977 F.2d 575: United States of America, Plaintiff-appellee, v. Kenneth Warrix, Defendant-appellant.united States of America, Plaintiff-appellee, v. Kenneth Warrix, Defendant-appellant
United States Court of Appeals, Fourth Circuit. - 977 F.2d 575
Submitted: June 25, 1992Decided: October 2, 1992
Appeals from the United States District Court for the Southern District of West Virginia, at Huntington. Robert J. Staker, District Judge. (CR-88-191-3, CA-90-1051-3)
Kenneth Warrix, Appellant Pro Se.
Hunter P. Smith, Jr., Assistant United States Attorney, Charleston, West Virginia, for Appellee.
Before SPROUSE and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge.
Kenneth Warrix appeals from the district court's orders that denied his motion to vacate his sentence under 28 U.S.C.s 2255 (1988) and granted the government's postjudgment motion to release a trial exhibit to the FBI. Our review of the record and the district court's opinion discloses that this appeal is without merit. Accordingly, we affirm on the reasoning of the district court on all issues except for its discussion of the use of an uncounseled misdemeanor conviction in calculating Warrix's criminal history category. United States v. Warrix, Nos. CR-88-191-3, CA-90-1051-3 (S.D.W. Va. Dec. 12 and 18, 1991).
It is not necessary in this case to decide whether prior uncounseled misdemeanor convictions may be used in calculating a defendant's criminal history. There is presently a split among the circuits on the use of prior uncounseled misdemeanor convictions in calculating a defendant's criminal history. Compare United States v. Eckford, 910 F.2d 216, 220 (5th Cir. 1990) (allowing such use) with United States v. Hookano, 957 F.2d 714, 716 (9th Cir. 1992) and Wang v. Whitworth, 811 F.2d 952, 955 (6th Cir. 1987) (prohibiting such use). See also United States Sentencing Comm'n, Guidelines Manual, § 4A1.2 (Background) (1991) (allowing such use).
The attorney's lack of objection to sentencing, in light of these conflicting authorities, does not fall below an objective standard of reasonableness. See Strickland v. Washington, 466 U.S. 668, 687-91 (1984). We affirm on the ground that Warrix's counsel was not ineffective. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
We also deny appellant's motion to stay proceedings in this court.