United States of America, Plaintiff-appellee, v. Ronald Daryl Mcdonald, Defendant-appellant, 103 F.3d 142 (9th Cir. 1996)

MEMORANDUM^** 

Ronald Daryl McDonald, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion to vacate his conviction and sentence. McDonald pleaded guilty to possessing a firearm after having been previously convicted of a felony (18 U.S.C. § 922(g) (1). He contends that: (1) his section 922(g) (1) conviction should be vacated because it is predicated upon a prior state conviction that was first reduced to a misdemeanor and subsequently expunged; (2) the sentencing court engaged in impermissible double counting by using the same prior conviction to both enhance his offense level and to calculate his criminal history; (3) trial counsel was ineffective; and (4) his criminal conviction violated the Double Jeopardy Clause because of the prior administrative forfeiture of his property. We have jurisdiction pursuant to 28 U.S.C. § 2255. We review de novo, Sanchez v. United States, 50 F.3d 1448, 1451-52 (9th Cir. 1995), and we affirm.

McDonald contends that his conviction should be vacated because it was based on a prior 1985 conviction that was reduced to a misdemeanor and then subsequently expunged. McDonald has waived this claim by pleading guilty. See United States v. Kelley, 62 F.3d 1215, 1216 (9th Cir. 1995) (per curiam) (by pleading guilty defendant admitted all elements of section 922(g) (1) including that fact that he was a convicted felon).

McDonald also claims his counsel was ineffective for failing to challenge the prior conviction in district court. The record shows that his section 922 conviction was predicated upon a 1983 conviction, not the 1985 conviction. McDonald does not challenge the validity of his 1983 state conviction. Accordingly, McDonald cannot show that counsel's advice to plead guilty without challenging the validity of the underlying prior conviction was outside the "range of competence demanded of attorneys in criminal cases." See Tollett v. Henderson, 411 U.S. 258, 267-68 (1973).

McDonald next contends that the use of his 1985 conviction to calculate both his criminal history and to enhance his base offense level constituted impermissible double counting. McDonald has waived this allegation of non-constitutional sentencing error by failing to raise it in district court or on direct appeal. See United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1994).

To the extent McDonald alleges his counsel was ineffective for failing to raise the "double counting" issue at sentencing, his claim fails. The applicable Sentencing Guidelines permit this kind of "double use." See U.S.S.G. § 2K2.1, Application Note 15; see also United States v. Schomburg, 929 F.2d 505 (9th Cir. 1991) (in sentencing defendant for failure to appear, same prior conviction may be used to calculate base offense level and to increase criminal history score). Accordingly, counsel was not ineffective for failing to raise the issue at sentencing. See Strickland v. Washington, 466 U.S. 668, 688 (1984).¹ 

Finally, McDonald contends that his conviction violated the Double Jeopardy Clause of the Fifth Amendment because of the prior administrative forfeiture of his property. This contention lacks merit. See United States v. Ursery, 116 S. Ct. 2135 (1996) (holding that civil forfeitures do not constitute "punishment" for purposes of the Double Jeopardy Clause).

AFFIRMED.