United States v. Shelvin

No. 99-20910
-1-
* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20910
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VINCENT JOSEPH SHELVIN,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-98-CR-120-1
--------------------
June 29, 2000
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Vincent Joseph Shelvin appeals his sentence for possession
with intent to distribute crack cocaine. He argues that the
district court had discretion to consider his collateral
challenge under to a state conviction used to calculate his
criminal history under U.S.S.G. § 4A1.2 and United States v.
Canales, 960 F.2d 1111, 1115 (5th Cir. 1992). Canales has been
superseded by the 1993 amendments to the commentary of § 4A1.2
and by the Supreme Court’s ruling in Custis v. United States, 511
U.S. 485, 487 (1994). See United States v. Toliver, No. 94-40978

-- 1 of 2 --

No. 99-20910
-2-
** Unpublished opinions issued before January 1, 1996, have
precedential value. 5TH CIR. R. 47.5.3.
(5th Cir. Mar. 17, 1995).** Under the new language of the
commentary, Shelvin may collaterally attack his prior conviction
only if that right is otherwise recognized in law. § 4A1.2,
comment. (n.6). Shelvin has failed to provide any authority for
a collateral attack on his sentence.
Moreover, even if the district court did have discretion
under Canales to consider the collateral attack, the court chose
not to exercise its discretion in Shelvin’s case. The court
refused to rule on the validity of a state conviction under state
law until after the state courts had had an opportunity to
address the issue. Shelvin cannot show an abuse of discretion in
that decision. Shelvin’s sentence is AFFIRMED.

-- 2 of 2 --