WESLEY E. BROWN, Senior District Judge.
This matter came before the court on the defendant's objection to the Presentence Report. The court ruled orally on the objection at the sentencing hearing of January 31, 2000. This written memorandum will supplement the court's oral ruling.
The defendant contends that the prior convictions described in paragraphs 27, 29 and 30 of the Report, which occurred in Wichita Municipal Court, were based on guilty pleas entered by his attorney without his consent. The defendant states that he was not present for the plea or sentencing in these three cases, and points out that he was incarcerated at the time the pleas and sentences were entered. He concedes that under current case law, he cannot argue that the 3 criminal history points for these convictions should be removed because a prior conviction can only be collaterally attacked when there was a complete denial of the right to counsel, and not when counsel merely provided ineffective assistance. He argues, however, that instead of requiring him to seek habeas relief, the court should simply grant a downward departure.
The court finds that the defendant's objection, as well as his request for a downward departure, should be denied. The Tenth Circuit has said that unless a collateral attack is based on the complete denial of counsel, a district court sentencing a defendant under the guidelines cannot consider a collateral attack on a prior conviction. United States v. Simpson, 94 F.3d 1373, 1381-82 (10th Cir. 1996). Granting a downward departure based on the defendant's allegation that his counsel was ineffective would constitute a collateral attack on the conviction and would necessitate an inquiry into the circumstances surrounding the prior conviction. The defendant can attempt to have his prior conviction declared invalid through habeas relief and, if he is successful, he can apply to reopen the sentence in this case to the extent it is enhanced by the prior convictions. See Custis v. United States, 511 U.S. 485, 497 (1994).
Conclusion. The defendant's objection to the Presentence Report and his request for downward departure are DENIED. The Probation Officer in charge of this case shall see that a copy of this order is appended to any copy of the Presentence Report made available to the Bureau of Prisons. IT IS SO ORDERED this 1st day of February, 2000, at Wichita, Ks.