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United States v. Pisciotta

*fn* submitted: March 23, 1993.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
EDWARD PISCIOTTA, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of California. D.C. No. CR-91-0414-RSWL. Ronald S. W. Lew, District Judge, Presiding

Before: Wallace, Chief Judge, Farris and Brunetti, Circuit Judges.

MEMORANDUM

Edward Pisciotta appeals his 185-month sentence after his guilty pleas to bank robbery with a dangerous weapon and use of a firearm in a crime of violence in violation of 18 U.S.C. §§ 2113(a),(d), 924(c). Pisciotta contends that the district erred by: (1) including in his criminal history score a 1980 state burglary conviction which resulted from an invalid guilty plea; and (2) refusing to order that his federal sentence run concurrently with an undischarged state sentence. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. Prior Conviction

Pisciotta contends that the district court erred by failing to hold an evidentiary hearing regarding the constitutionally of his 1980 conviction. We reject this contention.

We review de novo the district court's application and interpretation of the Guidelines. United States v. Hunter, No. 90-30252, slip op. 1889, 1896 (9th Cir. Mar. 3, 1993).

In computing a defendant's criminal history score, "sentences resulting from convictions that a defendant shows to have been previously ruled constitutionally invalid are not to be counted." U.S.S.G. § 4A1.2, comment. (n.6). We have recently held that, despite the restrictive language of Note 6, a defendant may collaterally attack, at sentencing, a prior conviction which will be used to increase his punishment. United States v. Vea-Gonzales, No. 91-30469, slip op. 1329, 1342 (9th Cir. Feb. 22, 1993). The district court must conduct a hearing to establish the validity of such a conviction. Id. at 1344.

Here, sentencing occurred on April 27, 1992. The presentence report (PSR) contained a recommendation that Pisciotta receive three points in his criminal history score for a 1980 state burglary conviction which resulted from a guilty plea. Pisciotta argued that 1980 conviction should be excluded from his criminal history computation because the lack of records regarding his plea prevented the district court from determining if the plea was "constitutionally infirm." The district court, without the benefit of Vea-Gonzales, implicitly rejected this argument by adopting the PSR recommendation.

We decline to extend our holding in Vea-Gonzales to the facts of this case because Pisciotta has never alleged a specific constitutional infirmity regarding the prior conviction. See, id., No. 91-30469, slip op. at 1337 (challenge to prior conviction based upon ground of ineffective assistance of counsel); United States v. Carroll, 932 F.2d 823, 824 (9th Cir. 1991) (waiver of constitutional rights not knowing and voluntary); United States v. Newman, 912 F.2d 1119, 1122 (9th Cir. 1990) (same); see also Feldman v. Perrill, 902 F.2d 1445, 1447-49 (9th Cir. 1990) (allowing federal prisoner to challenge his sentence on grounds that his enhancing prior state conviction was unconstitutional because he was incompetent to enter a plea in the state proceeding). Accordingly, we hold no error.

2. Consecutive Sentence

Pisciotta appears to contend that the district court erroneously awarded him credit for time served against his federal sentence based upon his arrival in federal custody. Thus, he argues that we should construe the district court's award of credit against his federal sentence as an order for concurrent sentencing with his undischarged state sentence. Alternatively, Pisciotta argues that we should vacate and remand for the district court to clarify its statements.

We review de novo the legality of a sentence. United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc) (per curiam), cert. denied, 61 U.S.L.W. 3620 (U.S. Mar. 8, 1993) (No. 92-7383).

"Under 18 U.S.C. § 3585(b), the district court lacks the authority to award a defendant credit for time spent in official detention prior to sentencing. Rather, the Attorney General, through the Bureau of Prisons, is responsible for administering the sentence and determining the amount of the defendant's jail-term credit." Hunter, No. 90-30252, slip op. at 1899 (citation omitted). Additionally, a district court has the authority to order a federal sentence to run consecutively to a state sentence. See Hardesty, 977 F.2d at 1349.

Here, on March 5, 1991, Pisciotta received a sixteen-month sentence in state court for a petty theft conviction. On August 6, 1991, Pisciotta was transferred from state to federal custody to resolve the federal charges. On December ...


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