, which increased Hondo’s criminal history category from III to VI. See U.S.S.G. § 4Bl.l(b) (2002) (“A career offender’s criminal history category in every case under this subsection shall be Category VI.”). It also increased the base offense levels for both the felon in possession of a firearm charge and the drug charge. See U.S.S.G. §§ 2K2.1(a)(2), 4Bl.l(b)(c).

As a result, Hondo’s sentencing range was 151-188 months, and the district court sentenced Hondo to a term of 170 months.

II.

Hondo’s sole argument on appeal is that the district court erred by including his 1984 conviction for possession with the intent to distribute marijuana in determining whether Hondo’s criminal history warranted the enhanced penalties applicable to career offenders. Section 4Bl.l(a) of the Guidelines states that:

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

Hondo concedes that the first two prongs of the statutory analysis are satisfied. He relies instead on the third prong, claiming that the district court erred in finding that he had two prior qualifying convictions. He claims that his 1984 conviction was obtained in the absence of counsel and is therefore invalid and cannot [365]*365be counted against him for purposes of the career offender enhancements. The government takes the position that he had waived his right to an attorney, as the district court held.

The general rule regarding prior convictions is clear: in analyzing whether a defendant is a career offender, a district court must count as a predicate conviction a prior state court offense that has not been reversed, vacated, or invalidated. United States v. Bacon, 94 F.3d 158, 161— 63 (4th Cir.1996) (citing U.S.S.G. § 4A1.2 cmt. n. 6). There is no evidence that the 1984 conviction had been either reversed, vacated, or invalidated. Hondo did not file a state post conviction relief petition, nor did he file a federal habeas petition. His direct appeal to the South Carolina Supreme Court was not successful.

The exception to the above rule with respect to collateral attack on a previous conviction in a federal sentencing proceeding is Custis v. United States, 511 U.S. 485, 496, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994): a defendant in a federal sentencing proceeding cannot collaterally challenge a prior conviction used to enhance his sentence on federal constitutional grounds unless the conviction “was obtained in the absence of counsel.”

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Bluebook (online)
366 F.3d 363, 2004 U.S. App. LEXIS 8542, 2004 WL 914417, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-zuberi-muata-hondo-aka-kevin-parker-ca4-2004.