Unpublished Disposition, 875 F.2d 319 (9th Cir. 1978)

MEMORANDUM

Morris appeals his sentence for possessing a firearm when he had three previous convictions for violent felonies. Morris contends that his previous convictions for violent felonies are based upon involuntary guilty pleas and thus fail to provide the proper factual predicate for enhancing his sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

The government charged Morris with possessing a firearm in violation of 18 U.S.C. § 922(g) (1), and sought a sentence enhancement pursuant to 18 U.S.C. §§ 924(d) (1) and 924(e) (1). Morris filed a timely motion to suppress his prior convictions, arguing such convictions were the result of constitutionally defective guilty pleas.

Morris had pleaded guilty and had been convicted of four prior felonies in state court. First, he pleaded guilty to burglary on December 21, 1972, and again on May 15, 1974. Finally, on October 13, 1978, Morris pled guilty to armed robbery and robbery.

At the hearing, the government produced certified, exemplified copies of three separate guilty pleas entered by Morris in the superior court, Orange County, California. Two of the three pleas were accompanied by Morris's written waiver of his constitutional rights. Morris offered no evidence that his prior guilty convictions were the product of unconstitutional pleas. The district court denied Morris's motion to suppress and strike his prior convictions from the indictment.

At trial, Morris stipulated to his prior convictions but reserved the right to challenge their constitutionality. Following a bench trial, the court found Morris guilty. Prior to sentencing, Morris renewed his challenge to the constitutionality of his prior guilty pleas which the court rejected. Morris was sentenced to the mandatory minimum term of 15 years' imprisonment under 18 U.S.C. § 924(e) (1). Morris timely appeals.

Morris contends that his previous felony convictions are based upon guilty pleas which were neither voluntarily nor intelligently given and thus fail to provide the proper factual predicate for enhancing his sentence. The issue here is whether the district court erred in relying on Morris's prior felony convictions to enhance his sentence. As a mixed question of law and fact, we review the voluntariness of a guilty plea independently. See United States v. McConney, 728 F.2d 1195, 1204 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984). The district court's findings of fact regarding the constitutional validity of prior felony convictions must be supported by clear and convincing evidence. See United States v. Freed, 703 F.2d 394, 395 (9th Cir.) (Freed), cert. denied, 464 U.S. 839 (1983).

Prior felony convictions based on guilty pleas entered in state criminal trials may be used to enhance a defendant's sentence only if the defendant voluntarily and intelligently waived several federal constitutional rights. Boykin v. Alabama, 395 U.S. 238, 242-43 (1968). The accused must waive the right (1) to a trial by jury, (2) to confront accusers, and (3) to avoid self-incrimination. Id. at 243. The constitutional validity of a guilty plea may be attacked collaterally when that conviction is being used as the basis for sentence enhancement. United States v. Clawson, 831 F.2d 909, 914 (9th Cir. 1987) (Clawson), cert. denied, 109 S. Ct. 303 (1988). While constitutional waivers are not dependent upon a particular ritual, the record must affirmatively disclose that the guilty plea was entered understandingly and voluntarily. See Freed, 703 F.2d at 395. If the record does not affirmatively establish a waiver of Boykin rights, then the government has the burden to prove that the prior guilty plea was entered after an intelligent and voluntary waiver of the accused's constitutional rights. See United States v. Goodheim, 651 F.2d 1294, 1299 (9th Cir. 1981) (Goodheim I) ; United States v. Pricepaul, 540 F.2d 417, 424 (9th Cir. 1976) (Pricepaul) .

Here, Morris was represented by counsel and executed a written waiver of constitutional rights when he entered his pleas to robbery and armed robbery in 1978. Morris pleaded guilty to two crimes on a single plea agreement in 1978. This plea is sufficient to charge him with two felonies for purposes of sentence enhancement. See United States v. Wicks, 833 F.2d 192, 193 (9th Cir. 1987), cert. denied, 109 S. Ct. 381 (1988). The record of Morris's 1974 guilty plea to burglary contains a written waiver of his constitutional rights and indicates that he was represented by counsel. In addition, the state court's record of both the 1974 and 1978 pleas state that Morris intelligently waived his constitutional rights.

The record therefore affirmatively discloses that Morris's 1974 and 1978 guilty pleas were voluntarily and knowingly entered. See Pricepaul, 540 F.2d at 424-25. The burden of proof never shifted to the government to prove the validity of Morris's guilty pleas. See id.; Goodheim I, 651 F.2d at 1299. Moreover, Morris failed to proffer any evidence that his prior guilty pleas were entered into in violation of Boykin. We hold that Morris's three felony convictions provide a sufficient basis to enhance his sentence. See Clawson, 831 F.2d at 914-15. We need not address the constitutionality of Morris's 1972 plea.

AFFIRMED.