Unpublished Disposition, 907 F.2d 155 (9th Cir. 1980)

MEMORANDUM^* 

Defendant Robert Smith, Jr. ("Smith") appeals his fifteen-year sentence under the enhancement provision of former 18 U.S.C.App. II Sec. 1202(a) for possession of a firearm by a felon with three or more prior convictions for robbery or burglary.¹  Smith has four prior convictions: In 1966 he pleaded guilty to robbery; in 1974 a jury found him guilty of robbery; in 1981 he pleaded guilty to robbery; and in 1981 he pleaded guilty to burglary. Smith contends his 1966 robbery conviction and the two 1981 convictions for robbery and burglary may not be counted against him under 18 U.S.C.App. II Sec. 1202 because his constitutional rights were violated when he entered the guilty pleas on which these convictions are based. He does not challenge his 1974 robbery conviction which occurred following a jury trial. Thus, we treat the 1974 conviction as constitutionally valid. We also conclude that the 1966 and 1981 robbery convictions are constitutionally valid. We do not consider the validity of Smith's 1981 burglary conviction, and express no opinion thereon.

We have jurisdiction of this appeal under 28 U.S.C. § 1291, and we affirm Smith's sentence.

ANALYSIS

Former 18 U.S.C.App. II Sec. 1202(a) provides in pertinent part that "In the case of a person who receives, possesses, or transports in commerce or affecting commerce any firearm and who has three previous convictions by any court ... for robbery or burglary, or both, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years...."

Smith may challenge the constitutional validity of his prior convictions in a section 1202(a) proceeding. United States v. Clawson, 831 F.2d 909, 914 (9th Cir. 1987), cert. denied, 109 S. Ct. 303 (1988); see Burgett v. Texas, 389 U.S. 109 (1967).

We review the district court's determination as to the voluntariness of a guilty plea de novo. Hayes v. Kincheloe, 784 F.2d 1434, 1436 (9th Cir. 1986), cert. denied, 484 U.S. 871 (1987); see Iaea v. Sunn, 800 F.2d 861 (9th Cir. 1986). We "uphold the district court's finding of historical or subsidiary facts unless those findings are clearly erroneous." Hayes, 784 F.2d at 1436; see Iaea, 800 F.2d at 864.

Smith argues that the district court erred in concluding that his 1966 guilty plea to robbery was entered voluntarily and knowingly, because the government failed to establish that at the time Smith entered his plea he waived (1) his right to a jury trial, (2) his right to confront witnesses, and (3) his privilege against self-incrimination (collectively, the "Boykin rights").

Smith's argument assumes that waiver of the three Boykin rights must be established independently of a showing that a guilty plea was knowingly and intelligently entered. This is incorrect. Our inquiry into the constitutionality of a guilty plea subsumes inquiry into the waivers of the three constitutional rights in question. Boykin v. Alabama, 395 U.S. 238, 243 (1969); see United States v. Pricepaul, 540 F.2d 417, 420 (9th Cir. 1976).

For a guilty plea to pass constitutional muster, there must be an "affirmative showing that it was intelligent and voluntary." Boykin, 395 U.S. at 242, 244. A guilty plea includes a waiver of constitutional rights. Such waivers "not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States, 397 U.S. 742, 748 (1970). Courts must ensure that the accused "has a full understanding of what the plea connotes and of its consequences." Boykin, 395 U.S. at 244.

The government bears the burden of proof when the record is silent as to the waiver of Boykin rights. Pricepaul, 540 F.2d at 423-24. When testimony specifically relating to the prior proceeding is not available, testimony as to general practice may establish inferentially that the prior conviction was constitutional if the evidence is clear and convincing. United States v. Goodheim, 686 F.2d 776, 777 (9th Cir. 1982); see also United States v. Freed, 703 F.2d 394, 395 (9th Cir.), cert. denied, 464 U.S. 839 (1983).

In response to a contention that the Boykin rights must be specifically articulated, we have stated: " [T]he 'standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.' Specific articulation of the Boykin rights is not the sine qua non of a valid guilty plea." Wilkins v. Erickson, 505 F.2d 761, 763 (1974) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)); see Goodheim, 686 F.2d at 777.

The district court held an evidentiary hearing and heard testimony from Smith's attorney at the time he entered his plea to the 1966 robbery charge (public defender Albaum), another public defender, and the district attorney. Although they did not specifically recall Smith's case, they testified to the customary practice of entering guilty pleas at the time Smith's plea was entered. The district court found Smith's representation by Mr. Albaum to have been competent and also found from the testimony of Albaum and the other public defender that they were "good lawyers" who "took pains to make sure ... no plea was entered until it was understandably and voluntarily done." Reporter's Transcript ("R.T.") 6/10/88 at 95. The district court also noted that Smith had a good reason to enter his plea, because he wanted to take advantage of the opportunity to serve a concurrent sentence with his Fresno robbery conviction. As Albaum stated

A guy is in state prison and he says, you know, I'm there anyway and it doesn't do--mean anything to me whether I'm going to plead guilty or not guilty, just let me get this show on the road, I want to get out of here, county jail is a rathole and I want to get on--you know, back to the joint.

Id. at 65.

The district court also considered a declaration by the judge who presided over Smith's 1966 hearing. Although the judge had no independent recollection of the 1966 proceeding, after reviewing the available transcript the judge declared: (1) Smith appeared to have expressed no hesitation in his discussion with the court, but rather desired to be sentenced immediately in order to get a concurrent sentence; (2) Smith's public defender "was one of the most able and tenacious attorneys to appear" before the judge. Clerk's Record ("C.R.") 35 at 9.

The record also reflects that Smith had undergone a preliminary hearing where the prosecution was required to present a prima facie case against him. His defense attorney had a transcript of this preliminary hearing for review before the guilty plea was entered. Smith waived preparation of a presentence probation report and a six-hour delay of sentencing. The court stated its understanding that Smith desired to be sentenced immediately because he had already been sentenced to state prison in another case. Smith agreed. His plea was entered pursuant to a plea bargain by which three other counts against him were dismissed, and his sentence ran concurrently with his state prison sentence.

While the record does not show that Smith was given the Boykin litany at the time he pleaded guilty to the 1966 robbery charge, the record shows by clear and convincing evidence that his guilty plea was knowingly and intelligently entered. The judge who accepted Smith's plea stated: " [B]ased upon my review of the transcript, I have no reason to believe that Mr. Smith did not know what he was doing when he entered his plea of guilty, or was not acting voluntarily. He appears to have expressed neither hesitancy nor equivocation in pleading guilty." Id.

We are not left with the "definite and firm conviction that a mistake has been committed" after reviewing the record. United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948); see United States v. Silverman, 861 F.2d 571, 576-77 (9th Cir. 1988). The district court's findings as to historical facts are not clearly erroneous. Nor did the district court err in applying the law. We conclude that the 1966 burglary conviction is constitutionally valid.

Smith contends that he did not receive any explanation of the nature of the 1981 robbery charge to which he pleaded guilty. He argues that the record fails to disclose any statement by Smith or his attorney that the elements of robbery were explained to him, or that any attempt was made to develop a factual basis on the record for his guilty plea. He contends these alleged omissions render his guilty plea constitutionally invalid under Boykin. See Boykin, 395 U.S. at 244. We disagree.

The district court found: "the defendant was informed of the elements and nature of the offenses." R.T. 6/10/88 at 93 (regarding burglary and robbery offenses). The record clearly supports this factual finding. As the district court noted, Smith had two prior robbery convictions, id. at 30, and had "gone through a trial where all of the elements of robbery were undoubtedly explained to the jury in jury instructions," id. at 31, and he had "seen at least three informations." Id.

The reporter's transcript of the 1981 hearing reflects very specific questioning at the time Smith entered his guilty plea. The deputy district attorney questioned Smith on the record as to each factual situation underlying the various robbery counts. For example:

MR. NEIDORF: Having all of these rights and consequences in mind, as to

Count I alleging robbery on July 7, 1980, the victim being

John Gioviannoni Mr. Smith, how do you plead to that count,

guilty or not guilty?

DEFENDANT SMITH: Guilty.

MR. NEIDORF: Do you admit that you used a firearm in the commission of

that offense?

DEFENDANT SMITH: Yes.

MR. NEIDORF: And do you admit that the value of the property taken was

over $25,000?

DEFENDANT SMITH: Do I admit?

MR. NEIDORF: Do you admit or deny it?

DEFENDANT SMITH: I admit it.

Excerpt of Record ("E.R.") at 34-35. The deputy district attorney followed this procedure for each of the remaining four counts of robbery. This colloquy establishes both a factual basis for the pleas and gave Smith notice of the elements of the robbery offenses to which he pleaded guilty.

The 1981 hearing transcript also shows that the deputy district attorney asked whether Smith had "discussed the charges with your attorney [ ]." Smith replied, "yes." Id. at 28. The deputy district attorney asked if Smith had "spoken to [his] attorney about this case?" Smith replied, "yes." Id. at 33. The deputy district attorney asked, "Have you discussed your possible defenses to these charges?" Smith replied, "yes." Id.

We conclude that the district court did not err in finding that Smith was aware of the nature of the 1981 robbery charge when he entered his guilty plea. The record supports the conclusion that Smith's guilty plea to the robbery charge was intelligently made. "He was advised by competent counsel, he was made aware of the nature of the charge against him, and there was nothing to indicate that he was incompetent or otherwise not in control of his mental faculties...." Brady, 397 U.S. at 756.

AFFIRMED.