925 F. 2d 1466 - United States v. Douglas

Before DAVID A. NELSON and SUHRHEINRICH, Circuit Judges, and HACKETT, District Judge.*

This consolidated case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a). The attorneys of record have indicated that they do not wish to participate in oral argument.

James Franklin Douglas was found guilty of conspiracy to possess marijuana with the intent to distribute, in violation of 21 U.S.C. Sec. 846, and income tax evasion, in violation of 26 U.S.C. Sec. 7201. The district court sentenced Douglas to concurrent prison terms of sixty (60) and one hundred sixty-eight (168) months. These appeals followed and were consolidated for disposition. The parties have briefed the issues.

Upon consideration, we find the appeals to be without merit. Douglas contends that two prior state court convictions (1974--arson; 1981--drug possession) should not have been included in his criminal history because they were unconstitutional. He specifically claims that he was not advised at either guilty plea proceeding that his conviction could be used to enhance a subsequent sentence.

Douglas correctly notes that a defendant's criminal history may not reflect convictions that are shown to have been ruled constitutionally invalid. U.S.S.G. Sec. 4A1.2, comment. (n. 6). The record reflects, however, that Douglas was aware of the constitutionally significant consequences of his prior guilty pleas and that the pleas were not taken in violation of the dictates of Boykin v. Alabama, 395 U.S. 238 (1969).

Accordingly, the district court's judgments are affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.