The Honorable Thomas M. Shanahan, United States District Judge for the

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District of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-1500

___________

United States of America, *

*

Appellee, *

* Appeal from the United

States

v. * District Court for the 

* District of Nebraska.

Abisai Loya-Guzman, *

* [UNPUBLISHED]

Appellant. *

___________

 Submitted: August 5, 1997

 Filed: August 19,

1997

___________

Before FAGG, BOWMAN, and MURPHY, Circuit Judges.

___________

PER CURIAM.

Abisai Loya-Guzman pleaded guilty to possessing

methamphetamine with intent to distribute, in violation

of 21 U.S.C. § 841(a)(1) (1994). Loya-Guzman's total

offense level of nineteen and Category III criminal

history called for a sentencing guidelines imprisonment

range of thirty-seven to forty-six months. Nevertheless,

the District Court sentenced him to the statutory minimum

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sentence of sixty months, see 21 U.S.C. § 841(b)(1)(B)
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(1994), and five years supervised release because LoyaGuzman had 
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more than one criminal history point and thus was not

entitled to relief under U.S. Sentencing Guidelines

Manual § 5C1.2(1) (1995) (providing for sentencing in

accordance with guidelines range, despite any statutory

minimum sentence, if defendant meets certain conditions,

including not having more than one criminal history point

as determined under guidelines). Loya-Guzman appeals,

and we affirm.

As he did in the District Court, Loya-Guzman argues

that he is entitled to relief under section 5C1.2(1)

because of the District Court's improper assessment of

criminal history points based on two of his prior state

convictions. For purposes of section 5C1.2(1), criminal

history points are determined under chapter four of the

guidelines. Id. § 5C1.2 comment. n.1. We review de novo

the District Court's interpretation of chapter four of

the guidelines, and we review for clear error the

District Court's application of chapter four to the

facts. See United States v. Strange, 102 F.3d 356, 361

(8th Cir. 1996).

Loya-Guzman argues that one of his prior convictions

is invalid for purposes of sentencing on the instant

offense because he was advised of his constitutional

rights in Spanish by means of a video and because the

underlying state court documents create an ambiguity as

to whether he was represented by counsel when he pleaded

guilty. He argues that his other conviction is invalid

because it is unclear whether the judge informed him of

the possible penalty of probation before he pleaded

guilty. We address Loya-Guzman's challenge only

concerning the alleged lack of counsel; as the District

Court recognized, he cannot otherwise collaterally attack
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his prior state convictions during his sentencing for the

instant offense. See U.S. Sentencing Guidelines Manual

§ 4A1.2 comment. n.6 (1995) (stating that guideline and

accompanying commentary "do not confer upon the defendant

any right to attack collaterally a prior conviction or

sentence beyond any such rights otherwise recognized in

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

1994) (per curiam) (concluding that courts must follow

plain meaning of section 4A1.2 n.6 unless Constitution

requires court to allow a collateral attack at

sentencing; "Constitution only requires federal courts to

permit a collateral 
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attack on an earlier state conviction during federal

sentencing when the defendant asserts the state court

violated the defendant's right to appointed counsel").

We agree with the District Court that Loya-Guzman

failed to carry his burden of demonstrating he was

uncounseled when he pleaded guilty to the prior offense.

The underlying entry-of-plea transcript clearly shows

that he had counsel before he pleaded guilty, and we are

not persuaded by Loya-Guzman's argument that the written

judgment is inconsistent with the plea transcript. See

United States v. Early, 77 F.3d 242, 245 (8th Cir. 1996)

(per curiam) (concluding that for sentencing purposes,

after "government has carried its initial burden of

proving the fact of conviction, it is the defendant's

burden to show a prior conviction was not

constitutionally valid"); United States v. Redding, 104

F.3d 96, 99 (7th Cir. 1996) (stating that a prior

conviction is presumptively void for sentencing purposes

only where unconstitutional deprivation of counsel is

plainly detectable from the record; where record was at

best ambiguous, defendant presented insufficient basis

for collaterally attacking prior state conviction at

sentencing). 

Consequently, we conclude that the District Court

correctly imposed the statutory minimum sentence of sixty

months. See U.S. Sentencing Guidelines Manual § 5G1.1(b)

(1995) (where statutorily required minimum sentence is

greater than maximum sentence imposed by guidelines

range, statutorily required minimum sentence shall be

sentence under guidelines). Accordingly, we affirm.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.