United States v. Mayo Pickens , 546 F. App'x 170 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4007
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MAYO LEVORD PICKENS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Timothy M. Cain, District Judge.
(8:07-cr-00960-TMC-1)
Submitted: October 25, 2013 Decided: November 8, 2013
Before SHEDD, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kenneth C. Gibson, Greenville, South Carolina, for Appellant.
William N. Nettles, United States Attorney, Leesa Washington,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mayo Levord Pickens appeals from the amended criminal
judgment imposed following our remand of his case to the
district court for resentencing. See United States v. Pickens,
480 F. App’x 205 (4th Cir. 2012) (unpublished). At the
resentencing hearing, Pickens raised only one argument: that
the five-year statute of limitations on a defendant’s ability to
challenge the validity of a prior conviction used to enhance a
federal sentence, see 21 U.S.C. § 851(e) (2012), should be
excused, because Pickens intended to assert that his predicate
conviction — a 1995 South Carolina conviction for possession
with intent to distribute crack cocaine — was obtained in
violation of his Sixth Amendment right to counsel. Pickens
relied on the Supreme Court’s decision in Custis v. United
States, 511 U.S. 485 (1994), for support.
The district court declined to extend Custis in the
manner advanced by Pickens and ruled that the five-year
limitations period set forth in § 851(e) barred his challenge to
the validity of the 1995 conviction. In the alternative, the
court found that Pickens failed to overcome the presumption of
regularity afforded his final, prior conviction. The court
subsequently imposed the mandatory minimum term of 240 months’
imprisonment and ten years’ supervised release.
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On appeal, Pickens asserts that the district court
erred in rejecting the Custis-based challenge to the five-year
limitations period. But given the dearth of controlling or even
persuasive authority to support his argument, we disagree. See,
e.g., United States v. Mason, 628 F.3d 123, 133 (4th Cir. 2010)
(explaining that the defendant’s challenge to use of prior
convictions based on allegations that they were uncounseled was
“likely barred by the statute of limitations in 21 U.S.C.
§ 851(e),” because those convictions “occurred more than five
years before the government submitted its § 851 information in
this case”).
We further note our agreement with the district
court’s alternative rationale. There is a presumption of
regularity afforded final criminal judgments, Parke v. Raley,
506 U.S. 20, 29 (1992), and a defendant who challenges a prior
conviction used to enhance his sentence in a later offense bears
the burden of showing that the prior conviction was invalid.
United States v. Jones, 977 F.2d 105, 109-11 (4th Cir. 1992).
To satisfy his burden, Pickens offered only his self-serving
testimony on the issue. But absent more, we cannot conclude
that the district court erred in rejecting Pickens’ claim.
For the foregoing reasons, we affirm the district
court’s amended criminal judgment. We dispense with oral
argument because the facts and legal contentions are adequately
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presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
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