United States v. Gunn

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).
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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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