Unpublished Disposition, 936 F.2d 580 (9th Cir. 1991)

No. 90-50405.

United States Court of Appeals, Ninth Circuit.

Before CANBY and RYMER, Circuit Judges, and WARE^** , District Judge.

MEMORANDUM^*** 

Ellis was convicted of unarmed robbery of a financial institution under 18 U.S.C. § 2113(a). Pursuant to United States Sentencing Guidelines 4B1.1, Ellis was classified as a career offender allowing the district court to enhance his sentence.¹ 

Ellis' sole contention on appeal is that one of his two prior convictions for "crimes of violence" was the result of a guilty plea that may not have been taken in accordance with Boykin v. Alabama, 395 U.S. 238 (1969). Ellis argues that his 1985 conviction, therefore, cannot be counted for the purpose of designating him as a career offender.

In Boykin v. Alabama, the Court held that it was constitutional error for a trial court to accept a guilty plea without an affirmative showing that the plea was voluntary and intelligent.²  Id. at 243-44. Ellis is not arguing, however, that his 1985 conviction is invalid for purposes of overturning that conviction, but rather than it is invalid for purposes of counting toward career offender status. This court was faced with a similar issue in United States v. Newman, 912 F.2d 1119 (9th Cir. 1990), decided after Ellis was sentenced. In Newman, the government wished to use a prior conviction from a guilty plea to enhance Newman's sentence. We ruled that the government satisfies its initial burden of proof by establishing the fact of conviction; the defendant then has the burden of establishing the constitutional invalidity of the conviction. Id. at 1122. The only evidence produced at Newman's sentencing was the trial transcript and the minute order of the state court's plea hearing. We held that these two documents together adequately confirmed that the plea was voluntary and intelligent, so that the conviction could be used for sentence enhancement. We went on to say, however, that Newman was not a case of a totally "silent record," suggesting that the result would be different if that were the case. As an example of a "totally silent" record, we cited United States v. Pricepaul, 540 F.2d 417, 419 (9th Cir. 1976). In Pricepaul, the record consisted solely of a minute order of the state plea hearing and that minute order did not state that the defendant had waived his rights. That record fell short of an affirmative showing that the plea was voluntary and intelligent for purposes of using the resulting conviction to enhance a subsequent sentence. Pricepaul, 540 F.2d at 421-22.

We most recently had occasion to revisit this question in United States v. Carroll, No. 90-10179, slip op. at 5825 (9th Cir. May 9, 1991). The issue in that case was the validity of prior convictions for purposes of determining the defendant's criminal history under the Sentencing Guidelines. As here, the convictions in issue were evidenced only by minute entries. Two of those entries recited that the defendant had been advised of his rights to jury trial, to confrontation of witnesses, and against self-incrimination, and had waived them. A third entry simply recited that defendant, who was represented by counsel, pleaded guilty.

The defendant in Carroll attacked the first two convictions in exactly the same manner that Ellis attacks his 1985 conviction here: the defendant did not dispute the fact that the minute entry showed a waiver of rights, but argued only that the absence of a transcript confirming the waiver precluded use of the convictions. We rejected the contention, stating that " [i]n the absence of other evidence, the court records which assert that he did waive his rights must be presumed to be correct." Carroll, slip op. at 5830.³ 

This ruling in Carroll is dispositive of Ellis's appeal. Ellis offered no evidence of any kind to rebut the statement in the minute entry stating that he had waived his rights, nor did he ask for an evidentiary hearing. The district court did not err in accepting the minute entry as establishing that Ellis had knowingly and intelligently entered his plea of guilty to the 1985 conviction. The judgment of the district court

AFFIRMED.