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United States v. Frank

United States Court of Appeals, Eighth Circuit
Apr 29, 1991
932 F.2d 700 (8th Cir. 1991)

Opinion

No. 90-5535.

Submitted April 24, 1991.

Decided April 29, 1991.

David Lee Frank, Sandstone, Minn., for appellant.

Andrew S. Dunne, Minneapolis, Minn., for appellee.

Appeal from the United States District Court for the District of Minnesota.

Before McMILLIAN, FAGG and MAGILL, Circuit Judges.


David Lee Frank appeals the district court's imposition of a twenty-one-month sentence after his guilty plea to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He argues through counsel that the district court erred in increasing his criminal history category for a diversionary disposition on a state charge, and pro se that his guilty plea was involuntary as a result of his counsel's ineffective assistance. We affirm.

The Honorable David S. Doty, United States District Judge for the District of Minnesota.

In 1984, Frank pleaded guilty to possession of marijuana in violation of Minnesota law. The state court stayed the adjudication and placed Frank on probation under Minn.Stat.Ann. § 152.18 (West 1989). In the instant case, this state probation sentence was included in the calculation of Frank's criminal history category. U.S. S.G. § 4A1.2(f) states that a diversionary disposition "resulting from a finding or admission of guilt" in a judicial proceeding is counted as a sentence under Guidelines § 4A1.1(c), even if a conviction is not formally entered. Frank's guilty plea to the state charge was an admission of guilt, and thus the state probation sentence was properly counted as a prior sentence under Guidelines § 4A1.2(f). See United States v. Giraldo-Lara, 919 F.2d 19, 22-23 (5th Cir. 1990).

Frank's argument that the inclusion of the probationary sentence in his criminal history category violated the tenth amendment is without merit. Minnesota law provides that a nonpublic record of the proceedings will be maintained "for the purpose of use by the courts in determining the merits of subsequent proceedings against such person." Minn.Stat.Ann. § 152.18(1) (West 1989). As the government points out, this latter language has been interpreted as contemplating use of the record "should defendant have `future difficulties with the law.'" State v. Goodrich, 256 N.W.2d 506, 512 (Minn. 1977).

Frank's pro se claim of ineffective assistance of counsel is dismissed without prejudice. This claim is more properly raised in a habeas corpus proceeding. See United States v. Sanchez, 927 F.2d 376, 378-79 (8th Cir. 1991) (per curiam); United States v. Murphy, 899 F.2d 714, 716 (8th Cir. 1990).

Accordingly, we affirm.


Summaries of

United States v. Frank

United States Court of Appeals, Eighth Circuit
Apr 29, 1991
932 F.2d 700 (8th Cir. 1991)
Case details for

United States v. Frank

Case Details

Full title:UNITED STATES OF AMERICA, APPELLEE, v. DAVID LEE FRANK, APPELLANT

Court:United States Court of Appeals, Eighth Circuit

Date published: Apr 29, 1991

Citations

932 F.2d 700 (8th Cir. 1991)

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