U.S. v. Newman

• Decision Date: 30 August 1990
• Docket Number: No. 89-50503,89-50503
• Citation: 912 F.2d 1119
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Erwin Darrell NEWMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1119

912 F.2d 1119

UNITED STATES of America, Plaintiff-Appellee, v. Erwin Darrell NEWMAN, Defendant-Appellant.

No. 89-50503.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 6, 1990.

Decided Aug. 30, 1990.

Peter M. Horstman, Federal Public Defender; Carlton F. Gunn, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant.

Robert L. Brosio, Robert R. Calo, Asst. U.S. Attys., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before HUG, BOOCHEVER and BEEZER, Circuit Judges.

HUG, Circuit Judge:

Defendant-appellant Erwin Darrell Newman ("Newman") appeals his sentence under the Sentencing Guidelines. Under a plea agreement, Newman pled guilty to three of seven counts of bank robbery, in violation of 18 U.S.C. Sec. 2113(a) (1988), and the Government moved to dismiss the remaining four counts alleged in the indictment. Newman received a sentence of 72 months (6 years) incarceration and three years supervised release. On appeal, Newman contends the district court erred by including his 1978 unlawful taking of a motor vehicle conviction ("1978 conviction"), in violation of Cal.Veh.Code Sec. 10851 (West Supp.1990), in the computation of his criminal history score under the Sentencing Guidelines. Newman argues his state guilty plea resulting in the 1978 conviction was not voluntary and intelligent under the standards pronounced in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) and its progeny. We affirm.

DISCUSSION

The sole issue on appeal is whether the three criminal history points from the 1978 conviction should have been included in Newman's criminal history category computation. See U.S.S.G. Sec. 4A1.1(a), at 4.1 (Nov.1989). ¹ The parties do not contest the offense level calculation of twenty points, including pertinent adjustments made in reaching this determination. Therefore, inclusion of the 1978 conviction results in a Sentencing Guidelines range of 63 to 78 months (based upon eleven criminal history points under Criminal History Category V). Exclusion of this conviction yields a Guidelines range of 51 to 63 months (based upon eight criminal history points under Criminal History Category IV). See id. Ch. 5, Part A, at 5.2 (sentencing table).

I. Burden of Proof

The parties dispute the burden of proof. We have not previously addressed this issue within the specific context of considering a constitutional challenge to a prior conviction in the criminal history calculation and also within the general context of determining the criminal history score. Two related questions are raised: Which party has the burden? Under what quantum of proof is the burden satisfied?

In applying the Sentencing Guidelines here, the ultimate burden of proof in demonstrating the constitutional infirmity of the 1978 conviction lies with the defendant. This conclusion follows directly from the Sentencing Guidelines commentary noting: "Convictions which the defendant shows to have been constitutionally invalid may not be counted in the criminal history score." U.S.S.G. Sec. 4A1.2 comment (n. 6), at 4.7 (Nov.1989) (emphasis added). Other circuits are in accord. See United States v. Brown, 899 F.2d 677, 679 (7th Cir.1990); United States v. Davenport, 884 F.2d 121, 124 (4th Cir.1989); United States v. Dickens, 879 F.2d 410, 411 (8th Cir.1989).

Moreover, the defendant, who participated in the earlier proceedings resulting in conviction, is often in the best position to challenge the conviction on constitutional grounds. Here, for example, the federal plaintiff was not a party to the contested state court proceedings.

It is also useful to consider similar treatment for offense level questions under the Sentencing Guidelines. We recently held the Government bears the burden of proof when seeking to raise the offense level while the defendant bears the burden in attempting to lower the offense level. United States v. Howard, 894 F.2d 1085, 1090 (9th Cir.1990). However, because the Government "is initially invoking the court's power to incarcerate a person," the Government bears "the burden of proof for any fact that the sentencing court would find necessary to determine the base offense level." Id.

Based upon each of the noted reasons, we adopt a framework for criminal history score issues which is parallel with our framework for offense level issues. Following this analogous approach, where the Government seeks the inclusion of the prior conviction in a criminal history score calculation, its proof of the fact of conviction would satisfy its initial burden. Then, pursuant to U.S.S.G. Sec. 4A1.2 comment (n. 6) (Nov.1989), the defendant would have the burden to establish the constitutional invalidity of the prior conviction for purposes of determining the criminal history category. This might be accomplished through several different means. The testimony of the defendant, as well as others, might be taken at an evidentiary hearing. See, e.g., United States v. Goodheim, 686 F.2d 776, 777-78 (9th Cir.1982) (considering whether plea was voluntary and intelligent). ² Alternatively, given the passage of time or the nature of the state court records, inferential evidence may be necessary to present the constitutional issues. See, e.g., United States v. Freed, 703 F.2d 394, 395 (9th Cir.) (considering evidence of the trial court's plea-taking practice and of counsel's practice in advising clients), cert. denied, 464 U.S. 839, 104 S.Ct. 131, 78 L.Ed.2d 126 (1983); Goodheim, 686 F.2d at 777-78 (evidence of trial judge's practice). ³

Finally, we must decide what quantum of proof should be used for factual determinations. In Howard, 894 F.2d at 1090, we applied the "preponderance of the evidence" standard, which was consistent with McMillan v. Pennsylvania, 477 U.S. 79, 91-92, 106 S.Ct. 2411, 2418-19, 91 L.Ed.2d 67 (1986), and our own and other circuit authority. Given the rationale stated in McMillan and Howard, we see no reason to depart from this standard for purposes of the criminal history score issue before us. See also United States v. Wilson, 900 F.2d 1350, 1353-54 (9th Cir.1990) ("preponderance of evidence" standard does not violate Due Process Clause). ⁴

II. Application

Here, as the parties agree, there is no extrinsic evidence. On the question of whether his plea was voluntary and intelligent, Newman has only introduced the 1978 state court transcript. See Wilkins v. Erickson, 505 F.2d 761, 764 (9th Cir.1974) (state record alone may be sufficient to determine whether Boykin rights were satisfied). Newman argues that he sustained his burden of proof by submitting this state plea-taking transcript and noting the absence in the record that he affirmatively understood the critical elements of his state conviction.

As a general matter, a guilty plea not only results in waiver of the right to a jury trial, the right to confront one's accusers and the privilege against compulsory self-incrimination, but also is an admission of guilt to the substantive crime. Boykin, 395 U.S. at 243, 89 S.Ct. at 1712 (state court plea); United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 762, 102 L.Ed.2d 927 (1989) (Rule 11 plea). A voluntary plea therefore requires "real notice of the true nature of the charge." Marshall v. Lonberger, 459 U.S. 422, 436, 103 S.Ct. 843, 851, 74 L.Ed.2d 646 (1983) (citation omitted). Therefore, an involuntary plea may result where "the accused does not understand the nature of the constitutional protections that he is waiving, or because he has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt." Henderson v. Morgan, 426 U.S. 637, 645 n. 13, 96 S.Ct. 2253, 2257 n. 13, 49 L.Ed.2d 108 (1976) (citation omitted).

The district court found in considering, as a whole, the transcript and his prior experience as a California Superior Court judge, that Newman's plea was voluntary and intelligent. The voluntariness of a guilty plea is a question of law reviewed de novo. Marshall, 459 U.S. at 431, 103 S.Ct. at 849; Hayes v. Kincheloe, 784 F.2d 1434, 1436 (9th Cir.1986), cert. denied, 484 U.S. 871, 108 S.Ct. 198, 98 L.Ed.2d 150 (1987). Whether a prior conviction is covered under the Sentencing Guidelines is also reviewed de novo, while factual matters concerning the prior conviction are reviewed for clear error. United States v. Gross, 897 F.2d 414, 416 (9th Cir.1990).

Newman first contends the state court failed to establish the factual basis for his plea as mandated under Fed.R.Crim.P. 11(c)(1). However, the propriety of the state court plea involving constitutional rights is measured under federal constitutional standards, not federal statutory requirements. Therefore, not all of the federal requirements in the plea-taking process are imposed on state courts. While Rule 11 sets forth the requirements for the entering of a plea in federal court, these requirements are not binding on a state court to the extent they are not grounded in the Constitution. Wilkins, 505 F.2d at 765. For this reason, we find Newman's argument misplaced. Cf. Smith v. McCotter, 786 F.2d 697, 702 (5th Cir.1986); Wallace v. Turner, 695 F.2d 545, 548 (11th Cir.1983) (citing other circuit authorities). Newman fails to cite any authority that such a factual predicate on the record, although good and common practice, is mandated in state court by the Constitution. It is not that a factual basis is always required in state court but that the factual basis at the plea hearing may serve to indicate the knowing and voluntary nature of the plea. Further, Newman's case law relying on requirements under Rule 11 is not directly applicable to the proceedings in the state court.

Newman also argues his plea was not voluntary and intelligent as demonstrated by the silent record in the state transcript. The district court found the record was not necessarily...