United States v. Roger Alan Lee

Roger Alan Lee appeals his sentence under the Sentencing Guidelines of 20 months’ imprisonment upon his conviction by guilty plea of counterfeiting obligations of the United States, in violation of 18 U.S.C. § 471 . Lee argues that the district court erred in counting a sentence he received for an un-counseled misdemeanor battery conviction in determining Lee’s criminal history category because even if constitutionally valid, such convictions may not be used for sentence enhancement under Baldosar v. Illinois, 446 U.S. 222 , 100 S.Ct. 1585 , 64 L.Ed.2d 169 (1980). The government responds that because Lee affirmatively waived any assistance of counsel, the conviction may be counted in determining Lee’s criminal history. We agree with the government.

In United States v. Brady, 928 F.2d 844 (9th Cir.1991), we adopted Justice Marshall’s view in Baldosar that “ ‘an uncounseled misdemeanor conviction may not be used collaterally to impose an increased term of imprisonment upon a subsequent conviction.’ ” 928 F.2d at 854 (quoting 446 U.S. at 226 , 100 S.Ct. at 1587 (Marshall, J., concurring)). While this statement appears to state a categorical rule that such convictions may not be…