Unpublished Disposition, 930 F.2d 30 (9th Cir. 1991)

MEMORANDUM^** 

Richard Keith Hill appeals his sentence. The district court, without holding an evidentiary hearing, included a 1968 conviction in Hill's criminal history score. Hill contends the 1968 conviction, which resulted from a guilty plea, is constitutionally invalid because he has no recollection that when he entered his plea he was advised of his constitutional rights to remain silent, to a jury trial, and to confront his accusers as required by Boykin v. Alabama, 395 U.S. 238 (1969). There is no available record of Hill's 1968 guilty plea. Hill's case file cannot be found.

The Sentencing Guidelines provide that " [c]onvictions which the defendant shows to have been constitutionally invalid may not be counted in the criminal history score." U.S.S.G. Sec. 4A1.2, comment. (n. 6). If the 1968 conviction were not included, Hill would be in criminal history category IV (70-87 months), rather than category V (84-105 months). Hill was sentenced to serve 105 months in prison plus five years of supervised release.

We have jurisdiction under 28 U.S.C. § 1291. We remand for an evidentiary hearing on the question whether Hill's 1968 guilty plea was knowingly and voluntarily entered.

DISCUSSION

A district court's determination whether a prior conviction falls within the scope of the Sentencing Guidelines is reviewed de novo; factual matters concerning the prior convictions are reviewed for clear error. United States v. Newman, 912 F.2d 1119, 1123 (9th Cir. 1990) (citing United States v. Gross, 897 F.2d 414, 416 (9th Cir. 1990)).

Boykin was decided in 1969. At the time Hill entered his guilty plea in 1968, there was no requirement that a defendant be advised of the three Boykin rights. We have held that Boykin will not be applied retroactively.¹  Other circuits also have generally accepted Boykin's prospective application.² 

Pleas antedating Boykin are constitutionally tested against whether they were made voluntarily, with an understanding of the charge and the consequences of the plea. United States v. McWilliams, 730 F.2d 1218, 1223 (9th Cir. 1984); De Kaplany v. Enomoto, 540 F.2d at 975, 978 n. 4 (9th Cir. 1976), cert. denied, 429 U.S. 1075 (1977).

The burden of proof in demonstrating the constitutional infirmity of the 1968 conviction under pre-Boykin standards is as follows:

[W]here the government seeks the inclusion of the prior conviction in a criminal history score calculation, its proof of the fact of conviction would satisfy its initial burden. Then, ... the defendant would have the burden to establish the constitutional invalidity of the prior conviction for purposes of determining the criminal history category.

Newman, 912 F.2d at 1121.

Hill satisfied his burden by documenting the missing case file and the absence of any record of the proceedings at which his 1968 guilty plea was entered. Silence of the record in a prior case on the question whether a defendant voluntarily and intelligently waived his constitutional rights by entering a guilty plea is enough by itself to shift the burden to the government to go forward with the evidence to establish that the plea was voluntary and intelligent. United States v. Pricepaul, 540 F.2d 417, 423 (9th Cir. 1976). In the present case, if the government can prove in an evidentiary hearing that Hill's 1968 plea was voluntary and intelligent, the conviction may be included in Hill's criminal history score; otherwise, it cannot. See Wilkins v. Erickson, 505 F.2d 761, 764-65 (9th Cir. 1974); see also United States v. Freed, 703 F.2d 394, 395 (9th Cir.) (considering evidence of trial court's plea-taking practice and of counsel's practice in advising clients), cert. denied, 464 U.S. 839 (1983); United States v. Goodheim, 686 F.2d 776, 777-78 (9th Cir. 1982) (considering testimony of defendant and evidence of trial judge's practice).

Because the district court failed to hold an evidentiary hearing, we vacate Hill's sentence and remand this case to the district court to hold an evidentiary hearing on the question whether Hill's plea was knowingly and voluntarily entered.

VACATED and REMANDED.