USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-2060
UNITED STATES,
Appellee,
v.
BRUCE W. GUNN,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
___________________
____________________
Before
Cyr, Boudin and Stahl,
Circuit Judges.
______________
____________________
Stephen Neyman on brief for appellant.
______________
Donald K. Stern, United States Attorney, and Michael J. Pelgro,
________________ _________________
Assistant United States Attorney, on brief for appellee.
____________________
September 13, 1994
____________________
Per Curiam. Appellant Bruce W. Gunn was convicted by a
___________
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
-2-
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
______ ______
States, 114 S.Ct. 1732 (1994), held that federal defendants
______
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
______
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
____________________
1. Custis, in effect, overrules this court's holding in
______
United States v. Paleo, 967 F.2d 7, 11-13 (1st Cir. 1992).
_____________ _____
-3-
preponderance of the evidence, United States v. Wright, 873
_____________ ______
F.2d 437, 441 (1st Cir. 1989); United States v. Wilkinson,
______________ _________
926 F.2d 22, 28 (1st Cir.), cert. denied, 501 U.S. 1211
____ ______
(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
_________
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
-4-
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.
________
-5-