PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. No. 95-5653

BRIAN BACON, a/k/a Brian Hillard,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Virginia, at Roanoke.

James C. Turk, District Judge.

(CR-95-28)

Argued: June 7, 1996

Decided: August 30, 1996

Before WILKINS, WILLIAMS, and MOTZ, Circuit Judges.

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Vacated and remanded by published opinion. Judge Williams wrote

the opinion, in which Judge Wilkins and Judge Motz joined.

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COUNSEL

ARGUED: Anthony Paul Giorno, Assistant United States Attorney,

Roanoke, Virginia, for Appellant. Patrick Campbell Buchanan, Jr.,

ERIC ROLAND SPENCER, P.C., Roanoke, Virginia, for Appellee.

ON BRIEF: Robert P. Crouch, Jr., United States Attorney, Roanoke,

Virginia, for Appellant.

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OPINION

WILLIAMS, Circuit Judge:

In this appeal, we decide whether a district court must count a prior

state conviction that the defendant contends is invalid in evaluating

whether he satisfies the criteria for a sentence enhancement as a

career offender under the Sentencing Guidelines. See United States

Sentencing Guidelines, Guidelines Manual,§ 4B1.1 (Nov. 1994). The

United States appeals Brian Bacon's sentence of 150 months imprisonment for possession with intent to distribute cocaine base, see 21

U.S.C.A. § 841(a)(1) (West 1981), because the district court refused

to enhance Bacon's sentence under § 4B1.1. Relying largely on

Bacon's allegation that newly discovered evidence proved his innocence of a prior state offense, the district court stated, "I just don't

think he really is a career offender" (J.A. at 47), and thereafter sentenced Bacon as if he were not a career offender. Because Bacon has

not alleged that he was deprived of counsel or any other constitutional

right in connection with the prior conviction, the district court was

required to count it as a predicate offense. See Custis v. United States,

511 U.S. 485, 114 S. Ct. 1732 (1994); United States v. Byrd, 995 F.2d

536, 540 (4th Cir. 1993), cert. denied, 114 S. Ct. 2140 (1994). We

therefore vacate the sentence imposed and remand for resentencing.

I.

Bacon pleaded guilty in district court to possession with intent to

distribute cocaine base. In the Presentence Investigative Report

(PSR), the United States Probation Officer determined that Bacon

qualified for an enhanced sentence as a career offender because he

previously had been convicted of two violent felonies. See U.S.S.G.

§ 4B1.1. In 1980, Bacon was convicted of attempted robbery in the

Superior Court of New York at age seventeen, and, in 1984, he was

convicted of robbery at age twenty-two. Bacon was represented by

appointed counsel in connection with both convictions. Pursuant to

§ 4B1.1, the Probation Officer assigned Bacon an offense level of 37

and a criminal history category of VI. See U.S.S.G. § 4B1.1. After

reducing the offense level by two points to 35 for acceptance of

responsibility, see U.S.S.G. § 3E1.1(a), the Probation Officer calculated a guideline range of 292 to 365 months imprisonment.

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Bacon's counsel did not object to the Probation Officer's finding

that Bacon was a career offender; instead he moved for a downward

departure from a career offender sentence under§ 4A1.3, asserting

that Criminal History Category VI overstated the seriousness of

Bacon's criminal history. At the sentencing hearing, the district court

heard the parties' arguments and Bacon's testimony regarding his

motion for a downward departure. The district court also informed the

parties that Bacon personally had written two letters to the court in

which he stated that he was innocent of the 1984 robbery and

described his efforts to have that conviction set aside on the basis of

newly discovered evidence. Discussing Bacon's letters, the court

found that "he was objecting . . . to being classified as a career

offender." (J.A. at 29.) Based on the information in those letters, the

district court questioned Bacon about the circumstances surrounding

his robbery conviction.

The district court then reviewed the PSR and initially assessed

Bacon's potential sentence as a career offender. Awarding him a

three-point reduction for acceptance of responsibility, the district

court adjusted Bacon's offense level from 37 to 34, which, combined

with a criminal history category of VI, produced a guideline range of

262 to 327 months imprisonment. The district court, however, elected

not to sentence Bacon as a career offender, explaining:

I just don't think he really is a career offender. He wrote

to me, he told me that he's in the process of trying to get one

of [the robbery convictions] set aside and then the other one

was an attempted robbery at the time that he was seventeen

(17) and based on that I just don't believe he is a career

offender as intended by the guidelines and by Congress.

. . . .

He's trying -- at the present time -- he wrote me he's

trying to get a new trial based on after discovered evidence

or to get it set aside.

(J.A. at 47.) Consequently, the district court stated in its Judgment in

a Criminal Case that it found that "the defendant[did] not meet the

guideline criteria for career offender." (J.A. at 53.) The Judgment also

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indicated that the court found "no reason to depart from the sentence

called for by application of the guidelines," thereby suggesting that

the sentence imposed did not reflect the downward departure for

which Bacon moved. Id.

In sentencing Bacon without an enhancement for career offender

status, the district court calculated his base offense level at 32 because

he was responsible for 99.55 grams of cocaine base, see U.S.S.G.

§ 2D1.1(c)(4), and deducted three points for acceptance of responsibility, resulting in an adjusted offense level of 29. Because of his history of prior convictions, Bacon received a criminal history category

of IV, see U.S.S.G. § 4A1.1(a), which produced a guideline range of

121 to 151 months incarceration. The district court sentenced Bacon

to 150 months, a sentence at least 112 months shorter than the minimum term Bacon would have received as a career offender.

II.

The United States appeals, characterizing Bacon's sentence as an

erroneous downward departure from the Sentencing Guidelines, but

we view the sentence instead as a reflection of the district court's failure to apply the career offender guideline. The United States contends

that the district court "invalidated" Bacon's predicate offenses by

departing downward on the basis of his collateral challenge to the

1984 robbery conviction and his youth at the time of the 1980

attempted robbery conviction. (Appellant's Br. at 4.) Bacon in turn

argues that the district court justifiably departed downward from his

career offender sentence under § 4A1.3 on the basis of many factors

-- such as his education, intelligence, and potential for rehabilitation

-- in addition to Bacon's claim of innocence of a predicate offense.

For good reason, both the United States and Bacon believed the

district court granted Bacon's motion for a downward departure. (See,

e.g., Appellant's Br. at 3; Appellee's Br. at 1.) The district court did

not otherwise explain the sentence imposed, and neither party anticipated that the court would reject Bacon's career offender status, particularly since Bacon's counsel did not object to it. Moreover, the

parties' arguments and the testimony at sentencing focused on the

merits of a downward departure under § 4A1.3. The United States

first learned of Bacon's letters to the district court at the hearing and

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thus had no notice that the court would perceive them as an objection

to career offender status. When the district court pronounced Bacon's

sentence, therefore, the parties understandably believed it had granted

Bacon's motion for a downward departure.

Having thoroughly reviewed the record, however, we conclude that

the district court did not grant the motion to depart downward.1 The

district court's docket sheet does not reflect the entry of a ruling on

Bacon's motion, and the Judgment entered states that no departure

was made. Moreover, the district court construed Bacon's letters to

the court as an objection to the Probation Officer's finding that he was

a career offender. Implicitly then, Bacon's sentence was not a departure from the Guidelines, but resulted from the district court's failure

to apply the career offender guideline, the propriety of which is the

only issue before us on appeal.

III.

We find that neither the Guidelines, nor federal law, nor constitutional law, permitted Bacon to collaterally attack his predicate offense

in the sentencing proceeding below. The district court therefore erred

in disregarding one of Bacon's prior convictions and sentencing him

as a non-career offender. The United States may appeal the district

court's refusal to impose a career offender sentence as an incorrect

application of the Guidelines. See 18 U.S.C.A. § 3742(b)(2) (West

Supp. 1996). While we must give "due deference" to the district

court's application of the Guidelines to the facts of Bacon's case, 18

U.S.C.A. § 3742(e) (West Supp. 1996), those facts are uncontested

and this appeal turns on a purely legal question-- whether the district

court was authorized to disregard a prior robbery conviction that otherwise counts as a predicate offense based on a defendant's claim that

he has obtained new, exculpatory evidence in connection with that

crime. Our review therefore approaches a de novo standard. See

United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989).

We observe at the outset that if the 1984 robbery conviction counts

as a predicate offense, and we conclude that it does, Bacon meets the

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1 Of course, because this issue is not before us, we express no opinion

on whether a justified basis for departure exists.

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criteria for an enhanced sentence as a career offender. Under § 4B1.1,

Bacon's Criminal History Category automatically is elevated to VI

and his offense level to 37 because: (1) he was at least eighteen years

old at the time of the offense of conviction; (2) the offense of conviction is a controlled substance offense; and (3) he has two prior felony

convictions for crimes of violence.2 Therefore, Bacon's case facially

meets the criteria for a career offender sentence under the Guidelines,

and we turn now to the question of whether the district court erred in

deciding not to count the robbery as a predicate offense.

Whether a prior conviction must be counted under§ 4B1.1 is determined by reference to § 4A1.2. See U.S.S.G. § 4B1.2, comment.

(n.4). Application Note Six to § 4A1.2 provides that a sentencing

court must count a predicate conviction that has not been reversed,

vacated, or invalidated in a prior case, unless federal law or the Constitution secures the defendant's right to challenge the conviction in

the current sentencing proceeding:

Sentences resulting from convictions that (A) have been

reversed or vacated because of errors of law or because of

subsequently discovered evidence exonerating the defendant, or (B) have been ruled constitutionally invalid in a

prior case are not to be counted. With respect to the current

sentencing proceeding, this guideline and commentary do

not confer upon the defendant any right to attack collaterally

a prior conviction or sentence beyond any such rights otherwise recognized in law.

U.S.S.G. § 4A1.2, comment. (n.6.) (citation omitted).

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2 Bacon's state robbery offenses are violent felonies. See U.S.S.G.

§ 4B1.2, comment. (n.2) (expressly defining robbery as a crime of violence and including any offense, such as attempted robbery, that "by its

nature, presented a serious potential risk of physical injury to another").

In addition, although the Guidelines generally do not count adjudications

before age eighteen as predicate convictions, see U.S.S.G. § 4A1.2, comment. (n.7), Bacon's attempted robbery at age seventeen nevertheless

counts because he was tried as an adult for that offense and received a

sentence in excess of one year and one month. See U.S.S.G. § 4A1.2(d).

Finally, Bacon was incarcerated for both of the predicate offenses within

fifteen years of the instant offense. See U.S.S.G. § 4A1.2(e).

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Bacon's robbery conviction has not been reversed, vacated, or

invalidated in any prior case.3 And, a federal sentencing court cannot

"approve, enforce, or vacate [a] prior conviction," but must sentence

Bacon properly for the instant offense. United States v. Mitchell, 18

F.3d 1355, 1361 (7th Cir.), cert. denied, 115 S. Ct. 640 (1994).

The 1984 robbery conviction therefore counts as a predicate

offense under § 4B1.1 unless federal or constitutional law provides an

avenue for Bacon's collateral attack.4 See U.S.S.G. § 4A1.2, comment. (n.6.) Bacon, however, has not called our attention to any

authority for his challenge, and we know of none. Although 21

U.S.C.A. § 851(c) (West 1981) allows a defendant to challenge the

validity of a prior conviction used to enhance a statutory sentence for

a federal drug offense, see Custis, 114 S. Ct. at 1736-37 (examining

21 U.S.C.A. § 851(c)), that section does not extend to enhancements

under the Guidelines. See United States v. Foster, 68 F.3d 86, 89 (4th

Cir. 1995) (joining other circuits in holding that the requirement

under § 851(a) that the Government file an information reciting the

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3 Indeed, Bacon's failure to seek post-conviction relief in the state

courts or in a federal habeas court since his robbery conviction in 1984

"bespeak[s] a recognized lack of basis for doing so, thus raising in question the basis now claimed for making the attempt in an even more attenuated collateral setting." United States v. Jones, 977 F.2d 105, 109 (4th

Cir. 1992), cert. denied, 507 U.S. 939 (1993).

Of course, if Bacon succeeds in a future collateral proceeding in overturning his robbery conviction, federal law enables him then to seek

review of any federal sentence that was enhanced due to his state conviction. See Custis, 114 S. Ct. at 1739; see 28 U.S.C.A. § 2255 (West 1994);

United States v. Nichols, 30 F.3d 35 (5th Cir. 1994) (holding that a petitioner who obtained a vacatur of a state conviction underlying a federal

career offender enhancement stated a claim for relief under 28 U.S.C.A.

§ 2255) (per curiam).

4 The meaning of the term "collateral attack" in the sentencing context

differs from its meaning in the context of a habeas corpus action, because

a defendant before a federal sentencing court "is not asking [the] federal

court to vacate his prior state conviction, but merely, when determining

his sentence, to disregard the fact that he has a prior conviction." See

Mitchell, 18 F.3d at 1358 n.1. For purposes of sentencing, the defendant

"attacks" a prior conviction in the sense that he asks the district court to

disregard it as a potential predicate offense.

 7
prior convictions before entry of a guilty plea does not apply to

Guidelines enhancements). Moreover, the federal statute implemented

by the career offender guideline lacks any indication that Congress

intended to permit this sort of challenge to the counting of a predicate

offense. See 28 U.S.C. § 994(h) (West 1993 & Supp. 1996) (directing

the Sentencing Commission to "assure that the guidelines specify a

sentence [for career offenders] to a term of imprisonment at or near

the maximum term authorized" by federal law). By omitting authority

for collateral attacks from § 994(h), Congress suggested that it did not

intend to give that right to career offenders under the Guidelines. Cf.

Custis, 114 S. Ct. at 1736 (noting that "when Congress intended to

authorize collateral attacks on prior convictions at the time of sentencing, it knew how to do so" with express statutory language).

Furthermore, in his letters and testimony, Bacon did not allege that

the 1984 robbery conviction suffered from any constitutional infirmity; he merely asked the district court to disregard the robbery

offense because he had discovered new evidence in connection with

that conviction. We can perceive no constitutional basis for this

objection, particularly because Bacon was represented by appointed

counsel during his trial for the 1984 offense. In Custis, the Supreme

Court held that a defendant may not collaterally attack a prior conviction underlying a statutory sentence enhancement unless the prior

conviction was obtained in the absence of counsel. See Custis, 114 S.

Ct. at 1731-32. Because Bacon was represented by counsel, there is

no constitutional basis for the district court to consider his newly discovered evidence in connection with the robbery conviction.

Moreover, there are compelling reasons not to entertain Bacon's

collateral attack. Although it arises under the Sentencing Guidelines,

Bacon's case is analogous to Custis, in which the Supreme Court outlined significant jurisprudential and practical reasons for precluding

a federal defendant subject to an enhanced sentence under the Armed

Career Offender Act (ACCA), 18 U.S.C. § 924(e), from using "the

federal sentencing forum to gain review of his state convictions."

Custis, 114 S. Ct. at 1739. The Court concluded that "Congress did

not prescribe and the Constitution does not require such delay and

protraction of the federal sentencing process." Id. Such review would

burden the district courts with the task of "rummag[ing] through frequently nonexistent or difficult to obtain state court transcripts or

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records that may date from another era, and may come from any one

of the 50 states." Id. at 1738-39. The Court also acknowledged the

"interest in promoting the finality of judgments," which applies "with

at least equal force" in the sentencing context as it does in a habeas

corpus action. Id. at 1739.

Custis therefore prohibited a defendant from attacking a predicate

offense underlying a statutorily mandated sentence enhancement, and,

like many of our sister circuits, we find its reasoning equally compelling in the context of Guidelines sentencing.5 As in statutory sentencing cases, unrestricted challenges to predicate offenses in Guidelines

cases would "place a substantial burden both on the prosecutors who

[would] be forced to defend the predicate convictions used in sentence enhancement, and on the district judges who[would] be forced

to hear those challenges." Custis, 988 F.2d 1355, 1361 (4th Cir.

1993), aff'd, 511 U.S. 540 (1994); see also United States v. Burke, 67

F.3d 1, 3 (1st Cir. 1995) (surveying practical barriers including the

complexity of the records and delay in obtaining them, potential for

error in the absence of parties to prior case, and the finality doctrine).

Many of these very pitfalls appear in Bacon's case. During the course

of sentencing in district court for a federal narcotics offense, Bacon

professed his innocence of a robbery that occurred in New York more

than a decade earlier. He testified at the hearing about details concerning a state witness in the robbery trial who supposedly perjured herself. If the United States had been on notice that the district court

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5 At least eight other courts of appeals have extended Custis to Guidelines cases. See, respectively, United States v. Cordero, 42 F.3d 697, 701

(1st Cir. 1994); United States v. Jones, 27 F.3d 50, 52 (2d Cir.) (per

curiam), cert. denied, 115 S. Ct. 377 (1994); United States v. Thomas, 42

F.3d 823, 824 (3d Cir. 1994); United States v. Bonds, 48 F.3d 184, 186-

87 (6th Cir. 1995); United States v. Arango-Montoya, 61 F.3d 1331,

1336 (7th Cir. 1995); United States v. Killion , 30 F.3d 844, 846 (7th Cir.

1994), cert. denied, 115 S. Ct. 954 (1995); United States v. Jones, 28

F.3d 69, 70 (8th Cir. 1994) (per curiam); United States v. Burrows, 36

F.3d 875, 885 (9th Cir. 1994); United States v. Garcia, 42 F.3d 573, 581

(10th Cir. 1994); see also United States v. Burke, 67 F.3d 1, 3 (1st Cir.

1995) (holding that a defendant has no right to challenge the legality of

a predicate federal offense under § 5G1.3(a), which requires the district

court to impose a sentence consecutive to a prior federal sentence).

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intended to entertain this objection to Bacon's career offender status,

how would it have substantiated the robbery conviction? Would it

have called the state witness, produced the state prosecutor, or introduced documentary evidence related to the state conviction? Obviously, with the noted exceptions, a federal sentencing court is an

improper forum for airing a defendant's grievances concerning a prior

conviction, whether in the context of statutory or Guidelines sentencing. See United States v. Bonds, 48 F.3d 184, 187 (6th Cir. 1995).

Finally, we previously have ruled that the Sentencing Guidelines

do not independently authorize a collateral attack on a predicate

offense. See United States v. Byrd, 995 F.2d 536, 540 (4th Cir. 1993),

cert. denied, 114 S. Ct. 2140 (1994). In Byrd, the defendant argued

that the 1991 Guidelines Manual authorized a federal court to consider his claim that one of the predicate offenses used to establish his

career offender status under § 4B1.1 was the product of an involuntary guilty plea. Id. We concluded that Application Note Six to

§ 4A1.2 provided "no independent authority for a district court to

refuse to count a prior conviction that has not previously been ruled

constitutionally invalid." Id. at 539. 6 The Sentencing Commission has

since deleted the troublesome background commentary upon which

Byrd rested his case, and the Guidelines now clearly do not authorize

challenges to predicate offenses, with the exception of those based on

previous adjudications, federal law, or a prior denial of legal representation as explained in Custis. See U.S.S.G. § 4A1.2, comment. (n.6.)

(Nov. 1994).

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6 We reached this conclusion under the 1991 version of the Guidelines

Manual, which provided, "The Commission leaves for court determination the issue of whether a defendant may collaterally attack at sentencing a prior conviction." U.S.S.G. § 4A1.2, comment. (back'd.) (Nov.

1991). In combination with Application Note Six to§ 4A1.2 (which is

substantially the same as the first sentence of today's version and is

quoted supra in the text) these provisions contained "conflicting signals

on the propriety of entertaining constitutional challenges to predicate

convictions." Custis, 988 F.2d at n.2 (noting that U.S.S.G. § 4A1.2, comment (back'd.) at that time left the issue to the courts to decide, and they

reached conflicting results); see also Byrd, 995 F.2d at 539 (noting that

courts of appeals took different approaches to this issue under the guidelines then in effect).

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For all of these reasons, the district court should have counted

Bacon's robbery conviction, as well as his attempted robbery conviction, as predicate offenses under the career offender guideline. Sentencing Bacon to a 150 month term of imprisonment as a non-career

offender contravened Congress's expressed intention to see career

offenders sentenced at or near the maximum term authorized by statute, a life term in Bacon's case. See U.S.S.G. § 4B1.1, comment.

(back'd.) (noting that § 4B1.1 implements this mandate as set forth in

28 U.S.C. § 994(h)). The district court had no authority to reject

Bacon's career offender status. Under § 4B1.1, a career offender who

is subject to a statutory maximum term of life imprisonment "shall"

have offense level 37 (which can be adjusted for acceptance of

responsibility) and criminal history category VI. After an adjustment

for acceptance of responsibility, the district court was correct in its

initial calculation of Bacon's offense level of 34, which produced a

guideline range of 262 to 327 months imprisonment.

IV.

Because the district court improperly failed to sentence Bacon

within the appropriate sentencing range, we vacate the sentence

imposed and remand for resentencing. See 18 U.S.C.A. § 3742(f)(1).

VACATED AND REMANDED

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