i doesn't have a single incidence of actual violence in his background yet he was sentenced to one hundred and thirty months for illegally entering the united states different state where he had no counsel and where he hadn't even been provided the date time or location of be hearing other words revocation sentence was imposed in review your respective positions and as i understand it one of the reasons behind the decision and custer's to limit the ability to attack a prior conviction is limited simply due to the absence of the right to counsel under gideon is there i don't want the court to be inquiring into a lot of things that happened below and sometimes many many years ago so of all of the things that you just said how many of those things are itself identifies the revocation hearing as occurring in absentia it also identifies that he was in custody in virginia on a different case at the same time period that the revocation hearing the right to counsel is a due process rights council as opposed to a right to counsel it stems from the th amendment but it was triggered in this case which me now from the state court documents that tell us that he had a right to coun  based on the nature of the hearing itself that individual defendant has a right to counsel and those factors are present here points you other minimum protections of due process particularly the right to be heard in the right to present evidence as being factors that outweigh the right to counsel so if those factors are present then it undermines an was back to the question as you earlier about whether the supreme court invasions that we look behind what happened in some of these proceedings beyond just the right to counsel you know i know you've been able to get some state court records we know what the just record so we know that there is some reference to these things in the probation department but how do we know for example whether he got the notice and decided that he did not want to appear and therefore made no effort to see if he could be transported to south carolina to be able to participate and well your honor a couple of games st of all i think that there was no real way for him to be getting more information because it doesn't tell him the time the day or the location of the proceedings but also your honor this burden is the government's burden it's the government's it isn't really exactly what i was asking you i was trying to illustrate the point that customs makes about why we don't extends beyond the right to counsel because all of these other things either don't appear in the record or they're difficult to find or whatever and it just seems to me so i want to give a chance to address this again it just seems to me you're making a lot of good points i'm not saying you're not making the points are not saying your client is a sympathetic ear but i'm saying this seems to illustrate what cost us about not that addressing anything other than that he was deprived the right to counsel none of this other stuff that we do know in revocation hearings we do have to look at be individual circumstances of that revocation hearing berman whether or not the right count for applies to that defendant and so while it is  and in this particular hearing which was extremely unusual and i don't anticipate that this type of scenario would find it in front of this court or met many district courts on a regular or frequent basis but in this not where easily ministration is whacking and finality is a problem both of those that run as in the context of hartnell get revenge of the right to be falls within the rules of customers because we've done problems where running through records is not guilty plea so we don't have issues of finality and we don't have the safeguards that he was we do talk about when under the due process clause when that arises it is still too high the right to be heard and has repeated over and over that the right to be heard is of little meaning without access to and in this circumstance not only was there no counsel but he had no ability to be heard resent any defense or any information in mitigation and one thing i don't understand what you're saying your honor that burglary was not the virginia if i remember correctly and i'm looking over the allegations for the basis for his revocation and this is document thirty t record there are a number of allegations here and the court found him guilty are all of the allegations that are included and i don't believe that  more shot just look from my perspective i get all this other stuff just tell me what colorable complicated claim could he have made regardless of whether there's lots of other things that he could as well you honor he could have presented a number of important pieces of information in mitigation and if in mitigation the court could have sentenced him to a term of imprisonment of less than thirteen months w ould have then that it would not have been included in range here so if he had been able to present mitigating information to the court sufficient to get a reduced revocation weston thirty months then his current sentence would not have been doubled based on there are very real implications and consequences to this individual defendant better or large because he did not say thank you may please the court my name is brian samuelson and i represent the united states i'd like to start where we left off and the th and th amendment rights to counsel are treated differently under cust 's and that rule makes sense since we know that they're treated differently because the supreme court has said that they're treated differently custis itself explicitly refused to expand the right to collaterally attack  beyond the narrow right to appointed counsel recognized in gideon and this court has held that a defendant may not collaterally attack a prior probation revocation on due process grounds even when there is no revocation hearing at all that's the carter case and and certainly the the absence of any hearing at all includes a violation of any due process rights that petitioner may have had to counsel at the revocation proceeding was not but he was represented that's right and the line is important st of all because it tells us the carder is still good law but it's also important because it shows that a defense may not mount a collateral attack on a prior conviction sentence on due process grounds even when a due process violation is substantial would be considered structural error in law and he was deprived of counsel he was convicted following a guilty plea entered which was a clear violation of of kentucky law and was certainly a substantial aberration of the process nevertheless even though that due process right was very important while on tells us it's not the proper subject for a collateral attack at a later unrelated sentencing proceeding so the rule coming out of of custis says apply by carter's that the only grounds for collateral attack on a prior conviction satins is the narrow ground of violation of the right to appointed counsel recognizing good and that rule makes sense considering the difference between the th amendment right to counsel and the th amendment right to counsel the six and a right to counsel categorically applies to critical on facts as minor as whether there were any witnesses that needed to be cross examined you can turn on facts whether the documents were particularly complex on the other side of the k l scale it might matter if the d and it has admitted the conduct underlying the revocation hearing so who is a very granular case by case inquiry and that makes all the difference based on what the supreme court has told us in custis is the reason that collateral attacks are generally not allowed a law in any collateral attacks on th amendment grounds if amendment lack of counsel grounds would threaten the finality of previous judgments by inviting courts to  scour state court records for due process the facts it would threaten to delay the orderly administration of justice as state courts are forced to rummage through documents that are might be old or missing or scarpelli tells us that it is a case by case inquiry one major factor in that inquiry is whether the conduct underlying the parole revocation is disputed here the p s r tells us that he was revoked because he had sustained a separate conviction in virginia there is that conviction has not been attacked there's no dispute that that conviction occurred that it was valid and that is precisely the he had a right to counsel and so informally the state of carolina has a provides for a right to counsel by rule provides a statutory right to counsel i don't think this is i don't think the documents we have  say anything other than you have a right to him so yes your honor but i don't i don't think it's clear that the due process from a to counsel it hinges my understanding of south carolina law is that there is a supreme court rule providing for said like to take them in turn the st is whether there's been a whether the due process clause provides a right to hurt and whether that matters this court has held for example in law and that even when there have been serious deprivation to process rights that affects or example the right to be present during a guilty plea that is not a proper basis for collateral attack because it sounds in the due process clause in exceeds the scope of the narrow custis exception which plays only  in carter there was a probation revocation where there was no hearing at all which certainly for close the ability to be heard at all there were certainly no no counsel there was no defender there was just now hearing and that was not a proper basis to attack conducted in absentia that p s r was before the district court and it was explicitly adopted by the district court so i think we can presume that the district court was aware of that fact at sentencing it did the district court  thoroughly took the defendant's criminal history into account when it was sensing the defending it did not place any explicit weight on the fact that he had served his sentence upon revocation of a role so i don't think this is a case where the district court was placing undue weight on a revocation sentence that later turned out to be defective so he so both because the district was aware of the facts as illustrated by the p s r and because the district explanation of the sentence didn't seem to put much of any weight on the revocation sentence i do not think there was  to personal history or characteristics and you know all that not a procedural and you know i think that's where the plain error standard applies the district court to address it because the defendant did not argue at sentencing that this conviction was defective and so that did not that that issue was not raised no the offender and while the government has the burden to establish  enhancement applies the defendant has the burden to collaterally to attack prior sentence or to show their prior sentence was constitutionally unsound and the defendant did not raise that argument below which is why it so i think the rules coming out of custis and carter show that the only ground for collateral attack is the six minute right to counsel as recognized in gideon there is no th amendment right to counsel in probation revocation hearings and so the the narrow ability to collaterally attack a prior conviction or sends during a sentencing proceeding is not a political here this court has repeatedly held that the defendant cannot some there's there's a very narrow window to attack convictions you know unrelated sentencing proceeding for good reason because we don't want courts to to open up proceedings in a hearing that's that's not designed to to mount collateral attacks occurred the actions the burden is on the defendant to show a violation of gideon right the defendant did not do that here he did not attempt to do that here and if he had he could not have done so because there is no six m it held out the right to counsel because of its central importance to ensure that fundamentally unfair judicial proceedings and that concern is the same basis or in the th amendment due process right to counsel  this case is perfect the quintessential example of why i counsel is required at least in some revocation hearings because there were no other due process protections in place that were boarded this individual but again again why why this revocation proceed if you still have yet to say to give any reason why it would be appropriate at this particular year you us that there are multiple factors that we look at and one of those which is a requirement is that there be other due process protections in place any absence of other due process protections in place  brings about the right to counsel that is also weighed against the adversary nature of the process in scarpelli they were assuming that the government was not represented by an attorney and they were assuming that it was not in front of a judge but was in front of a  a formal process here we have a adversarial process and here we have facts that are at issue including some never can mitigation and the medication came out in great detail