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

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 be 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.” ^* Bacon, 94 F.3d at 162.

The determination of whether the right to counsel has been waived is a question of law that we review de novo. See United States v. Singleton, 107 F.3d 1091, 1097 n. 3 (4th Cir.1997). Importantly, however, even when an arguable Custis challenge is raised, the defendant bears an especially difficult burden of proving that the conviction was invalid. See United States v. Jones, 977 F.2d 105, 108-11 (4th Cir.1992). Although Jones predates Custis, that difficult burden is mentioned in the concurring opinion, 977 F.2d at 111, and we adopt the discussion mentioned in Jones, pp. 108-11, and the concurring opinion of Judge Wilkinson.

Because Hondo maintains that his 1984 conviction was obtained in the absence of counsel, we consider the circumstances under which it was obtained. The government claims that Hondo waived the representation of the attorney which the State afforded him. And the district court in this case permitted Hondo to testify at the sentencing hearing. It weighed that testimony against the state court documents offered by the government.

Hondo testified that while in jail awaiting bond on the marijuana charge, a screener for the public defender’s office contacted him and told him he would be appointed counsel. After that, Hondo testified, he never had any communication with the public defender’s office or any appointed counsel. According to Hondo, he went to South Carolina General Sessions Court for three straight days beginning June 15, 1984, as required by his release on bond, but his name was never called and he was not told to return at the end of the third day.

To the contrary, the government offered documents from the record of the 1984 state prosecution. In addition to the order of conviction after trial by jury, October 24, 1984, to which we attach a presumption of validity, see Parke v. Raley, 506 U.S. 20, 29, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992), the government points to the records of the state trial court. The first, dated September 14, 1984, orders that the trial of Hondo (who at that time went by the name Kevin Parker) not take place during the week of September 17, due to the fact that his attorney would be away at a bar association-sponsored seminar. This order, on the motion of the Public Defender, lists Hondo’s attorney by name and postpones the trial on her behalf, and clearly establishes that Hondo was represented by counsel at that time.

Equally as relevant to the waiver issue is the state court’s second order dated October 23, 1984, which finds that Hondo no longer wished representation by the same attorney named in the earlier order of September 14, 1984. In the October 23rd order, the trial court found that Hon-do failed to keep in contact with his lawyer and the court, even after notice of his impending trial. The order reflects the court’s finding that Hondo failed to assist his attorney and by such actions indicated Hondo no longer desired representation by that attorney. The second said order was signed by the attorney who moved for entry of the same. As a result, the second order provided that Hondo’s trial counsel and the public defender’s office “be relieved of the representation of the Defendant.”

At Hondo’s sentencing, November 3, 1988, in the general sessions court, his attorney called the attention of the court to the fact that he had been tried in absentia, but he did not raise at that hearing his present claim that he had no attorney present at the trial in which he was found guilty. State records also show that Hondo had been advised, at the time he was let to bail, that if he did not appear as ordered for trial, he would be tried in his absence. That same record also shows that, at that time, Hondo refused to sign an acknowledgement of such advice.

Short of appearances by the prosecuting attorney or Hondo’s state trial counsel, or communication from them, it is difficult to imagine what evidence could more strongly support a finding that Hondo waived his right to the attorney which he had at that time. The state court made specific findings as to Hondo’s actions, and Hondo’s testimonial evidence was insufficient to rebut those findings. In addition, the district court made its own finding with regard to Hondo’s testimony on his claimed appearance in state court. “It is not credible,” said the district court, “that he sat in court for three days without speaking to anyone from the public defender’s office.” Taken together, the state court record and the district court’s credibility determination leave no doubt in our opinion that Hondo was afforded the right to counsel and that the same was waived.

Because Hondo did not demonstrate that his prior state court conviction was obtained in the absence of counsel, his Custis challenge fails. The district court thus correctly included the conviction in its sentencing analysis.

The judgment of the district court is accordingly

AFFIRMED.

* We have adopted the Custis reasoning "in the context of Guidelines sentencing.” Bacon, 94 F.3d at 163.