UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4649

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOHN CHARLES BARKLEY, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. Lacy H. Thornburg,

District Judge. (CR-02-195)

Submitted: February 27, 2004 Decided: June 15, 2004

Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

R. Deke Falls, Charlotte, North Carolina, for Appellant. Robert J.

Conrad, Jr., United States Attorney, Jack M. Knight, Jr., Assistant

United States Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

John Charles Barkley, Jr., pleaded guilty to committing

three bank robberies, 18 U.S.C. § 2113(a) (2000), and was sentenced

as a career offender to a term of 166 months imprisonment. Barkley

contends on appeal that the district court clearly erred in finding

that he made statements amounting to a threat of death during one

of the robberies, U.S. Sentencing Guidelines Manual

§ 2B3.1(b)(2)(F) (2002), and in sentencing him as a career

offender. USSG § 4B1.1. We affirm.

After the bank robbery on July 12, 2002, one of the bank

tellers reported that the robber told her, “Don’t do anything funny

or I will shoot you.” A second teller stated that the robber

warned her, “Don’t make me use my gun.” Barkley conceded that

these statements would constitute a threat of death as defined in

Application Note 6 to § 2B3.1, but proffered at sentencing that he

had not made the statements. The district court accepted the

witnesses’ statements and summarily overruled Barkley’s objection

to the enhancement. We find that the district court did not

clearly err in this respect, see United States v. Love, 134 F.3d

595, 606 (4th Cir. 1998) (stating standard of review), and that the

basis for the court’s finding was implicit in its ruling.

Barkley’s career offender status was based on a prior

conviction for bank robbery and a 1990 conviction for assault on a

female. Barkley maintained that the latter misdemeanor conviction,
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for which he received a two-year sentence of imprisonment, was

constitutionally invalid. At sentencing, Barkley testified that he

was not represented when he pleaded guilty to the assault and that

he did not waive counsel. He acknowledged that he did not remember

all the details of the hearing, but maintained that he was sure he

had not been asked whether he wanted a lawyer. The district court

noted that North Carolina law has long required that any defendant

who may be subject to a term of imprisonment be informed of his

right to counsel, and that Barkley had at least twelve prior

criminal convictions by the time he pleaded guilty to the assault

charge, which led the court to believe that by 1990 he was familiar

with his right to counsel.

While a defendant may challenge at sentencing the

validity of a prior conviction on the ground that he was denied

counsel, Custis v. United States, 511 U.S. 485, 495 (1994), he

bears the burden of showing that the prior conviction is invalid.

United States v. Jones, 977 F.2d 105, 109 (4th Cir. 1992). Barkley

had to overcome the presumption that the state court informed him

of his right to counsel as it was required by statute to do.

Parke v. Raley, 506 U.S. 20, 28-34 (1992) (holding that presumption

of regularity that attaches to final judgments makes it appropriate

for defendant to have burden of showing irregularity of prior

plea). He failed to meet his burden because the district court did

not find Barkley’s testimony sufficiently clear or credible to
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establish that he had not been informed of his right to counsel and

had not waived counsel. Given the court’s assessment of Barkley’s

credibility, which we will not review, United States v. Hobbs, 136

F.3d 384, 391 n.11 (4th Cir. 1998), the court did not err in

finding that Barkley had not been denied his right to counsel and

that he qualified for sentencing as a career offender.

We therefore affirm the sentence imposed by the district

court. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED