United States v. Larry Roscoe McGlocklin ( 1993 )

RALPH B. GUY, Jr., Circuit Judge.

We voted to consider this case en banc to decide whether a defendant may challenge at sentencing a prior state court conviction not previously ruled invalid which would result in a longer sentence if included within the sentencing guidelines calculus.¹ We conclude that a narrow window of challenge to prior convictions is available, and in this opinion we set forth the considerations that should inform a sentencing court’s disposition of such a challenge. As to defendant McGlock-lin’s sentence, we conclude that on the evidence presented his prior convictions were valid, and we remand for resentencing.

I.

McGlocklin pleaded guilty to two counts of bank robbery in the United States District Court for the Middle District of Tennessee. Defendant had 17 prior state convictions. Several of these prior convictions were not included in the calculation of defendant’s sentence because some were outside of the time period allowed, U.S.S.G. § 4A1.2(e), and some resulted from proceedings where defendant was not represented by counsel. However, two of his prior Tennessee state convictions that were counted were for crimes of violence: a conviction for bank robbery pursuant to a guilty plea and a conviction for second-degree burglary pursuant to a nolo contendere plea. The presen-tenee report placed defendant in the career offender category due to these two prior convictions. Defendant objected to the classification as a career offender, arguing that his predicate state convictions were invalid because the pleas were not taken in compliance with the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and State v. Mackey, 553 S.W.2d 337 (Tenn.1977). The district court sustained MeGlocklin’s objections and did not sentence him under the career offender classification. Instead of a sentencing range of 168-210 months as calculated in the presen-tence report, the district court computed a range of 77-96 months, sentencing McGlock-lin to the maximum 96 months. The government appealed.

II.

Under the United States Sentencing Guidelines, prior convictions are used to compute a criminal history score or to place a defendant in the category of a career offender. A defendant’s criminal history category is plotted against the offense level for the crime charged to yield the applicable sentencing range. Section 4A1.1 of the guidelines provides the method for calculating a defendant’s criminal history score, while section 4B1.1 defines a career offender.² The definitions and instructions for computing a defendant’s criminal history contained in section 4A1.2 apply to calculations under both sections 4A1.1 and 4B1.1.

Much of the argument in this case revolves around the 1990 amendments to the sentencing guidelines, specifically to Application Note 6 and the background note of section 4A1.2. The earlier version of Application Note 6 read in full:

Invalid Convictions. Sentences resulting from convictions that have been reversed or vacated because of errors of law, or because of subsequently-discovered evidence exonerating the defendant, are not to be counted. Any other sentence resulting in a valid conviction is to be counted in the criminal history score. Convictions which the defendant shows to have been constitutionally invalid may not be counted in the criminal history score. Also, if to count an uncounseled misdemeanor conviction would result in the imposition of a sentence of imprisonment under circumstances that would violate the United States Constitution, then such conviction shall not be counted in the criminal history score. Nonetheless, any conviction that is not counted in the criminal history score may be considered pursuant to § 4A1.3 if it provides reliable evidence of past criminal activity.

U.S.S.G. § 4A1.2, comment, (n. 6) (1989) (emphasis added). Every court that addressed the issue, including this one, concluded that this application note allowed a district court to entertain challenges to presumptively valid (not previously invalidated) state convictions at sentencing. United States v. Guthrie, 931 F.2d 564, 571 (9th Cir.1991); United States v. Bradley, 922 F.2d 1290, 1297 (6th Cir.1991); United States v. Unger, 915 F.2d 759, 761 (1st Cir.1990), cert. denied, 498 U.S. 1104, 111 S.Ct. 1005, 112 L.Ed.2d 1088 (1991); United States v. Edwards, 911 F.2d 1031, 1035 (5th Cir.1990); United States v. Wildes, 910 F.2d 1484, 1485 (7th Cir.1990); United States v. Jones, 907 F.2d 456, 463 (4th Cir.1990), cert. denied, 498 U.S. 1116, 111 S.Ct. 1028, 112 L.Ed.2d 1109 (1991); United States v. Dickens, 879 F.2d 410, 411 (8th Cir.1989); see also United States v. Cornog, 945 F.2d 1504, 1511 (11th Cir.1991) (collecting eases).

Effective November 1, 1990, Application Note 6 was amended to read:

Reversed, Vacated, or Invalidated Convictions. Sentences resulting from convictions that have been reversed or vacated because of errors of law, or because of subsequently-discovered evidence exonerating the defendant, are not to be counted. Also, sentences resulting from convictions that a defendant shows to have been previously ruled constitutionally invalid are not to be counted. Nonetheless, the criminal conduct underlying any conviction that is not counted in the criminal history score may be considered pursuant to § 4A1.3 (Adequacy of Criminal History Category).

U.S.S.G. § 4A1.2, comment, (n. 6) (1990) (emphasis added). Thus, the current version of Application Note 6 to section 4A1.2 makes clear that a district court is not to count convictions which have been previously ruled invalid. The application note does not address whether a conviction that has not been previously ruled invalid can be challenged at sentencing. However, when the Sentencing Commission amended Application Note 6 to section 4A1.2, it added a background note to that same section which 13 reads: “The Commission leaves for court determination the issue of whether a defendant may collaterally attack at sentencing a prior conviction.” U.S.S.G. § 4A1.2, comment, (backg’d). The Sentencing Commission explained that the amendment “clarifies the circumstances under which prior sentences are excluded from the criminal history score.” U.S.S.GApp.C, amend. 353.

III.

The Supreme Court has not addressed the impact of these amendments,³ but we are not the first circuit to consider the issue. The Second, Third, and Fifth Circuits⁴ have read the background note to recognize the authority of federal district courts to entertain first-instance collateral attacks on presumptively valid prior state convictions at sentencing. United States v. Brown, 991 F.2d 1162 (3d Cir.1993); United States v. Canales, 960 F.2d 1311, 1315 (5th Cir.1992); United States v. Jakobetz, 955 F.2d 786, 805 (2d Cir.), cert. denied, — U.S. —, 113 S.Ct. 104, 121 L.Ed.2d 63 (1992). In Jakobetz, the court summarized the effect of these guidelines:

While defendants may always present the sentencing court with evidence that another court has ruled their prior convictions invalid and hence unsuitable for consideration as part of the criminal history score at sentencing, the court also retains discretion to determine whether a defendant may mount an initial challenge to the validity of such convictions.

Jakobetz., 955 F.2d at 805.

The First, Fourth, Eighth, and Eleventh Circuits have concluded that sentencing courts are required to entertain at least some kinds of attacks on prior convictions and that the authorization for such examinations comes not from the sentencing guidelines but from the Constitution. United States v. Isaacs, No. 92-2068, 1993 WL 210537, 1993 U.S.App. LEXIS 14892 (1st Cir. June 22, 1993); United States v. Byrd, 995 F.2d 536 (4th Cir.1993); United States v. Elliott, 992 F.2d 853 (8th Cir.1993); United States v. Roman, 989 F.2d 1117 (11th Cir.1993) (en banc). In Roman, the first case to take this approach, the defendant objected to the use of a prior conviction because it was based on an unconstitutional guilty plea. Defendant alleged that the plea was not made knowingly and intelligently because he does not speak English and there was no interpreter at the plea hearing. The only proof offered to support his claim was a summary of the state proceedings. After concluding that “[n]o language now in Note 6 authorizes collateral review,” id. at 1119, the court explained that the background comment “recognizes that — apart from the sentencing guidelines — the Constitution bars federal courts from using certain kinds of convictions at sentencing.” Id. The court concluded that the Constitution requires a sentencing court to review a prior conviction only when a defendant “sufficiently asserts facts that show that an earlier conviction is ‘presumptively void’_” Id. at 1120. Explaining that the number of convictions that could be termed “presumptively void” is small, the court held that the evidence offered to support defendant’s challenge was insufficient to warrant a hearing.

The First Circuit expressly followed the approach adopted by the Roman court. Isaacs, 1993 WL 210537, 1993 U.S.App. LEXIS 14892. In Isaacs, the court examined the question of what kinds of convictions are “presumptively void,” concluding that the test “is whether a constitutional violation can be found on the face of the prior conviction, without further factual investigation.” Id. at *6,1993 U.S.App. LEXIS 14892, at *19. The court stated that “unless a defendant’s claim is that a prior conviction is unconstitutional on its face, the sentencing court has no constitutional authority to review that conviction before using it to enhance a defendant’s Criminal History Category.” Id. at *6, 1993 U.S.App. LEXIS 14892, at *20. The court then concluded that because Isaacs’ claim of ineffective assistance of counsel required the district court to conduct a factual investigation, the conviction did not meet the “presumptively void” test. Id.

In Elliott, the defendant challenged the use of several prior convictions, “alleging that the prior convictions were constitutionally invalid because the state courts failed to conduct competency hearings before accepting a guilty plea or empanelling a jury, thus violating Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).” Elliott, 992 F.2d at 854. Elliott argued that applying the guidelines in such a way as to prohibit him from collaterally attacking these prior convictions was unconstitutional. The court first determined that interpreting the new amendments to prohibit collateral attacks at sentencing was consistent with the Sentencing Commission’s statutory mandate and that the courts must follow this approach “except when the Constitution requires that a collateral attack at sentencing be permitted.” Id. at 856. Turning to the constitutional question, the Eighth Circuit concluded that it was not unconstitutional to apply Application Note 6 to bar the defendant’s challenge. The court emphasized that the defendant had “not argued that the collateral attack he seeks is necessary to prevent the ‘erosion’ of Pate v. Robinson, nor has he shown that his sentence was based upon ‘misinformation of constitutional magnitude.’ ” Id. at 857.

The Fourth Circuit, the most recent circuit to rule on this issue, has articulated a limited category of constitutional challenges that a district court is obligated to entertain. Byrd, 995 F.2d 536 (discussed further in section IV infra).

The only court to conclude that district courts are completely prohibited from considering challenges to prior convictions that have not been previously ruled invalid was the United States District Court for the District of Oregon. United States v. Avery, 773 F.Supp. 1400 (D.Or.1991). After an extensive review of the cases under the old version of Application Note 6, the court concluded that the new version precluded it from entertaining the defendant’s challenge. In Avery, the court held that if the conviction sought to be excluded from the criminal history score had not been previously determined to be constitutionally invalid, then “the appropriate procedure is for the defendant to file a petition for a correction of this sentence pursuant to § 2255 following a determination that the conviction was unconstitutionally obtained.” Id. at 1408.

The Ninth Circuit subsequently addressed this issue in United States v. Vea-Gonzales, 986 F.2d 321 (9th Cir.1993). In VearGon-zales, the United States District Court for the District of Oregon, relying on its opinion in Avery, had denied defendant’s motion for a hearing to collaterally attack a prior federal conviction on the grounds of ineffective assistance of counsel. Id. at 325. The Ninth Circuit vacated the defendant’s sentence and remanded, finding that the district court should have entertained defendant’s challenge because “the Constitution requires that defendants be given the opportunity to collaterally attack prior convictions which will be used against them at sentencing.” Id. at 327.⁵ Although the Ninth Circuit has joined those circuits that allow constitutional challenges to prior convictions at sentencing, it has given defendants an unfettered right to raise such challenges to presumptively valid prior convictions.⁶

Under the current version of the sentencing guidelines, a district court is required to exclude from the criminal history score any conviction that the defendant shows to have been previously ruled invalid. In addition, we conclude the district court has the discretion to exclude from consideration other challenged convictions under certain limited circumstances.⁷ While we recognize inherent limits on the power to entertain collateral attacks, we are convinced that a challenge to a conviction for purposes of excluding it from consideration at sentencing is not equivalent to a full-blown collateral attack. In a full collateral attack, if the defendant is successful, the defendant’s conviction is vacated for all purposes.

The government and Judge Ryan, in his dissent, maintain that allowing any collateral challenges at sentencing would violate the Full Faith and Credit Clause and would offend traditional notions of comity. We agree with the Ninth Circuit that “doctrines such as Full Faith and Credit, collateral estoppel and res judicata, and related jurisdictional principles based on comity concerns, are inapplicable in this context, where the issue is the role of prior state convictions in a federal sentencing scheme.” Guthrie, 931 F.2d at 571; see also Isaacs, 1993 WL 210537, *8, 1993 U.S.App. LEXIS 14892, *13 n. 6 (“ ‘[Cjomity’ considerations are absent (or less weighty) ... when a federal court refuses to rely on a state conviction as a basis for imposing a federal sentence for a federal crime.”) (quoting United States v. Paleo, 967 F.2d 7, 12 (1st Cir.1992)). A defendant’s successful challenge to a prior conviction at a federal sentencing hearing involving a subsequent federal crime would result only in precluding the use of that conviction in determining the appropriate sentence for the crime at issue. The state conviction is not invalidated. Any determination made by the sentencing court regarding the use of that prior conviction for sentencing purposes would have no preclusive effect on any other court that may in the future have reason to consider that conviction’s validity in an unrelated proceeding. United States v. Mims, 928 F.2d 310, 312 (9th Cir.1991); see also United States v. Brown, 991 F.2d at 1167 n. 3 (because state in which prior conviction was obtained is not a party to federal criminal proceedings, “state will not be bound by the” district court’s determination of the constitutionality of the prior conviction).

While we do not believe that the Full Faith and Credit Clause is implicated, we would point out that many states allow collateral attacks to be made at sentencing on prior state convictions. See, e.g., D.C.Code Ann. § 23 — 111(c); Parke v. Raley, — U.S. —, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992) (discussing with approval Kentucky’s procedure for allowing collateral attacks at sentencing). Inasmuch as the Full Faith and Credit Clause only requires that we give such deference to a state judgment as the state would give that judgment, the approach we adopt today is not violative of Full Faith and Credit Clause principles. Judge Ryan’s suggestion that states that allow defendants to challenge prior convictions for the first time at sentencing only allow challenges to convictions from their own state is not correct. For example, in Raley, the Supreme Court approved Kentucky’s procedure for allowing such challenges without even mentioning any full faith and credit concerns. While it is unclear if Raley’s prior convictions were from the State of Kentucky, the Court explored the genesis of Kentucky’s procedure, including Commonwealth v. Gadd, 665 S.W.2d 915 (Ky.1984), which had involved a challenge to a prior Ohio conviction. In Raley, the Supreme Court rioted that in Gadd the Kentucky Supreme Court had read Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), as requiring courts to permit attacks on the validity of prior convictions. Raley, — U.S. at —, 113 S.Ct. at 520. The Court held that Kentucky’s procedure of placing the burden on the defendant of showing the unconstitutionality of the prior conviction “easily passes constitutional muster.” Id. — U.S. at —, 113 S.Ct. at 522. By implication, the Supreme Court’s decision in, Raley, approving of a particular procedure for challenges, approves of allowing challenges to prior convictions as not violative of the Full Faith and Credit Clause or statute.

A district “court, in determining the particular sentence to be imposed, shall consider— (1) the nature and circumstances of the offense and the history and characteristics of the defendant....” 18 U.S.C. § 3553(a). A defendant’s “history” includes the defendant’s criminal history. See United States v. Byrd, 984 F.2d 251, 252 (8th Cir.1993). A sentencing judge is required to base the determination of the proper sentence on reliable information. Conversely, a sentencing judge must disregard evidence which is untrustworthy or unreliable. Thus, a sentencing judge must have some discretion to entertain a defendant’s claim that a prior conviction should not be counted. The Supreme Court has held that a sentence cannot be based on “misinformation of a constitutional magnitude.” United States v. fucker, 404 U.S. 443, 447, 92 S.Ct. 589, 592, 30 L.Ed.2d 592 (1972). In Tucker, the defendant’s prior convictions were unconstitutional under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The Court concluded that “ ‘[t]o permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense ... is to erode the principle of that case.’ ” Tucker, 404 U.S. at 443, 92 S.Ct. at 590 (citing Burgett v. Texas, 389 U.S. 109, 114, 88 S.Ct. 258, 262, 19 L.Ed.2d 319 (1967)). In Burgett, the Court concluded that to allow the admission of a prior conviction obtained in violation of Gideon meant that “petitioner’s right to counsel, a ‘specific federal right,’ is being denied anew.” Burgett, 389 U.S. at 116, 88 S.Ct. at 262.

Completely denying a district court the discretion to consider a defendant’s challenge to a prior conviction, regardless of the underpinnings of such a challenge, would be at odds with the Court’s decisions in Burgett and Tucker. The government, recognizing that under Burgett and Tucker at least some challenges must be permitted, proposes to limit the challenges allowed to only claims that a prior conviction is constitutionally infirm under Gideon. But there are other equally egregious situations where a “federal right is being denied anew.” The Supreme Court, in discussing the application of the harmless error rule, recognized there are some basic protections in the trial process— the right to counsel, freedom from the introduction of coerced confessions, and resolution by an unbiased adjudicator — that must be afforded a criminal defendant. Rose v. Clark, 478 U.S. 570, 577, 106 S.Ct. 3101, 3105-06, 92 L.Ed.2d 460 (1986). “Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence.... ” Id. at 577-78, 106 S.Ct. at 3106 (emphasis added).

Nowhere has the Supreme Court indicated that the rule in Burgett and Tucker is limited to only uncounseled felony convictions viola-tive of Gideon. Indeed, the language in Bur-gett, that a “specific federal right” would be “denied anew” if a conviction obtained in violation of Gideon were used against a defendant to enhance punishment for another offense, was explicitly taken from Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). In Spencer, the defendant argued that he was prejudiced in the guilt determination phase of the trial by the introduction of evidence of prior crimes. In finding the procedure employed constitutional, the Court stated: “In the procedures before us ... no specific federal right — such as that dealing with confessions — is involved-” Id. at 565, 87 S.Ct. at 654. Thus, the Court in Burgett, implicitly at least, was referring to other contexts where the use of a prior conviction might result in “denying anew” a “specific federal right.” Burgett, 389 U.S. at 116, 88 S.Ct. at 262. Additionally, in 1983 the Supreme Court noted that a “sentence must be set aside if the trial court relied at least in part on ‘misinformation of constitutional magnitude’ such as prior uneounseled convictions_” Zant v. Stephens, 462 U.S. 862, 887 n. 23, 103 S.Ct. 2733, 2748 n. 23, 77 L.Ed.2d 235 (1983). The phrase “such as” implies that the court does not consider convictions violative of Gideon to be the only types of prior convictions that must be excluded for sentencing enhancement purposes.

While Judge Ryan characterizes a defendant’s challenge to a prior conviction at sentencing as an attempt to invalidate that conviction, such is not our view. We emphasize that the “collateral attack” we sanction is not one which would result in a prior conviction being invalidated. Rather, we intend that the matter of prior convictions be handled as the trial judge handles all other contested matters at sentencing. The judge makes a determination as to whether the challenged evidence is trustworthy enough to be used to enhance a defendant’s sentence. That is as far as it goes.

The government contends that allowing challenges at sentencing will cause sentencing proceedings to take on a life of their own, consuming judicial resources and prolonging the sentencing process. We disagree. First, historically, before there were guidelines and under the old version as well as the new version of the guidelines, such attacks were and are regularly entertained, and the district courts seem to handle the task without an inordinate consumption of judicial resources or delays in sentencing. Second, we believe that the procedures we establish will not result in an unmanageable enlargement of the sentencing process. See infra part IV. For example, we are not requiring that anytime a defendant raises a challenge to a previous conviction a district court must hold an evidentiary hearing. Third, the approach urged by Judge Ryan would be an extremely complicated method for resolving what may be a fairly simple challenge. A defendant first would be sentenced by the federal court counting the prior conviction in the criminal history score. The defendant then would need to exhaust any state post-conviction remedies. Then, once the exhaustion requirements were fulfilled, presuming the defendant did not prevail, defendant would then proceed to file a § 2254 petition.⁸ If successful at any stage, the defendant finally would need to file a § 2255 motion to correct the federal sentence. This approach would cause a new wave of habeas petitions and “runs counter to basic concerns for judicial economy.” United States v. Jones, 977 F.2d 105, 110 (4th Cir.1992), cert. denied, — U.S. —, 113 S.Ct. 1335, 122 L.Ed.2d 719 (1993). While under this approach a minimum amount of time is spent at the sentencing hearing, it could be years before a defendant’s challenge is out of the courts.

IV.

Having concluded that under certain limited circumstances it is within a sentencing court’s discretion to entertain a challenge to the inclusion of a prior state conviction in a criminal history score, we now turn to the considerations that should inform a sentencing court in disposing of such challenges. Certain difficulties exist in allowing an attack at the sentencing hearing, including “the absence of the sentencing state as a party, possible staleness of the claims, the inadequacy or unavailability of state court records and witnesses from ‘far-flung jurisdictions,’ and the danger of ‘unduly protracted or delayed sentencing.’” Jones, 977 F.2d at 109 (citation omitted). It must be remembered that, by definition, the conviction challenged is one that has not been previously adjudicated invalid.

Ordinarily that will be so because of a failure by the federal defendant to have attempted the attack, or because of his failure to have succeeded if he made the attempt. And ordinarily — though not necessarily — a failure to have made the attempt will bespeak a recognized lack of basis for doing so, thus raising in question the basis now claimed for making the attempt in an even more attenuated collateral setting.

Id.

To challenge the proposed use of a prior conviction for sentencing purposes, the defendant must first comply with the procedural requirements for objecting to the conviction’s inclusion in the criminal history score. The defendant also must state specifically the grounds claimed for the prior conviction’s constitutional invalidity in his initial objection and “the anticipated means by which proof of invalidity will be attempted — whether by documentary evidence, including state court records, testimonial evidence, or combination — with an estimate of the process and the time needed to obtain the required evidence.” Id. at 110. See also Canales, 960 F.2d at 1316 (the district court is free to consider a number of factors including scope of inquiry, whether issue is contested, and if invalidity is apparent from record). An example of a challenge that a court should entertain would be a challenge to a previously unchallenged felony conviction where the defendant was not represented by counsel, counsel was not validly waived, and court records or transcripts are available that document the facts. As the Supreme Court recently has made clear, “even when a collateral attack on a final conviction rests on constitutional grounds, the presumption of regularity that attaches to final judgments makes it appropriate to assign a proof burden to the defendant.” Raley, — U.S. at —, 113 S.Ct. at 524; see also United States v. French, 974 F.2d 687, 701 (6th Cir.1992), cert./ denied, — U.S. —, 113 S.Ct. 1012, 122 L.Ed.2d 160 (1993).

In addition to the types of proof that will be offered, the court also should consider whether the defendant has available an alternative method for attacking the prior conviction either through state post-conviction remedies or federal habeas relief. While this factor should not be dispositive of whether a sentencing court should entertain such a challenge, the availability of an alternative method should play a significant role in the court’s decision. “The fact that traditional habeas or post-conviction remedies have been — and especially if they remain — available to the defendant, obviously bears heavily — indeed, could be decisive — on whether to entertain, then to uphold, a first-instance challenge at sentencing.” Jones, 977 F.2d at 110.

The Fourth Circuit, which first articulated the factors to be considered in the exercise of the district court’s discretion under the prior version of the guidelines, see Jones, 977 F.2d 105, has recently formulated a test for challenges to prior convictions under the current guidelines. Under the Fourth Circuit’s current approach, “district courts are obliged to hear constitutional challenges to predicate state convictions in federal sentencing proceedings only when prejudice can be presumed from the alleged constitutional violation, regardless of the facts of the particular case; and when the right asserted is so fundamental that its violation would undercut confidence in the guilt of the defendant.” Byrd, 995 F.2d at 540 (quoting United States v. Custis, 988 F.2d 1355, 1362 (4th Cir.1993) (decided in the context of statutory sentencing under 18 U.S.C. § 924(e))). While Byrd held that the opinion in Jones was not controlling because of the change in the language of the sentencing guidelines, the approach it has adopted appears similar to the approach in Jones depending upon how one interprets “when prejudice can be presumed” and “when the right asserted is so fundamental that its violation would undercut confidence in the guilt of the defendant.”

We do not view the rule espoused here to be significantly different from that put forth in Byrd. We have spoken of the district court’s duty at sentencing, where the judge determines both factual and legal issues, to monitor for trustworthiness. We see little difference, if any, between that formulation and Byrd's dictate that prior convictions should not be utilized when they appear to result from a “violation [that] would undercut confidence in the guilt of the defendant.”

y.

Having determined that a district court has limited discretion to exclude certain prior state convictions, we turn to the facts of McGlocklin’s case.⁹ The district court ruled that defendant was not subject to career offender enhancement under the United States Sentencing Guidelines because his two predicate state felony convictions were invalid. We find that, while it was within the district court’s discretion to entertain defendant’s challenge, the district court employed the wrong legal standard in reviewing his convictions. Under the correct legal standard, the defendant’s convictions are valid.¹⁰

Defendant had several prior convictions, but we are concerned with only two — the two that resulted in the presentence report classifying him as a career offender. The first of those two convictions was based upon defendant’s guilty plea to bank robbery in the Criminal Court of Davidson County, Tennessee, on May 25,1985. The second was based on defendant’s plea of nolo contendere to second-degree burglary in the Criminal Court of Cheatham County, Tennessee, on July 12, 1985. MeGlocklin argued that these two convictions were invalid because the pleas were not taken in compliance with Tennessee law under State v. Mackey, 553 S.W.2d 337 (Tenn.1977), or with the requirements of the Constitution as expressed in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The district court reviewed the transcripts of defendant’s state court plea proceedings and concluded that the convictions were invalid as a matter of state law under State v. Mackey¹¹ and invalid as a matter of federal law under Boykin v. Alabama.

In ruling that the convictions were invalid as a matter of state law, and thus could not form the basis for applying the career offender provision of section 4B1.1 or be included in the computation of the defendant’s criminal history category, the district court relied on United States v. Bradley, 922 F.2d 1290 (6th Cir.1991). In Bradley, the defendant challenged the inclusion of a prior conviction in his criminal history score on the same grounds MeGlocklin advances. A panel of this court held that the validity of the defendant’s guilty plea was governed by Tennessee law in effect at the time the defendant entered his plea, and, because the record did not indicate compliance with the requirements of Mackey, the panel remanded the case for resentencing at the lower criminal history category. Id. at 1297-98.

The sentencing guidelines make no reference to allowing a defendant to challenge a prior state conviction on the grounds that it is invalid ás a matter of state law. To the contrary, the sentencing guidelines make reference to only “constitutionally invalid” convictions. This approach is consistent with the existing law as it has developed in federal habeas corpus proceedings. Thus, to the extent that Bradley held that the validity of a prior state conviction challenged at a sentencing hearing is determined as a matter of state law, Bradley is overruled. When the inclusion of a prior state conviction in the criminal history score is challenged, the validity of that conviction must be determined solely as a matter of federal law.

Additionally, the Tennessee Supreme Court recognized that the origin of the procedures set forth in Mackey was in both constitutional requirements and the supervisory authority of the Tennessee Supreme Court. State v. Neal, 810 S.W.2d 131, 137 (Tenn.1991). The Tennessee Supreme Court further stated that omissions of state requirements, as opposed to constitutional requirements, may be reviewed only upon direct appeal and may not be the basis of post-conviction relief. Id. at 139. We therefore turn to the constitutional arguments urged by the defendant.

The district court seemed to conclude that, because the requirements of Mackey were not fulfilled, the plea was taken in violation of due process and thus was constitutionally invalid. However, “[t]he applicable standard for determining the validity of guilty pleas under due process was set forth in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).” Riggins v. McMackin, 935 F.2d 790, 795 (6th Cir.1991). A guilty plea acts as a waiver of several federal constitutional rights; therefore, in order to be valid, a guilty plea must be entered intelligently and voluntarily. Boykin, 395 U.S. at 242, 89 S.Ct. at 1711-12. Voluntariness is determined by considering all relevant circumstances surrounding the guilty plea. Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970). A plea may be involuntary if the defendant does not understand the nature of the constitutional rights he is waiving, or unintelligent if the defendant does not understand the charge against him. Henderson v. Morgan, 426 U.S. 637, 645 n. 13, 96 S.Ct. 2253, 2257 n. 13, 49 L.Ed.2d 108 (1976).

We find that defendant’s Cheatham County nolo contendere plea was valid under constitutional standards. The judge asked defendant if his lawyer had explained the charge against him and if he understood the charge. Defendant responded that the charge had been explained and that he understood it. A representation on the record that defense counsel has explained the charge is sufficient to show that the defendant had notice of the nature of the charge against him. Marshall v. Lonberger, 459 U.S. 422, 436, 103 S.Ct. 843, 851-52, 74 L.Ed.2d 646 (1983). The judge also asked defendant if his lawyer had told him the range of punishment for the crime. Defendant responded in the affirmative. We find that these exchanges, on the record, are sufficient to conclude that defendant was aware of the nature of the charge against him and the potential penalties he faced. Nowhere in •the record before this court does defendant state that he was actually unaware of any of this information or that his plea was not voluntary. We find the entire record of the plea proceedings in Cheatham County sufficient to show that defendant was aware of his constitutional rights and his plea was entered voluntarily and intelligently.

Defendant argues that his plea was invalid because the judge did not find a factual basis for his plea. The judge did not establish on the record the facts of the burglary for which defendant was charged. While it is advisable to conduct an on-the-record inquiry into the factual basis for a plea, the failure of a state trial judge to do so will not serve as a basis for habeas relief; similarly, such a failure will not serve as a basis for a collateral attack at sentencing. This circuit has long recognized that, absent special circumstances, “there is no constitutional requirement that a trial judge inquire into the factual basis of a plea.” Roddy v. Black, 516 F.2d 1380, 1385 (6th Cir.), cert. denied, 423 U.S. 917, 96 S.Ct. 226, 46 L.Ed.2d 147 (1975). “The defendant does not necessarily need to be told the nature of the offense and elements of the crime at the actual plea proceedings; a knowing and intelligent guilty plea may be entered on the basis of the receipt of this information, generally from defense counsel, before the plea proceedings.” Stano v. Dugger, 921 F.2d 1125, 1142 (11th Cir.), cert. denied, — U.S. —, 112 S.Ct. 116, 116 L.Ed.2d 85 (1991). Looking at the record of the plea proceedings as a whole, we find that the judge’s failure to establish the facts on the record did not prevent defendant from making a voluntary and intelligent plea.

Defendant also challenges his Davidson County plea. During the plea proceeding, the judge asked McGlocklin if he had heard all the constitutional rights that were explained to another defendant who was to enter a plea immediately preceding McGlock-lin. Defendant stated that he had heard his rights and that he understood them. The judge then quickly reviewed defendant’s rights with him. The judge placed on the record the facts of the bank robbery with which the defendant was charged. Defendant stated that the facts were true and that there was nothing that he would add or delete from the facts. Nowhere in the record before us does defendant allege that his plea was in fact involuntary or unintelligent. He relies solely on the asserted inadequacy of the plea colloquy. We find from the record of the plea proceedings that defendant’s guilty plea was voluntary and intelligent.

Accordingly, we conclude that defendant’s prior convictions should be included in the sentencing calculus.

REVERSED and REMANDED for further proceedings consistent with this opinion.

1 . While we vacated the panel opinion in United States v. McGlocklin, 962 F.2d 551 (6th Cir.), reh’g en banc granted (6th Cir. July 21, 1992), we also reserved for en banc consideration this single issue in United States v. Clay, No. 91-5409, and United States v. Landrum, No. 91-5324. With our determination of this issue, Clay and Landrum are returned to the panels to which they originally were assigned.

2 . Under section 4B1.1, "[a] defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense."

3 . Recently, the Court addressed the constitutionality of Kentucky’s procedure for allowing collateral attacks during sentencing, yet specifically declined to address whether due process requires a state court to permit challenges to prior convictions based on guilty pleas used for enhancement purposes. Parke v. Raley, - U.S. -,- -, 113 S.Ct. 517, 522-23, 121 L.Ed.2d 391 (1992).

4 . In considering the circuits that have addressed this issue, we have not referenced the panel opinion in United States v. Hoffman, 982 F.2d 187 (6th Cir.1992), for two reasons. First, the pronouncements in Hoffman concerning the 1990 amendments came only after the court had specifically ruled "that applying the amended Application Note 6 to Hoffman would cause an ex post facto problem.” Id. at 190 (footnote omitted). Therefore, the opinion expressed on the amended version of the guidelines would appear to be dicta. Second, we agree with the view expressed in the dissent in that case. Hoffman was issued December 22, 1992, less than two weeks after this en banc court heard arguments in the present case, and the "collateral attack" issue should have been reserved since its outcome would be controlled by our en banc decision.

5 . Now that the Ninth Circuit has overruled the holding in Avery, there is no circuit that currently adheres to the absolute prohibition position urged by Judge Ryan.

6 . This essentially is the view espoused by Judge Martin in his dissent.

7 . We do not mean to suggest that the power of the court to act is derived from the background note or that the guidelines give the district courts discretion to entertain collateral attacks, see Vea-Gonzales, 986 F.2d at 327, but rather, the background note acknowledges the inherent power of the court to determine whether collateral attacks at sentencing should be allowed. The Sentencing Commission has expressly addressed this in a recently proposed amendment that would change Application Note 6. The new version would delete the sentence referring to convictions that a defendant shows to have been previously ruled constitutionally invalid and would add: "With respect to the current sentencing proceeding, this guideline or commentary does not confer upon the defendant any right to attack collaterally a prior conviction or sentence beyond any such rights otherwise recognized in law (e.g., 21 U.S.C. § 851 expressly provides that a defendant may collaterally attack certain prior convictions).” 58 Fed.Reg. 27148, 27160 (proposed May 6, 1993). This amendment is scheduled to become effective on November 1, 1993, absent action of Congress to the contrary.

8 . It is not clear whether defendants in such a position would have the right to bring a habeas petition challenging their prior conviction if the sentence under that conviction already has been completed. Maleng v. Cook, 490 U.S. 488, 492, 109 S.Ct. 1923, 1926, 104 L.Ed.2d 540 (1989) (a person does not meet the "in custody” requirement if the sentence under the conviction the person wishes to challenge has expired and is being used only for enhancement). However, several courts have ruled that the Maleng decision does not prevent a person from challenging a sentence currently being served on the grounds that it was enhanced based on an unconstitutional prior conviction. Collins v. Hesse, 957 F.2d 746, 748 (10th Cir.1992) (collecting cases); Lowery v. United States, 956 F.2d 227, 229 (11th Cir.1992) (collecting cases). We express no opinion on whether or to what extent a defendant, whose sentence under a prior conviction has expired but is being used for enhancement, may seek relief under § 2254 or § 2255.

9 . We need not address defendant's argument that the application of the new sentencing guidelines is a violation of the Ex Post Facto Clause because his crime was committed prior to the effective date of the amendment but he was sentenced after the effective date. Given our interpretation of the impact this amendment has on the discretion a district court has to consider the validity for sentencing purposes of a prior state conviction, and the fact that the district court was within its discretion in entertaining McGlocklin’s challenge, the Ex Post Facto Clause is not implicated.

10 . Although the original panel opinion in this case has been vacated, the analysis contained in part V tracks the analysis used by the panel, including the use of the same language without further attribution.

11 .Under Mackey, for a plea to be valid in Tennessee, a court must inform the defendant of and determine that he understands the nature of the charge; the minimum and maximum penalties; his right to an attorney; his right to plead not guilty; his right to a jury trial and right to be assisted by counsel at trial; his right to confront and cross-examine witnesses; his right not to be compelled to incriminate himself; that, if he pleads guilty, he waives the right to a trial; and that, if he pleads guilty, evidence of prior convictions may be used against him for sentencing.