United States v. Shelvin ( 2000 )


Menu:
  •                              No. 99-20910
    -1-
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 99-20910
    Summary Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    VINCENT JOSEPH SHELVIN,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. H-98-CR-120-1
    --------------------
    June 29, 2000
    Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
    PER CURIAM:*
    Vincent Joseph Shelvin appeals his sentence for possession
    with intent to distribute crack cocaine.      He argues that the
    district court had discretion to consider his collateral
    challenge under to a state conviction used to calculate his
    criminal history under U.S.S.G. § 4A1.2 and United States v.
    Canales, 
    960 F.2d 1111
    , 1115 (5th Cir. 1992).      Canales has been
    superseded by the 1993 amendments to the commentary of      § 4A1.2
    and by the Supreme Court’s ruling in Custis v. United States, 
    511 U.S. 485
    , 487 (1994).     See United States v. Toliver, No. 94-40978
    *
    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    that this opinion should not be published and is not precedent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. 99-20910
    -2-
    (5th Cir. Mar. 17, 1995).**    Under the new language of the
    commentary, Shelvin may collaterally attack his prior conviction
    only if that right is otherwise recognized in law.    § 4A1.2,
    comment. (n.6).    Shelvin has failed to provide any authority for
    a collateral attack on his sentence.
    Moreover, even if the district court did have discretion
    under Canales to consider the collateral attack, the court chose
    not to exercise its discretion in Shelvin’s case.    The court
    refused to rule on the validity of a state conviction under state
    law until after the state courts had had an opportunity to
    address the issue.    Shelvin cannot show an abuse of discretion in
    that decision.    Shelvin’s sentence is AFFIRMED.
    **
    Unpublished opinions issued before January 1, 1996, have
    precedential value. 5TH CIR. R. 47.5.3.
    

Document Info

Docket Number: 99-20910

Filed Date: 7/7/2000

Precedential Status: Non-Precedential

Modified Date: 4/18/2021