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United States v. Jimenes

United States Court of Appeals, Seventh Circuit

March 23, 2017

United States of America, Plaintiff-Appellee,
Vincente A. Jimenes, Defendant-Appellant.

          Argued February 8, 2017

         Appeal from the United States District Court for the Central District of Illinois. No. 15-cr-40043-001 - Sara Darrow, Judge.

          Before Wood, Chief Judge, Flaum, Circuit Judge, and Conley, Chief District Judge. [*]

          WOOD, Chief Judge.

         After pleading guilty to three federal drug and money-laundering offenses, Vincente Jimenes was sentenced to 151 months' imprisonment and five years' super- vised release. In this appeal, he contends that his constitutional rights were violated by the use, for Sentencing Guidelines purposes, of a state misdemeanor conviction that was obtained without the use of a Spanish interpreter. The district court reviewed the record of the conviction and was satisfied that enough informal translation took place to support a conclusion that his guilty plea was knowing. It did not need to go that far, however, because this was not the time nor place for a collateral attack on that conviction. We therefore affirm Jimenes's sentence.


         Because Jimenes's appeal is limited to his sentence, we restrict our discussion accordingly. Before his initial sentencing hearing, which took place in July 2016, a probation officer calculated that his total offense level was 33 and his criminal history category was II, for purposes of the Sentencing Guidelines. Jimenes challenges only the criminal history calculation.

         The probation officer took into account a 2012 conviction for a class A misdemeanor offense for driving with a suspended license. (Two other charges-a petty offense for a headlamp that was out and a business offense for having no insurance-were dismissed when Jimenes pleaded guilty to the misdemeanor.) Illinois law provided that the suspended-license charge could lead to imprisonment for less than one year or conditional discharge not to exceed two years. 730 ILCS 5/5-4.5-55(a), (d). On November 21, 2012, the state judge sentenced Jimenes to conditional discharge for 24 months, plus a fine of $500.

         But Jimenes did not manage to stay out of trouble for the requisite two years. Instead, he became involved in a cocaine conspiracy, for which he was charged in federal court with conspiracy to distribute at least five kilograms of cocaine (ending June 2, 2015), conspiracy to launder proceeds (ending July 24, 2014), and money laundering to conceal drug proceeds (ending July 22, 2014). Because Jimenes committed the latter two offenses while he was still under the conditional-discharge sentence of the state court, the probation officer applied Guideline 4Al.l(d), which requires the addition of two criminal history points "if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status." This gave Jimenes a total of three criminal history points-one for the underlying state offense and two under 4Al. 1(d) -and thus landed him in Criminal History Category II, with a recommended sentencing range of 151-188 months. The district court gave Jimenes the lowest guidelines sentence: 151 months. Absent the state misdemeanor, his Criminal History Category would have been I, with an accompanying guidelines range of 135-168 months.


         This would all be straightforward but for one problem: Jimenes represents that he cannot read or speak English, and there is no indication that there was a qualified Spanish interpreter present at the state-court proceeding. Even for a Class A misdemeanor, Illinois law requires the court to "determine whether the accused is capable of understanding the English language and is capable of expressing himself in the English language so as to be understood directly by counsel, court or jury." 725 ILCS 140/1. Moreover, we have held that "a criminal defendant lacking a basic understanding of the English language has a due process right to an interpreter to enable him to understand what is said at trial and to communicate with counsel." Mendoza v. United States, 755 F.3d 821, 828 (7th Cir. 2014). But on the other hand, Mendoza held that this right did not go so far, for instance, as to require that an interpreter be at the defense table for every minute of the trial. Id.

         If Jimenes were alleging that he was deprived of proper interpretation services in the federal proceeding now before us, we would have a different case. But what he is doing is raising a collateral attack on a state-court conviction that has been used to increase his criminal-history score. We must turn for guidance, therefore, not to the Due Process Clause or to any of our own earlier decisions, but instead to the Supreme Court's decision in Custis v. United States, 511 U.S. 485 (1994).

         In Custis, the Court considered the question "whether a defendant in a federal sentencing proceeding may collaterally attack the validity of previous state convictions that are used to enhance his sentence under the [Armed Career Criminal Act, 18 U.S.C. § 924(e)]." 511 U.S. at 487. It answered that question unambiguously: "We hold that a defendant has no such right (with the sole exception of convictions obtained in violation of the right to counsel) to collaterally attack prior convictions." Id. This is a narrower rule than the one we had adopted in United States v. Mitchell, 18 F.3d 1355 (7th Cir. 1994), just three months earlier. There, we had indicated the possibility of a challenge not only if the defendant's rights under Gideon v. Wainwright, 372 U.S. 335 (1963), were violated, but also if a conviction "lack[ed] constitutionally guaranteed procedures plainly detectable from a facial examination of the record." Mitchell, 18 F.3d at 1360-61. Jimenes would like us to resurrect the Mitchell formulation, but we are not free to do so in light of the Supreme Court's more restrictive view. See United States v. Arango-Montoya, 61 F.3d 1311 (7th Cir. 1995) (recognizing that Custis limited Mitchell).

         The Custis Court stressed that the Armed Career Criminal Act itself left no door open for this kind of collateral attack on the predicate convictions that trigger it. Instead, it focused on the simple fact of the conviction. Elsewhere in the Gun Control Act of 1968, the Court found language indicating that what counts as a conviction of a crime is determined in accordance with the law of the convicting jurisdiction. 511 U.S. at 491. Thus, if a person in Jimenes's ...

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