1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-20-1994

United States v. Thomas

Precedential or Non-Precedential:

Docket 94-1542

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Recommended Citation

"United States v. Thomas" (1994). 1994 Decisions. Paper 224.

http://digitalcommons.law.villanova.edu/thirdcircuit_1994/224
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 No. 94-1542 

 

 UNITED STATES OF AMERICA 

v. 

 AARON THOMAS, 

 Appellant

 

 On Appeal from the United States Court of Appeals 

 for the Eastern District of Pennsylvania 

 (D.C. Crim. No. 93-00377) 

 

 Submitted under Third Circuit LAR 34.1(a) 

 December 19, 1994 

 BEFORE: GREENBERG, SAROKIN, and WEIS, Circuit Judges

 (Filed: December 20, 1994) 

 

 Michael R. Stiles 

 United States Attorney 

 Walter S. Batty, Jr. 

 Assistant United States Attorney 

 Chief of Appeals 

 Suzanne B. Ercole 

 Assistant United States Attorney 

 Suite 1250 

 615 Chestnut Street 

 Philadelphia, PA 19106 

 Attorneys for Appellee

 David L. McColgin 

 Assistant Federal Defender 

 Elaine Demasse 

 Assistant Federal Defender 

 Senior Appellate Counsel 

 Maureen Kearney Rowley 

 Chief Federal Defender 
 Defender Association of 

 Philadelphia 

 Federal Court Division 

 437 Chestnut Street, Suite 800 

 Lafayette Building 

 Philadelphia, PA 19106 

 Attorneys for Appellant

 

 OPINION OF THE COURT 

 

GREENBERG, Circuit Judge. 

 Aaron Thomas appeals from a judgment of conviction and 

sentence entered on April 26, 1994, sentencing him to a custodial 

term of 169 months to be followed by a three-year term of 

supervised release. The sentence also included a provision for 

restitution not implicated on this appeal. The court imposed the 

sentence on Thomas' conviction based on a plea of guilty to bank 

robbery in violation of 18 U.S.C. § 2113(a). Through the 

application of the career offender section of the Sentencing 

Guidelines, his guideline range was established as 151 to 188 

months predicated on a total offense level of 29. See U.S. 

Sentencing Guidelines § 4B1.1 (1993). Without the career 

offender designation, his total offense level would have been 22. 

 Thomas' career offender status was calculated on the 

basis of two convictions, a 1987 burglary conviction in 

Philadelphia and a 1992 robbery conviction in Bucks County, 

Pennsylvania, both convictions having been based on pleas of 

guilty. As he did in the district court, Thomas challenges the 

use of his 1992 conviction for robbery to fix his status as a 

career offender. He predicates this argument on the contentions 
that he believed in 1992 that he was pleading guilty only to 

theft and that the state judge failed to inform him of several of 

his constitutional rights when he pleaded guilty. The district 

court found that the state convictions were valid. 

 We reject Thomas' argument. In Custis v. United 

States, 114 S.Ct. 1732 (1994), the Supreme Court held that except 

when a conviction is obtained in violation of a defendant's right 

to counsel, a defendant has no constitutional or statutory 

grounds to attack collaterally the validity of previous state 

convictions cited to enhance his sentence under the Armed Career 

Criminal Act. 18 U.S.C. § 924(e). We previously had held in 

United States v. Brown, 991 F.2d 1162 (3d Cir. 1993), that the 

Sentencing Guidelines grant discretion to district courts to 

entertain constitutional challenges at sentencing to prior 

convictions used to establish criminal histories. But we reached 

this conclusion on the authority of a background note to U.S. 

Sentencing Guideline § 4A1.2 which we construed to mean "that the 

courts should work out their own procedural rules regarding 

efforts by defendants to challenge convictions not previously 

held unconstitutional." Brown, 991 F.2d at 1166. Thus, we did 

not conclude in Brown that either the Guidelines or the 

Constitution itself compelled us to permit constitutional 

challenges to prior convictions used to establish criminal 

histories under the guidelines.1 

 

1. The background note on which we relied in United States v. 

Brown recited that the Sentencing "Commission leaves for court 

determination the issue of whether a defendant may collaterally 

attack at sentencing a prior conviction." This note was deleted 
 Custis, of course, has altered the situation with 

respect to challenges to prior convictions. Furthermore, we see 

no principled way to distinguish a challenge to a prior 

conviction used to justify an enhancement under the guidelines 

from a prior conviction used to justify an enhancement under the 

Armed Career Criminal Act. Custis teaches that unless the 

statute under which the defendant is sentenced explicitly 

provides the right to attack collaterally prior convictions used 

to enhance the sentence, no such right should be implied. 

Custis, 114 S.Ct. at 1736 (contrasting the Armed Career Criminal 

Act with other statutes "expressly permit[ting] repeat offenders 

to challenge prior convictions that are used for enhancement 

purposes"). In Brown itself we acknowledged that U.S. Sentencing 

Guideline § 4A1.2 provides no such right explicitly, but only 

authorizes courts to work out their own procedural rules. Brown, 

991 F.2d at 1166. In the absence of such explicit authorization, 

Guideline 4A1.2 stands in the same posture as the Armed Career 

Criminal Act addressed in Custis. 

 Consequently, we will follow the lead of the Supreme 

Court by holding that a district court, when sentencing a 

(..continued) 

effective November 1, 1993, when the Commission amended 

application note 6 to section 4A1.2 to provide that "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 rights 

otherwise recognized in law (e.g., 21 U.S.C. § 851 expressly 

provides that a defendant may collaterally attack certain prior 

convictions)." We, however, are treating this case as though the 

deleted note was still in the commentary and thus rely on Custis

and not the amendment to the commentary to reach our result. 
defendant classified as a career offender under section 4B1.1, 

cannot entertain a constitutional challenge to the underlying 

convictions except in a case in which the defendant's right to 

counsel had been denied. In reaching this result, we join the 

other courts of appeal which have declined to distinguish section 

4B1.1 from the Armed Career Criminal Act for the purpose of 

considering challenges to prior convictions. United States v. 

Garcia, F.3d , , No. 94-5028 (10th Cir. 1994); United 

States v. Killion, 30 F.3d 844, 846 (7th Cir. 1994); United 

States v. Jones, 28 F.3d 69, 70 (8th Cir. 1994); United States v. 

Jones, 27 F.3d 50, 51-52 (2d Cir.), cert. denied, 115 S.Ct. 377 

(1994). See also United States v. Munoz, 36 F.3d 1229, 1237-38 

(1st Cir. 1994); United States v. Ullyses-Salazar, 28 F.3d 932, 

939 (9th Cir. 1994). 

 In addition to distinguishing section 4B1.1 from the 

Armed Career Criminal Act, Thomas seeks to avoid Custis on two 

other bases. First, he contends that inasmuch as the government 

did not urge in the district court that he could not challenge 

the 1992 conviction, it cannot make that contention now. We 

reject this contention because the Supreme Court decided Custis

after the court sentenced Thomas, and the government was not 

obliged to make an argument in the district court barred by 

Brown. We also observe that the government raises Custis to 

affirm rather than to reverse the judgment from which the appeal 

was taken. We think that whatever might be true in other 

situations, in this unusual case in which the Supreme Court 

effectively changed the law after the completion of the district 
court proceedings, the government should be permitted to rely on 

the new ruling to uphold the district court's judgment. 

 Second, Thomas contends that Custis does not preclude a 

challenge to a prior conviction itself in a state or federal 

habeas corpus proceeding nor, in his view, does it preclude a 

federal habeas corpus attack to an enhanced sentenced predicated 

on an invalid prior conviction. See Nichols v. United States, 

114 S.Ct. 1921, 1937 (1994) (Ginsburg, J., dissenting); Custis, 

114 S.Ct. at 1746 (Souter, J., dissenting). We, however, have no 

reason to address those possibilities. The only issue before us 

is whether at the time of the sentencing the district court may 

entertain constitutional challenges to underlying convictions 

used to enhance sentences. We conclude that, except in cases in 

which a conviction was obtained in violation of a defendant's 

right to counsel, we should follow Custis and hold that such 

challenges are precluded in cases under section 4B1.1. 

 The judgment of conviction and sentence of April 26, 

1994, will be affirmed.