United States v. Manuel Guerrero , 460 F. App'x 424 ( 2012 )


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  •      Case: 10-10914     Document: 00511759194         Page: 1     Date Filed: 02/15/2012
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    February 15, 2012
    No. 10-10914
    Summary Calendar                        Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    MANUEL GUERRERO,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 4:10-CR-67-1
    Before WIENER, STEWART, and HAYNES, Circuit Judges.
    PER CURIAM:*
    Defendant-Appellant Manuel Guerrero, federal prisoner # 29093-177,
    appeals the 235-month prison sentence imposed after his guilty plea conviction
    for conspiracy to possess 100 kilograms or more of marijuana with intent to
    distribute. He claims that the district court erred in applying the career offender
    enhancement because one of his Texas state convictions on which the district
    court relied was obtained in violation of his Sixth Amendment right to counsel.
    Although a defendant generally may not collaterally attack a prior state
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 10-10914    Document: 00511759194      Page: 2   Date Filed: 02/15/2012
    No. 10-10914
    conviction that is used to enhance his federal sentence, Texas state law allows
    such an attack when the defendant alleges that the conviction was “void” or
    “tainted by a constitutional defect.” United States v. Rubio, 
    629 F.3d 490
    , 493
    (5th Cir. 2010).
    We review the district court’s application of the Sentencing Guidelines de
    novo and its findings of fact for clear error. United States v. Rodriguez, 
    602 F.3d 346
    , 362 (5th Cir. 2010). We also review de novo claims that the district court
    incorrectly applied constitutional standards. See United States v. Hughes, 
    602 F.3d 669
    , 672 (5th Cir. 2010).
    Guerrero asserts that his 2001 Texas guilty-plea conviction for possession
    of methamphetamine with intent to deliver, for which he received a deferred
    disposition of 10 years community supervision, cannot be used for purposes of
    the career offender enhancement because it was obtained in violation of his
    Sixth Amendment rights; specifically, that he was not represented by counsel
    and did not waive his right to counsel during the subsequent in absentia
    probation revocation proceedings that he requested.         He asserts that the
    corrected judgment setting aside the deferred adjudication order and imposing
    a five-year sentence was not entitled to a presumption of regularity or
    truthfulness regarding whether he waived his right to counsel. He also contends
    that the deferred adjudication order cannot be used as a prior felony conviction
    because, pursuant to the Full Faith and Credit Act, 
    28 U.S.C. § 1738
    , the
    provision in the corrected judgment setting aside the deferred adjudication order
    must be given full effect even though the corrected judgment is invalid for
    purposes of the career offender enhancement.
    Section 4A1.2(f) of the United States Sentencing Guidelines states that “[a]
    diversionary disposition resulting from a finding or admission of guilt . . . in a
    judicial proceeding is counted as a sentence under § 4A1.1(c) even if a conviction
    is not formally entered.” Guerrero concedes that he was represented by counsel
    when he entered his guilty plea, and he does not claim that his constitutional
    2
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    No. 10-10914
    rights were violated during the guilty-plea hearing. Accordingly, the deferred
    adjudication order could not have been tainted by a Sixth Amendment
    constitutional violation.
    The commentary to the Guidelines makes clear that “[s]ection 4A1.2(f)
    requires counting prior adult diversionary dispositions if they involved a judicial
    determination of guilt or an admission of guilt in open court,” thus, reflecting a
    “policy that defendants who receive the benefit of a rehabilitative sentence and
    continue to commit crimes should not be treated with further leniency.” § 4A1.2,
    comment. (n.9). Furthermore, even when a conviction has been set aside or a
    defendant has been pardoned “for reasons unrelated to innocence or errors of
    law,” the sentence is still counted. § 4A1.2, comment. (n.10). Guerrero presents
    no evidence that the deferred adjudication order was set aside because of his
    innocence or some error of law. Consequently, the deferred adjudication still
    counts towards his status as a career offender. See United States v. Daniels, 
    588 F.3d 835
    , 837-38 (5th Cir. 2009).
    We have not yet addressed whether, under circumstances like those of the
    instant case, revoking a defendant’s probation in absentia amounts to a Sixth
    Amendment denial of counsel. We need not decide this question today, however,
    because — even if the corrected judgment adjudicating his guilt was without force
    and effect because of a violation of Guerrero’s Sixth Amendment rights –– its
    setting aside of the deferred adjudication order would also be null and void.
    Therefore, the deferred adjudication order would still be in effect and could serve
    as a proper predicate to establishing Guerrero’s career offender status. See
    § 4A1.2(f); § 4A1.2, comment. (n.10).
    Contrary to Guerrero’s assertions otherwise, the Full Faith and Credit Act
    is not implicated in this case, as explained in United States v. Fazande, 
    487 F.3d 307
    , 308-09 (5th Cir. 2007). There, we concluded that the principles embodied in
    the full faith and credit statute are not applicable when “a federal court
    endeavors to determine how a particular state criminal proceeding is to be
    3
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    No. 10-10914
    treated, as a matter of federal law, for the purpose of sentencing the defendant
    for a distinct and unrelated federal crime.”
    The judgment of the district court is, in all respects, AFFIRMED.
    4
    

Document Info

Docket Number: 10-10914

Citation Numbers: 460 F. App'x 424

Judges: Wiener, Stewart, Haynes

Filed Date: 2/15/2012

Precedential Status: Non-Precedential

Modified Date: 10/19/2024