United States of America, Plaintiff-appellee, v. Marvin Dale Frazee, Aka Marvin Dale, Defendant-appellant, 56 F.3d 78 (10th Cir. 1995)

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US Court of Appeals for the Tenth Circuit - 56 F.3d 78 (10th Cir. 1995) May 31, 1995

Before MOORE and EBEL, Circuit Judges, and KANE,**  District Judge.

ORDER AND JUDGMENT1 

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Defendant Marvin Dale Frazee appeals the sentence imposed by the district court following a jury verdict finding him guilty of both counts of a two-count indictment. Defendant's sentence was enhanced pursuant to the Armed Career Criminal Act, 18 U.S.C. 924(e).

Defendant challenges the validity of one of the convictions used for enhancement arguing it was obtained in violation of his constitutional rights. The district court refused to consider defendant's objection, holding that the Supreme Court's decision in Custis v. United States, 114 S. Ct. 1732 (1994) foreclosed his argument. We agree.

In Custis, the Court held that a defendant may not collaterally attack the validity of previous state convictions used to enhance his federal sentence under 924(e) unless the challenged conviction was obtained in violation of his right to counsel. Id. at 1734; see also United States v. Garcia, 42 F.3d 573, 581 (10th Cir. 1994) (district court sentencing a defendant under 924(e) cannot entertain a collateral attack on a prior conviction except for one asserting complete denial of counsel).

Defendant admits, and the record shows, the challenged conviction was counseled. Defendant may not challenge his conviction now, although he may do so later through a federal habeas petition after exhaustion of his state court remedies. See Custis, 114 S. Ct. at 1739; Garcia, 42 F.3d at 581.

The judgment of the United States District Court for the District of Wyoming is AFFIRMED.

 **

Honorable John L. Kane, Jr., Senior District Judge, United States District Court for the District of Colorado, sitting by designation

 1

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470