The H onorable Thomas M. Shanahan, United States District Judge for th e 1 District of Nebraska. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1500

___________ United States of America, *
* Appellee, *
* Appeal from the Unite d 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 Abisai Loya-Guzman, * * [UNPUBLISHED] Appellant.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 possessin g methamphetamine with intent to distribute, in violatio n of 21 U .S.C. § 841(a)(1) (1994). Loya-Guzman's tota l offe nse level of nineteen and Category III crimina l history called for a sentencing guidelines imprisonmen t range of thirty-seven to forty-six months. N evertheless, the District Court sentenced him to the statutory minimu m 1 sent ence of sixty months, see 21 U.S.C. § 841(b)(1)(B )-2-

(199 4), and five years supervised release because Loya

Guzman had-3-

more than one criminal history point and thus was no t ent itled to relief under U.S. Sentencing Guideline s Manu al § 5C1.2(1) (1995) (providing for sentencing i n accordance with guidelines range, despite any statutor y minimum se ntence, if defendant meets certain conditions, including not having more than one criminal h istory point
as determined under guidelines). Loya-Guzman appeals , and we affirm.

As he d id in the District Court, Loya-Guzman argue s th at he is entitled to relief under section 5C1.2(1 ) beca use of the District Court's improper assessment o f crimina l history points based on two of his prior stat e conviction s. For purposes of section 5C1.2(1), criminal history points are determined under chapter four of th e guidelines. Id. § 5C1.2 comment. n.1. We re view de novo the District Court's interpretation of chapter four o f the guidelines, and we review for clear error th e Dist rict Court's application of chapter four to th e facts

. See United States v. Strange , 102 F.3d 356, 36 1 (8th Cir. 1996). Loya-Guzman argues t hat one of his prior convictions is invalid for purposes of sentencing on the instan t offe nse because he was advised of his constitutiona l right s in Spanish by means of a video and because th e unde rlying state court documents create an ambiguity a s to whether he was represented by counsel when he pleaded guilty. He argues that his other conviction is invali d because it is unclear whether the judge informed him o f the possible penalty of probation before he pleade d guilty. We address Loya-Guzman's challenge onl y concerning the alleged lack of counsel; as the Distric t Court recognized, he cannot otherwise collate rally attack-4-

his prior state convictions during his senten cing for the inst ant offense. See U.S. Sentencing Guidelines Manua l § 4A1.2 comment. n.6 (1995) (stating that guideline an d accompanying commentary "do not confer upon t he defendant any right to attack collaterally a prior conviction o r sent ence beyond any such rights otherwise recognized i n law") ; United States v. Jones , 28 F.3d 69, 70 (8th Cir

. 1994 ) (per curiam) (concluding that courts must follo w plai n meaning of section 4A1.2 n.6 unless Constitutio n requ ires court to allow a collateral attack a t sentencing; "Constitution only requires feder al courts to permit a collateral-5-

atta ck on an earlier state conviction during federa l sent encing when the defendant asserts the state cour t violate d the defendant's right to appointed counsel").

We agree with the District Court that Loya-Guzma n failed to carry his burden of demonstrating he wa s uncounsele d when he pleaded guilty to the prior offense. The underlying entry-of-plea transcript clearly show s that he ha d counsel before he pleaded guilty, and we are not persua ded by Loya-Guzman's argument that the written judgment is inconsistent with the plea transcript. Se e United Sta tes v. Early , 77 F.3d 242, 245 (8th Cir. 1996) (per curiam) (concluding that for sentencing purposes , afte r "government has carried its initial burden o f proving the fact of conviction, it is the defendant' s burd en to show a prior conviction was no t constitutionally valid"); United States v. Redding , 10 4 F.3d 96, 99 (7th Cir. 1996) (stating that a prio r conviction is presumptively void for sentencing purposes only where unconstitutional deprivation of counsel i s plainly detectable from the record; where record was a t best ambiguous, defendant presented insufficient basi s for collaterally attacking prior state conviction a t sentencing).
Consequently, we conclude that the District Cour t correctly imposed the statutory minimum sente nce of sixty months. See U.S. Sentencing Guidelines Manua l § 5G1.1(b) (1995) (where statutorily required minimum sentence i s gre ater than maximum sentence imposed by guideline s range , statutorily required minimum sentence shall b e sentence under guidelines). Accordingly, we affirm.-6-

A true copy.

Attest:

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