Criminal Defense of Immigrants


§ 10.36 B. Prior Convictions

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Invalid prior convictions may not be considered in sentencing.[107]  During the sentencing process, therefore, counsel can attack the validity of a prior conviction or sentence, to prevent it from being used to enhance the sentence on the current case.  For procedures by which to do so, see § 10.36(A), infra.  For a discussion of grounds on which to do so, see § 10.36(B), infra.

[107] Tucker v. United States, 404 U.S. 443, 446 (1972) (conviction invalid because of a violation of the right to counsel may not be considered in sentencing); see also Nichols v. United States, 511 U.S. 738 (1994) (no error in considering prior valid misdemeanor conviction even though defendant had not been represented by counsel); Johnson v. Mississippi, 486 U.S. 578 (1988) (capital sentence based in part on invalid prior felony conviction held cruel and unusual); Moore v. Jarvis, 885 F.2d 1565 (11th Cir. 1989) (due process precluded imposing enhanced sentence based on prior conviction flowing from involuntary plea of guilty).