USCA1 Opinion

July 6, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________

No. 94-2132

UNITED STATES,

Appellee,

v.

DOUGLAS ABRAHAMS,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

___________________

____________________

Before

Cyr, Boudin and Lynch,

Circuit Judges.
______________

____________________

Roger A. Cox on brief for appellant.

____________

____________________

____________________

Per Curiam.
___________

conspiring to

Douglas

Abrahams

possess cocaine with intent

pled

guilty

to

to distribute and

to distribute cocaine in violation of 21 U.S.C.

sentenced

to

appealed

from

serve

Anders
______

in

his sentence.

Attorney Roger

under

92 months

After

Cox as appellate

v. California,
__________

ground

that he had

ground

for appeal.

federal

brief.

386

U.S. 738

He

appointed

counsel, Cox filed

been unable to

(1967),

a brief

on the

identify any meritorious

Cox also filed a

Abrahams has

prison.

this court

motion to withdraw as

Abrahams' counsel, notifying Abrahams of his

separate

846 and was

not filed

right to file a

a brief,

and the

deadline for doing so has now passed.

We agree

issues,

that

that this appeal presents

and so we affirm the sentence.

Abrahams did

not

believe that

no meritorious

The record indicates

he should

receive the

enhanced

base offense level

the United States Sentencing

1993).

in

Guidelines Manual

4B1.1 (Nov.

Relying on Abrahams' previous convictions for robbery

Maine and for assault and battery with a dangerous weapon

in Massachusetts,

was

accorded career offenders under

the probation officer found

a career offender within

the meaning of

enhanced Abrahams' base offense level

that Abrahams

4B1.1 and so

under that guideline.1

____________________

1.

The

convictions

robbery in Cumberland
conviction for

were a

June

25,

County, Maine, and

assault and battery

weapon in Newburyport, Massachusetts.

1984 conviction

for

an April 15,

1988

by means of

a dangerous

In

letter to

objected

Abraham's

to

the

the

probation

use

of

those

career offender

Massachusetts had

officer, Abrahams'

status.

reneged

on

convictions

According

plea

to

to

agreement

counsel

establish

counsel,

promising

Abrahams a concurrent sentence on the Massachusetts charge if

he

pled guilty to both the

Counsel also stated that

Maine and Massachusetts charges.

no mittimus had ever been

the Massachusetts conviction.

filed in

At

based

on

sentencing,

counsel

reasserted his

Massachusetts'

alleged

violation

of

objection

its

plea

agreement with Abrahams, although his objection may have been

limited to

States, 114
______

the Maine

conviction.

Citing Custis
______

S. Ct. 1732, 1735-36, 1738-39

v. United
______

(1994), the court

overruled the objection because Abrahams had been represented

by

counsel in

Court

those

convictions.

held that the Armed

924(e),

did

not

attack, and it

statute.

Id.
___

defendants could

Career Criminal Act,

specifically

declined to

at

In Custis,
______

permit

any

imply any such

1735-36.

The

attack a prior state

for sentence enhancement under

Court

the Supreme

18 U.S.C.

such collateral

right under

also

held

the

that

court conviction used

the Constitution only if they

had not been represented by counsel at all in connection with

the prior conviction.

The

foreclosed

district

Id. at 1738.
___

court

any constitutionally

-3-

correctly found

that

based collateral

Custis
______

attack on

Abrahams'

According

prior

to

state

the

represented by

convictions

presentence

counsel in

convictions.

His

sentencing hearing.

guideline

note

4B1.1.

of

Abrahams

had

been

and Massachusetts

that

fact

career offender

Guideline

convictions under

sentencing.

at

the

Guidelines

collateral attack on prior state

to establish

4B1.1.

Application

affirmed

his

addition, the Sentencing

do not independently permit

convictions used

report,

both the Maine

counsel

In

at

4A1.2 applies

See USSG
___

status under

in counting

4B1.2, comment. (n.4).

that guideline

states

that

"this

guideline and commentary do not confer upon the defendant any

right

to

attack

proceeding] a

rights

collaterally

prior conviction

otherwise

recognized

[in

current

sentencing

or sentence beyond

in

law[.]"

At

any such

sentencing,

counsel did

regulation

not

assert

that

independent of the

any other

statute,

Guidelines gave

rule

or

Abrahams any

such right, and, as noted, the Constitution conferred no such

right on Abrahams here.

1229,

1337 (1st

resolved

guidelines

in

Cir.

Custis
______

as under

See United States v. Munoz, 36

___ _____________
_____

1994)

is

the

the Armed

(the

constitutional

same

under

the

Career Criminal

F.3d

question

sentencing

Act), cert.
_____

denied, 115 S. Ct. 1164 (1995).

______

Accordingly, the court did not err in accepting the

probation officer's determination that Abrahams was a

offender within the meaning of

4B1.1.

career

See United States v.

___ _____________

-4-

Garcia, 42 F.3d 573,

______

578-81 (10th Cir. 1994);

United States
_____________

v. Jones, 28 F.3d 69, 70 (8th Cir. 1994) (both concluding, on

_____

the basis of application note 6 in the 1993 USSG Manual, that

defendant,

offender

had

who had

no

right

been

found to

be

to collaterally

attack

4B1.1 career

his

prior

convictions where he had been represented by counsel in those

convictions and had not

pointed to any other law

that would

authorize such a challenge); compare United States v. Isaacs,

_______ _____________
______

14

F.3d 106,

109-10

application

note

convictions

at

& n.3

(1st

precluded

sentencing),

Cir. 1994)

collateral

(after

review

1990,

of prior

limitation on other grounds

______________________________

recognized in United States v. Cordero, 42 F.3d 697, 701 (1st

_____________ _____________
_______

Cir. 1994).

We have reviewed the

hearing and

sentencing hearing

transcripts of Abrahams' plea

carefully and have

error that would warrant this appeal.

found no

Since Cox has complied

with all requirements of Loc. R. 46.4(a), we hereby grant his

_____

motion to withdraw as counsel and affirm Abrahams' sentence.

______

It is so ordered.
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