United States v. Gunn ( 1994 )

USCA1 Opinion

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT


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        No. 93-2060

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                    BRUCE W. GUNN,

                                Defendant, Appellant.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. A. David Mazzone, U.S. District Judge]
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                                        Before

                                Cyr, Boudin and Stahl,
                                   Circuit Judges.
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            Stephen Neyman on brief for appellant.
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            Donald K.  Stern, United States  Attorney, and  Michael J. Pelgro,
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        Assistant United States Attorney, on brief for appellee.


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                                  September 13, 1994
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                 Per  Curiam.  Appellant Bruce W. Gunn was convicted by a
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            jury in February 1993 of knowingly possessing a firearm after

            having  been convicted of a felony, in violation of 18 U.S.C.

              922(g)(1).  The sentencing court found that, based upon his

            prior  criminal  record,  Gunn  was subject  to  an  enhanced

            sentence  under  the Armed  Career  Criminal  Act [ACCA],  18

            U.S.C.    924(e).  He was  sentenced to a term  of 235 months

            imprisonment  and a  60 month  period of  supervised release.

            Gunn appeals only the enhancement of his sentence pursuant to

            the ACCA.  

                                          I

                 At  appellant's  sentencing   hearing,  the   government

            provided  evidence  that Gunn  had  been  convicted in  Salem

            District  Court of  three previous  offenses which  served as

            predicates for the  application of  the ACCA.   Gunn did  not

            dispute the  existence of  these convictions but  argued that

            they were constitutionally invalid because they stemmed  from

            guilty  pleas or  admissions to  sufficient facts  which were

            entered without Gunn's having  proper legal representation.  

            He also claimed  that his convictions arose from  guilty plea

            procedures in  which the judicial colloquies  were defective.

            After a hearing on  Gunn's claims, the court found  that Gunn

            had  been  represented by  counsel  in  regard to  all  three

            predicate convictions.  The court further found that Gunn had

            not satisfied his  burden of proving that the colloquies were



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            constitutionally defective.  Gunn challenges both findings on

            appeal.

                                          II

                 Gunn claims  that his prior convictions  cannot serve as

            predicates for an enhancement of his sentence pursuant to the

            ACCA  because they  resulted from  constitutionally defective

            colloquies.  However,  the Supreme Court, in Custis v. United
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            States, 114  S.Ct. 1732 (1994), held  that federal defendants
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            cannot collaterally challenge  the constitutionality of their

            prior  state court  convictions  used in  sentencing under   

            924(e)  unless that challenge involves a complete deprivation

            of counsel.  Custis,  therefore, forecloses Gunn's claim that
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            his  convictions should  not be  used for  sentencing because

            they involved constitutionally defective colloquies.1

                                         III

                 Gunn also  claims that the record  before the sentencing

            court  was   inadequate  to   establish  that  he   had  been

            represented by counsel at all stages of the state proceedings

            which resulted  in his  three prior convictions,  and, hence,

            that these convictions could  not serve as predicate offenses

            under the  ACCA.   However, after receiving  both documentary

            and  testimonial  evidence, the  sentencing  court determined

            that  the government  had  met its  burden  of showing  by  a


                                
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            1.  Custis,  in effect,  overrules  this court's  holding  in
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            United States v. Paleo, 967 F.2d 7, 11-13 (1st Cir. 1992).
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            preponderance of  the evidence, United States  v. Wright, 873
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            F.2d  437, 441 (1st  Cir. 1989); United  States v. Wilkinson,
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            926  F.2d  22, 28  (1st Cir.),  cert.  denied, 501  U.S. 1211
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            (1991), that Gunn had been represented by counsel.  We review

            this factual finding of the sentencing court for clear error.

            See United States v. Figaro, 935 F.2d 4, 8 (1st Cir. 1991).  
            ___ _____________    ______

                 At  the sentencing  hearing,  the  government  presented

            records of the Salem District Court which contained notations

            that Gunn had  been appointed  counsel in each  of the  cases

            which resulted  in ACCA  predicate convictions.   The records

            did  not  indicate that  counsel  had  actually been  present

            during  all stages of the proceedings in each case.  However,

            this court has previously  indicated that "a sentencing court

            may permissibly infer from the  record of the conviction that

            the conviction  was not obtained  unconstitutionally provided

            the  record  contains no  reason  to  believe the  contrary."

            Wilkinson,  926 F.2d at 28.   In the  instant case, testimony
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            was provided by the  Clerk Magistrate for the Salem  District

            Court that court records ordinarily do not contain a separate

            notation each time court-appointed  counsel appears in court.

            The Clerk Magistrate,  who had been employed  as an assistant

            clerk  at the  time  of the  challenged convictions,  further

            testified that,  according  to court  practice,  counsel  was

            required to be in attendance at all stages of the proceedings

            and that  state judges  would not  allow a  case to  be heard



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            without the presence  of counsel.   Since  Gunn presented  no

            evidence to contradict this  testimony, the finding that Gunn

            was  represented  by  counsel  at all  stages  of  the  state

            proceedings in each of  his ACCA predicate convictions cannot

            be characterized as clear error.

                 Affirmed.
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