United States of America, Plaintiff-appellee, v. Edward Darnell Fondren, Defendant-appellant, 54 F.3d 533 (9th Cir. 1995)

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US Court of Appeals for the Ninth Circuit - 54 F.3d 533 (9th Cir. 1995) Argued and Submitted July 12, 1994. Decided Aug. 12, 1994. Amended Dec. 19, 1994. As Amended May 1, 1995

Olivia W. Karlin and Craig Wilke, Deputy Federal Public Defenders, Los Angeles, CA, for defendant-appellant.

Daniel S. Goodman, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before: POOLE and REINHARDT, Circuit Judges and TANNER,*  District Judge.

ORDER

The Opinion filed on December 19, 1994 is hereby amended by deleting the third full paragraph at 43 F.3d 1228, 1229 (9th Cir. 1994) and by replacing it with the following paragraph:

OPINION

TANNER, District Judge:

Edward Darnell Fondren appeals his sentence after a conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He was sentenced to the mandatory minimum of fifteen (15) years under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). We have jurisdiction over this timely appeal and AFFIRM.

Fondren raises only one issue on appeal. He challenges the validity of a 1985 California state conviction for robbery. The robbery conviction was used as a predicate felony to qualify Fondren for ACCA status. He alleges that his guilty plea in that case was not voluntary because he was erroneously informed about, and relied upon, his eligibility for Youth Authority placement, and that he was not completely informed about his rights to a jury trial and, therefore, did not voluntarily waive those rights. The district court considered Fondren's arguments and rejected them, holding that the prior plea was constitutionally obtained and considered that conviction in sentencing the defendant under the ACCA.

On May 23, 1994, the Supreme Court decided Custis v. United States, --- U.S. ----, 114 S. Ct. 1732, 128 L. Ed. 2d 517 (1994), which has limited a defendant's ability to challenge an underlying predicate conviction under the ACCA at the time of sentencing. Custis holds that a defendant has no constitutional right to collaterally attack a state court conviction used to enhance a sentence under the ACCA, at the time of such sentencing, except in the limited circumstance of a conviction obtained in violation of the right to counsel. Custis, --- U.S. at ---- - ----, 114 S. Ct. at 1738-39. Here, the record indicates that Fondren was represented by counsel on the 1985 robbery conviction. Therefore, under Custis, the defendant may not challenge his underlying conviction in this proceeding.

The defendant urges that the Sentencing Guidelines afford an independent source of authority for a collateral challenge to a predicate state conviction at the time of an ACCA sentencing. However, the defendant has provided no authority in support of his contention, and it appears that Custis forecloses the defendant's argument. In Custis, the Court concluded that Congress did not intend a defendant sentenced under 18 U.S.C. § 924(e) to allow collateral attacks. Custis, --- U.S. at ---- - ----, 114 S. Ct. at 1736-37. Moreover, in rejecting the defendant's argument that he had a right to collaterally attack his sentence under that provision of the ACCA, the court explicitly held that "a defendant has no such right (with the sole exception of convictions obtained in violation of the right to counsel) to collaterally attack prior convictions." Custis, --- U.S. at ----, 114 S. Ct. at 1734 (emphasis added). Accordingly, we decline to find that the Guidelines override the Court's holding in Custis.

The defendant further argues that if he can't challenge his prior convictions directly, this court should nevertheless review his claims because he has presented all of the information that he would present in a habeas petition. He takes the position that judicial economy would be advanced by ruling on his contentions now, rather than later. The Court in Custis was presented with the same arguments and rejected the position. "If Custis is successful in attacking these state sentences, he may then apply for reopening of any federal sentence enhanced by the state sentences." --- U.S. at ----, 114 S. Ct. at 1739 (emphasis added). We adopt the position advanced by the Custis court and decline to transform this appeal of a federal sentence into an appeal from a denial of a writ of habeas corpus.

AFFIRMED.

 *

The Honorable Jack E. Tanner, Senior United States District Judge for the Western District of Washington, sitting by designation