Unpublished Disposition, 935 F.2d 276 (9th Cir. 1991)

MEMORANDUM^** 

Frederick L. Menefee appeals his sentence, imposed under the United States Sentencing Guidelines (Guidelines or U.S.S.G.), following his conviction on a guilty plea, for three counts of unarmed bank robbery. Menefee claims the district court erred by sentencing him as a career offender pursuant to U.S.S.G. Sec. 4B1.1 without holding an evidentiary hearing to establish the legality of his prior convictions.¹  We have jurisdiction under 28 U.S.C. § 1291, and we vacate the sentence and remand for an evidentiary hearing.

We review de novo whether a prior conviction is counted under the Guidelines, "while factual matters concerning the prior conviction are reviewed for clear error." United States v. Newman, 912 F.2d 1119, 1123 (9th Cir. 1990). The government must prove by a preponderance of evidence any fact that the sentencing court would use to increase the defendant's criminal history score. Id., 912 F.2d at 1122. " [W]here the Government seeks the inclusion of [a] prior conviction in a criminal history score calculation, its proof of the fact of conviction ... satisf [ies] its initial burden. Then ... the defendant ... ha [s] the burden to establish the constitutional invalidity of the prior conviction." Id. A defendant's sworn declaration that he was not apprised of the constitutional rights he waived by pleading guilty, in combination with a silent record below, shifts to the government "the burden of proving [at an evidentiary hearing] that the [earlier] plea was voluntary and intelligent, in accordance with federal standards." United States v. Goodheim, 651 F.2d 1294, 1299 (9th Cir. 1981) (Goodheim I) (citing United States v. Pricepaul, 540 F.2d 417, 423 (9th Cir. 1976)); United States v. Carroll, No. 90-10179, 5825, 5830 (9th Cir. May 9, 1991). When the record is silent, the district court may hear evidence of the trial court's plea-taking practice, see, e.g., United States v. Goodheim, 686 F.2d 776, 777-78 (9th Cir. 1982) (Goodheim II), or of counsel's practice in advising clients, see United States v. Freed, 703 F.2d 394, 395 (9th Cir.), cert. denied, 464 U.S. 839 (1983).

Menefee assailed the constitutionality of his prior convictions in a memorandum entitled "Defendant's Position With Respect to Sentencing Factors." In addition, he submitted an affidavit stating that, to the best of his recollection, neither the federal judge who accepted his guilty plea in 1971 nor the state judge who accepted his plea in 1975 advised him of his constitutional rights or discussed with him the elements of the offense to which he pleaded guilty, or the possibility that the plea would expose him to enhanced penalties for later criminal conduct. He also submitted evidence that the plea hearing transcripts had been destroyed as a matter of routine.

The district court declined to credit Menefee's affidavit and thus place on the government the burden of "prov [ing] the unproveable" (RT 3/26/1990 at 21). Instead, it found that because Boykin v. Alabama, 395 U.S. 238 (1969), and In Re Tahl, 1 Cal. 3d 122 (1969), had established the constitutional rules governing plea hearings in federal and state proceedings by 1969, there was no reason to believe that the judges who convicted Menefee had not followed these rules in 1971 and 1975.

We note that, without any records from the 1971 or 1975 plea hearings, Menefee was no less hard pressed to prove his claim than the government was to rebut it. Under these circumstances a hearing is required where proof can be presented as to the validity of the prior convictions. See Goodheim I, 651 F.2d at 1299; Goodheim II, 686 F.2d at 777-78; Freed, 703 F.2d at 395. Therefore, we vacate the sentence and remand the case to the district court for an evidentiary hearing. See Carroll, No. 90-10179, slip op. at 5830; Goodheim I, 651 F.2d at 1299.

VACATED AND REMANDED.