* After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. This Order and Judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 2 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DANIEL L. CARD, Defendant-Appellant. No. 98-4023 (D.C. No. 97-CR-189-C) (D. Utah)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL and MURPHY , Circuit Judges.
After a jury trial, Defendant-Appellant Daniel Card was convicted of possession of an unregistered firearm in violation of 26 U.S.C. §§ 5861(d) & 5871, and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Card was sentenced to 87 months impriso nment, three years supervised release, and a special assessment of $20 0. Card now appeals his1 We also deny Mr. Card’s motion to reconsider denial of his motion for

leave to file a supplemental opening brief. Mr. Ca rd seeks permission in this court to supplement his opening brief in order to r aise a Singletonissue. However, because Mr. Card failed to assert his clai m at trial, it is waived for purposes of his direct criminal appeal. See Tele-Communications, Inc. v. Commissioner of Internal Revenue , 104 F.3d 1229, 1233 (10th Cir. 1997).

2 The district court adjusted Mr. Card’s offense leve l to 20 from the presentence report recommendation of 22 based on it s belief that Mr. Card had (continued...) - 2 - sentence claiming that the district court improperl y included a prior uncounseled misdemeanor conviction to calculate his criminal hi story category for purposes of determining his sentence range under the Sentencing Guidelines. We affirm. 1 I. Background According to testimony adduced at trial, Mr. Card p urchased a shotgun from a pawn shop in Orem, Utah in October 1996. OnMay 5, 1997 acquaintances of Mr. Card led police to a storage shed in which t hey found the shotgun modified to illegal specifications. Mr. Card’s acquaintance s testified that they had obtained the shotgun from him. On November 3, 1997, after aone-day jury trial, Mr. Card was convicted of violating 26 U.S.C. §§ 5861(d) & 5 871 and 18 U.S.C. § 922(g)(1). On January 30, 1998, the district court conducted M r. Card’s sentencing hearing. After argument from both sides, the courtaccepted the presentence report (“PSR”) recommendation and assigned Mr. Carda total offense level of
20. 2 Moreover, the court, in accord with the PSR, conc luded that Mr. Card had 132 (...continued)

accepted responsibility for his crime. - 3 - criminal history points based on six prior adult co nvictions. The 13 criminal history points placed Mr. Card in Criminal History Category VI. The Sentencing Guidelines dictate a range of 70-87 months imprison ment for an offense level 20 with a Criminal History Category VI. The district court sentenced Mr. Card to 87 months in prison as well as three years supervised release and a special assessment of $200. At sentencing, Mr. Card did not object to his crimi nal history calculation. He now claims, however, that the trial court erred in calculating his criminal history category by adding one criminal history poi nt for a prior uncounseled misdemeanor conviction for which he was sentenced t o jail time. Further, he argues that if the court had not included the pointfor this conviction, he would have had a total of 12 criminal history points whic h would have placed him in Criminal History Category V. The sentence range fo r an offense level 20 with a Criminal History Category V is 63-78 months.
II. Discussion A. Standard of Review Because Mr. Card failed to object at sentencing ourreview is for plain
error. See Fed. R. Crim. P. 52(b); United States v. Yarnell , 129 F.3d 1127, 1137- 4 -

(10th Cir. 1997); United States v. Occhipinti , 998 F.2d 791, 801 (10th Cir. 1993). However, basing a sentence on the wrong Guideline r ange may constitute plain error if the factual predicate for the proper Guide line range was obvious. See Occhipinti , 998 F.2d at 802; United States v. Smith , 919 F.2d 123, 124 (10th Cir. 1990). B. Merits Mr. Card challenges the inclusion of one criminal h istory point based on a prior Utah state conviction for possession of marij uana. See Presentence Report ¶ 27, at 4-5. According to Mr. Card, in that case: 1 ) he was unrepresented by counsel; 2) he did not waive his right to counsel; and 3) he was sentenced to 20 days in jail. Thus, Mr. Card claims that this Utah state conviction cannot be used to enhance his present sentence because the prior c onviction was constitutionally infirm. It is well established that the Sixth and Fourteent h Amendments of the United States Constitution prohibit a court from se ntencing a defendant to a term of imprisonment unless he or she is represented by counsel or waives counsel.
See Scott v. Illinois , 440 U.S. 367, 374 (1979). Further, a court canno t base a sentence enhancement on a prior uncounseled misdeme anor conviction when the3 The Sentencing Guidelines, by negative inference, a lso support the

proposition that courts must exclude for enhancement purposes prior convictions that resulted in jail sentences in which defendant neither was represented by counsel nor waived his or her right to counsel. Se e U.S. Sentencing Guidelines Manual § 4A1.2 comment (backg’d) (“Prior sentences, not otherwise excluded, are to be counted in the criminal history score, in cluding uncounseled misdemeanor sentences where imprisonment was not imposed.”). - 5 - defendant was sentenced to imprisonment unless the defendant waived counsel.
See Nichols v. United States , 511 U.S. 738, 746-47 (1994). 3 Here, Mr. Card claims that he was assessed a crimin al history point for a Utah state conviction for possession of marijuana w hich resulted in the imposition of a jail sentence. Mr. Card further contends thatthe PSR fails to establish that he was represented by counsel or that he waived cou nsel. Mr. Card is correct. The PSR provides no clarification on the issue of r epresentation regarding Mr. Card’s Utah state marijuana possession conviction. The PSR states: “Court records are unclear concerning attorney representat ion.” See Presentence Report, ¶ 27, at 5. However, Mr. Card, not the government, had the burd en of proving by a preponderance of the evidence that his prior convic tion was constitutionally infirm. See United States v. Windle , 74 F.3d 997, 1001 (10th Cir. 1996) (“Once the government establishes the existence of a convi ction, the defendant must prove by a preponderance of the evidence that the c onviction was constitutionally infirm”); United States v. Johnson , 973 F.2d 857, 862 (10th Cir. 1992) (same);4 Mr. Card misapprehends the burden allocation in thi s case. In support of

his position that the government bears the burden o f proving sentence increases he cites United States v. Rice , 52 F.3d 843, 849 (10th Cir. 1995) and United States v. Kirk , 894 F.2d 1162, 1164 (10th Cir. 1990). While thes e cases make clear that the government generally bears the burde n of proving sentence increases, a later Tenth Circuit case has settled t he specific issue before this court. In United States v. Windle , 74 F.3d 997 (10th Cir. 1996), this court held that for sentence enhancements arising out of priorconvictions the government has the burden of establishing the existence of a c onviction. See id. at 1001. Once the government establishes the existence of a conviction, the burden shifts to the defendant to prove by a preponderance of the evidence that the conviction was constitutionally infirm. See id. Mr. Card claims that Windle cannot be applied in this case because the presentence reportin Windle established that the defendant had waived his right to counsel at each o f his convictions resulting in jail sentences. However, this factual distinction cannot alter the burden allocation established in Windle

.

5 Unless evidence shows otherwise, we must presume th at the Utah courts that convicted Mr. Card in 1990 complied with all c onstitutional requirements. See Parke v. Raley , 506 U.S. 20, 29 (1992). - 6 - see also United States v. Wicks , 995 F.2d 964, 978 (10th Cir. 1993). 4 Far from meeting his burden, Mr. Card failed even to object to the PSR’s inclusion of the prior Utah conviction as a basis for adding a crimi nal history point. 5 In light of the PSR’s ambiguity on representation and waiver re garding Mr. Card’s prior Utah state marijuana possession conviction and Mr. Card’s failure to produce any evidence to meet his burden of proving the convicti on’s infirmity, we cannot find plain error. Accordingly, we affirm.- 7 -

The mandate shall issue forthwith.
ENTERED FOR THE COURT

David M. Ebel Circuit Judge