Unpublished Disposition, 928 F.2d 1137 (9th Cir. 1991)

MEMORANDUM^** 

Roger Jonathan Scott Campbell appeals his sentence under the United States Sentencing Guidelines ("Guidelines"), following his guilty plea to conspiracy, carrying a firearm in relation to a violent crime and obstruction of justice.

Counsel for Campbell filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), which identifies four possible issues for review: (1) whether the district court erred by including a prior burglary conviction in its criminal history calculation; (2) whether the district court enhanced Campbell's sentence by considering the obstruction of justice charge twice; (3) whether the district court clearly erred by finding Campbell had made a threat of physical violence to a codefendant, and; (4) whether the district court erred by using the preponderance of evidence standard.¹  We have jurisdiction under 28 U.S.C. § 1291 and we grant counsel's request to withdraw and affirm the sentence.

"Whether a prior conviction is covered under the Sentencing Guidelines is ... reviewed de novo, while factual matters concerning the prior conviction are reviewed for clear error." United States v. Newman, 912 F.2d 1119, 1123 (9th Cir. 1990). Once the government has shown that a prior conviction should be included in a defendant's criminal history calculation, the defendant has the burden to establish by a preponderance of the evidence the constitutional invalidity of the prior conviction. Id., 912 F.2d at 1122.

Here, Campbell urged the district court at the sentencing hearing to disregard a prior conviction for burglary because the plea form had not advised him of all the elements of burglary. Nevertheless, at the time Campbell entered his guilty plea to the prior conviction, he was represented by defense counsel and expressly admitted to committing two burglaries. Nothing indicated that Campbell did not understand the charges to which he pled guilty. See id., 912 F.2d at 1124 (notice of every element of offense on the record not required). Therefore, the district court, here, did not err by concluding that Campbell had failed to show that his plea was inadequate and correctly included Campbell's prior burglary conviction in the criminal history calculation. See id.

Campbell contends that the district court erred by "considering obstructing pursuant to 18 U.S.C. § 1503 as an enhancement factor pursuant to the Guidelines and also considering it a separate and distinct crime." Counsel's Brief at 3.

Campbell failed to raise this issue before the district court and thus, we decline to review it now. See United States v. States of Oregon, 769 F.2d 1410, 1414 (9th Cir. 1985).

Whether a defendant has made a threat of physical violence to another individual is a question of fact and reviewed for clear error. See United States v. Barbosa, 906 F.2d 1366, 1369 (9th Cir.), cert. denied, 111 S. Ct. 394 (1990). In reviewing the imposition of a sentence, we give "due regard to the opportunity of the district court to judge the credibility of the witnesses." Id., 906 F.2d at 1370.

Here, the district court heard testimony from Stuart Dowsley and Joseph Hickey. Both men were in the same holding cell with Campbell when he made the remarks in question. Campbell spoke to Dowsley, who stated that Campbell threatened to harm a codefendant if that codefendant refused to modify his testimony. Hickey, who was not a party to this conversation, stated that he did not hear Campbell make threats. The district court found that Dowsley was the least likely witness to fabricate a story and found Hickey's testimony incredible. Thus, the district court concluded that Campbell had made a threat of physical violence while obstructing the administration of justice, warranting an eight level increase to the base offense level pursuant to U.S.S.G. Sec. 2J1.2(B) (1). The district court's conclusion was not clearly erroneous. See id.

Campbell contends that the district court erred by applying the preponderance of the evidence standard at the sentencing hearing.

" [D]istrict courts are constitutionally required to make factual determinations underlying application of the Guidelines by at least a preponderance of the evidence." United States v. Wilson, 900 F.2d 1350, 1354 (9th Cir. 1990). Therefore, the district court did not err.

MOTION TO WITHDRAW GRANTED AND SENTENCE AFFIRMED.