* This order and judgment is not binding precedent, except under the

doctrines of 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

AUG 31 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CAPRIANO TOMAS TUM-PEREZ,

Defendant-Appellant.

No. 97-4073

(D.C. No. 96-CR-10-02-W)

(D. Utah)

ORDER AND JUDGMENT *

Before ANDERSON , BARRETT , and TACHA , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.
-2-

Defendant Capriano Tomas Tum-Perez appeals the sentence imposed

pursuant to his entry of a guilty plea to the charge of distribution of a controlled

substance in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. We affirm.

Defendant’s appeal is based on his contention that a prior conviction for

driving while under the influence should not have been considered when

computing his criminal history for this case because his guilty plea in the earlier

case was entered without the assistance of a certified interpreter. He also claims

the district court’s failure to resolve that objection to the presentence report

violated Rule 32(b)(6)(D) & (c)(1) of the Federal Rules of Criminal Procedure.

“The district court’s factual findings at sentencing are reviewed for clear error,

while its interpretation of the Sentencing Guidelines is a question of law reviewed

de novo.” United States v. Simpson , 94 F.3d 1373, 1380 (10th Cir. 1996).

The record reflects that defense counsel informed the district court that he

intended to try to have the earlier conviction set aside by the state court. He did

not challenge the fact of the prior conviction. He asked only that he be permitted

to seek relief in the event he was successful in having the prior conviction

dismissed.

Unless a collateral attack is based on the complete denial of counsel,

a district court sentencing a defendant based on criminal history calculations

under United States Sentencing Guidelines § 4A1.1 cannot consider a collateral
-3-

attack on a prior conviction. See Simpson , 94 F.3d at 1381-82 (citing United

States v. Garcia , 42 F.3d 573, 581 (10th Cir. 1994)). In this case, defendant’s

criminal history was computed pursuant to U.S.S.G. § 4A1.1. He challenged his

prior conviction due to the absence of a certified interpreter, not the complete

absence of counsel. Therefore, the district court correctly declined to consider

defendant’s collateral attack on his prior conviction. Simpson has foreclosed

defendant’s argument that Rule 32(b)(6)(D) & (c)(1) required the district court to

resolve the merits of defendant’s collateral attack prior to imposing a sentence on

the federal charges. If defendant succeeds in his efforts to set aside the prior

conviction, he may apply to reopen any sentence enhanced by the prior

conviction. See Custis v. United States , 511 U.S. 485, 497 (1994) ; Garcia ,

42 F.3d at 581-82.

The government’s motion to dismiss for lack of jurisdiction is DENIED. 

The judgment of the United States District Court for the District of Utah is

AFFIRMED.

Entered for the Court

Stephen H. Anderson

Circuit Judge