United States of America v. Vincente A. Jimenes

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐3191
U NITED STATES OF A MERICA ,
Plaintiff‐Appellee,
v.
VINCENTE A. J IMENES,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 15‐cr‐40043‐001 — Sara Darrow, Judge.
____________________
A RGUED FEBRUARY 8, 2017 — D ECIDED MARCH 23, 2017
____________________
Before WOOD, Chief Judge, FLAUM, Circuit Judge, and
C ONLEY, Chief District Judge.*
W OOD, 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‐
* Of the Western District of Wisconsin, sitting by designation.

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2 No. 16‐3191
vised release. In this appeal, he contends that his constitu‐
tional rights were violated by the use, for Sentencing Guide‐
lines 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 con‐
clusion 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.
I
Because Jimenes’s appeal is limited to his sentence, we re‐
strict our discussion accordingly. Before his initial sentencing
hearing, which took place in July 2016, a probation officer cal‐
culated that his total offense level was 33 and his criminal his‐
tory category was II, for purposes of the Sentencing Guide‐
lines. 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 sus‐
pended 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

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No. 16‐3191 3
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 pro‐
ceeds (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 ap‐
plied Guideline 4A1.1(d), which requires the addition of two
criminal history points “if the defendant committed the in‐
stant offense while under any criminal justice sentence, in‐
cluding 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 of‐
fense and two under 4A1.1(d)—and thus landed him in Crim‐
inal 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 mis‐
demeanor, his Criminal History Category would have been I,
with an accompanying guidelines range of 135–168 months.
II
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 inter‐
preter 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 crimi‐
nal defendant lacking a basic understanding of the English
language has a due process right to an interpreter to enable

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4 No. 16‐3191
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 ques‐
tion unambiguously: “We hold that a defendant has no such
right (with the sole exception of convictions obtained in vio‐
lation of the right to counsel) to collaterally attack prior con‐
victions.” 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 un‐
der 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

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No. 16‐3191 5
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 Con‐
trol Act of 1968, the Court found language indicating that
what counts as a conviction of a crime is determined in ac‐
cordance with the law of the convicting jurisdiction. 511 U.S.
at 491. Thus, if a person in Jimenes’s shoes were to return to
the state court and have the conviction expunged, a later fed‐
eral proceeding could not take it into account.
Custis squarely rejected the invitation to extend the ability
to mount a collateral attack on a prior conviction used for sen‐
tencing enhancement beyond the right to have appointed
counsel. In so doing, it rejected the defendant’s efforts to ar‐
gue that he had been denied effective assistance of counsel,
that his guilty plea was not knowing and intelligent, and that
he had not adequately been advised of his trial rights. Id. at
496. We see no distinction between these arguments and
Jimenes’s assertion that he did not adequately understand the
prior state court proceeding because of a language barrier. We
also see nothing that would justify a distinction between the
Armed Career Criminal Act and the Sentencing Guidelines
for this purpose. For both the statute and the Guidelines, the
inquiry is over once the fact of the conviction is established.
In neither case is there any rule that would require an exhaus‐
tive examination of every prior conviction to see if it is vul‐
nerable to some kind of challenge.
Two final points are important here. First, Jimenes does
not argue that his fundamental right to counsel was violated,

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6 No. 16‐3191
even though he proceeded pro se in the state court. His state
conviction did not result in incarceration, and under Nichols
v. United States, 511 U.S. 738 (1994), prior misdemeanor con‐
victions may be used as sentencing enhancers even if the de‐
fendant did not have counsel, as long as the sentence did not
include imprisonment. Id. at 746–47. This is true even if the
enhanced sentence in the later proceeding does result in im‐
prisonment. Id.
Second, even if we are reading Custis too narrowly, and
we were to look for the kind of “plainly detectable” error de‐
scribed in Mitchell, we would have trouble finding such error
here. The transcript of the state‐court proceeding is in the rec‐
ord, and in four different places over just two pages it contains
this notation: “Spanish‐speaking discussion was held off the
record.” True, we do not know what was said in those discus‐
sions, nor do we know anything about the ability of the
speaker to convey accurately the substance of the court’s com‐
ments in English. The record refers to an “unidentified
speaker” who tells the court a few pertinent things, such as
“[h]e got proof of insurance.” On the other hand, at the end,
when the court asks whether “he” (Jimenes) has any ques‐
tions, the unidentified speaker rather oddly answers, “All
right. Thank you.”
More than that would certainly be required if that were
the record of his conviction in the district court. But it is not.
The best we can say is that we have no idea how much, or how
little, Jimenes understood in the state court proceeding. He
signed a “Waiver of Attorney,” and he signed a “Plea of Guilty
and Waiver of Jury,” both of which are written only in Eng‐
lish. This murky record does not reveal the kind of “plainly

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No. 16‐3191 7
detectable” flaw the Supreme Court found in a Gideon viola‐
tion, or that we had in mind in Mitchell.
The district court, upon reading the state‐court transcript,
went directly to the merits of Jimenes’s challenge and found
that “it is clear from the transcript … that, albeit not an official
court reporter, it’s on the record that he was allowed time for
interpretation off on the side in order to enter a knowing
plea.” As we have said, we are not so confident that the record
permits this inference. But that does not matter, given Custis.
Jimenes’s final argument is that the government has
waived its right to rely on Custis, because it has raised this
point for the first time on appeal. At worst, however, we
would regard this as forfeiture of the argument, and we are
not inclined to hold the government to that aspect of its litiga‐
tion strategy. It prevailed, after all, in the district court, and is
now simply defending the court’s decision on a different
ground. Moreover, Custis has important implications for the
operation of the Sentencing Guidelines and for the relations
between federal and state courts—a fact that also argues
against a finding of forfeiture.
Once we establish that this is not the proper time or place
for Jimenes to challenge his 2012 state‐court conviction, both
the single criminal‐history point he received directly for that
offense, plus the two additional points he received because he
committed his present crimes while he was conditionally dis‐
charged for the state crime, are beyond dispute. He does not
otherwise attack his federal sentence of 151 months. We there‐
fore A FFIRM the judgment of the district court.

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