*

 The case is unanimously ordered submitted without oral argument pursuant to

Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. 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

NOV 9 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

WILLIAM HERBERT HARWOOD,

Defendant - Appellant.

No. 98-7010

(D.C. No. 97-CR-37-B)

(Eastern District of Oklahoma)

ORDER AND JUDGMENT *

Before ANDERSON , McKAY and LUCERO , Circuit Judges.

Mr. Harwood appeals his conviction for violation of 18 U.S.C. § 924(c)(1),

using and carrying firearms during and in relation to a drug trafficking crime, and

asserts that the district court erred in refusing to postpone his sentencing until his

collateral attack on his prior conviction could be heard. Harwood’s attorney has

determined that Harwood’s appeal is wholly frivolous. He has therefore filed

both a motion to withdraw as attorney of record and a corresponding Anders brief
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outlining Harwood’s apparent grounds for appeal. See Anders v. California , 386

U.S. 738, 744 (1967). Anders requires that such a brief must refer to “anything in

the record that might arguably support the appeal.” Id. Consistent with this

requirement, counsel identified the following two arguments that Harwood wished

to raise on appeal: (1) insufficient factual basis exists to sustain a conviction for

violation of 18 U.S.C. § 924(c)(1); and (2) the sentencing court erred in refusing

to postpone sentencing until Harwood’s collateral attack on his prior conviction

could be heard. 

A copy of counsel’s brief was furnished to Harwood, and he was given the

opportunity to respond or to raise any additional points. He has not done so. 

Based on our own independent examination of the proceedings, we conclude that

each of Harwood’s claims is wholly without merit. Exercising our jurisdiction

under 28 U.S.C. § 1291, we grant counsel’s motion to withdraw and affirm

Harwood’s conviction.

We reject Harwood’s claim that insufficient factual basis exists to sustain

his conviction for violation of 18 U.S.C. § 924(c)(1). When a defendant

challenges evidentiary sufficiency with respect to a charge to which the defendant

has pled guilty, “it is necessary only that the court ‘make[s] such inquiry as shall

satisfy it that there is a factual basis for the plea.’” United States v. Barnhardt , 93

F.3d 706, 709 (10th Cir. 1996) (quoting Fed. R. Crim. P. 11(f)). “The acceptance
- 3 -

of a guilty plea is deemed a factual finding that there is an adequate factual basis

for the plea.” Id. at 710 (further citations omitted). Accordingly, we will accept

the district court’s finding of fact unless it is clearly erroneous. Id. Upon review

of the transcript of change of plea in this case, it is clear that an adequate factual

basis exists to support Harwood’s guilty plea. We also accept the district court’s

finding that the plea was voluntary and made with an understanding of the charge

and its consequences. 

We reject the contention that the district court erred when it refused to

postpone Harwood’s sentencing until a collateral attack on his prior conviction

could be heard. The defendant bears the burden of proving the invalidity of a

prior conviction used for sentence enhancement. See United States v. Wicks , 995

F.2d 964, 977-78 (10th Cir. 1993). Harwood received a sentence enhancement

under the provisions of 18 U.S.C. § 924(c)(1) based on a prior conviction. A

review of the sentencing transcript indicates that the district court adhered to the

relevant procedures for establishing the existence of the predicate offense. See

21 U.S.C. § 851. The government prepared and filed an information to establish

the prior conviction in accordance with 21 U.S.C. § 851(a)(1). Prior to

imposition of the sentence, Harwood raised his assertion that the predicate

sentence was invalid because of Bailey v. United States , 516 U.S. 137 (1996),

indicating that separate counsel was representing him in those proceedings. The
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sentencing court concluded that the predicate sentence was valid for the purposes

of the sentencing proceeding, and acknowledged that if the predicate sentence

were invalidated, the court would “address that matter when the time comes.” III

R. at 9. See Custis v. United States , 511 U.S. 485, 497 (1994) (noting that a

defendant who successfully challenges a predicate offense may apply for

reopening of a federal sentence enhanced by that offense). In light of these

circumstances, we conclude that the district court did not err in refusing to

postpone sentencing until Harwood’s collateral attack on his prior conviction

could be heard. 

AFFIRMED. Counsel’s request to withdraw is GRANTED . The mandate

shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge