U.S. v. Brown, 89-1999

• Decision Date: 12 April 1990
• Docket Number: No. 89-1999,89-1999
• Citation: 899 F.2d 677
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Winford Earl BROWN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 677

899 F.2d 677

UNITED STATES of America, Plaintiff-Appellee, v. Winford Earl BROWN, Defendant-Appellant.

No. 89-1999.

United States Court of Appeals Seventh Circuit.

Argued Sept. 20, 1989.

Decided April 12, 1990.

Clifford J. Proud and James Porter, Asst. U.S. Attys., Office of U.S. Atty., East St. Louis, Ill., for plaintiff-appellee U.S.

Renee E. Schooley, Federal Public Defender, St. Louis, Mo., for defendant-appellant Winford E. Brown.

Before WOOD, Jr., POSNER and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

Winford E. Brown, who pled guilty to one count of armed robbery in violation of 18 U.S.C. Sec. 2113(a) and (b) and one count of using and carrying a firearm during a federal crime of violence in violation of 18 U.S.C. Sec. 924(c)(1), appeals the district court's use of prior state court misdemeanor convictions in computing his sentence of eight years and ten months under the Sentencing Guidelines, arguing that the prior convictions were constitutionally tainted. We affirm.

On March 1, 1989, Brown pled guilty to a two-count indictment charging him with the attempted robbery of the First National Bank of Mulberry Grove, Illinois, in violation of 18 U.S.C. Secs. 2113(a) and (d), and carrying and using a .22 caliber revolver during this crime, in violation of 18 U.S.C. Sec. 924(c)(1). Subsequently, the United States Probation Office prepared a pre-sentence report for the district court that included four prior Illinois state misdemeanor convictions. Three of these convictions occurred in Madison County, Illinois and one in Bond County, Illinois. Two of these included the crimes of battery and resisting arrest in one conviction and retail theft in the other. The third Madison County criminal conviction was for retail theft. The fourth conviction occurred in Bond County, Illinois, and was for theft.

Brown's defense counsel after introducing certified court records for the Madison County convictions and an excerpt from a Bond County transcript, objected to the district court's consideration of the prior misdemeanor convictions, arguing that they were constitutionally invalid. Brown's counsel argued that "[t]he records [did] not adequately indicate a waiver of" Brown's constitutional rights before entry of a plea. The certified records from Madison County stated: "Defendant appears in open court and is advised of the nature of the charge, possible penalties and rights, including right to appointed counsel if indigent." The forms also recited that: "The Court finds defendant's plea to be voluntarily, knowingly, and understandably made and further finds that there is a factual basis to support said plea." Each of the Madison County forms also stated that Brown waived counsel.

As for the conviction for theft in Bond County, the transcript contained the following advice from the trial court to Brown:

"You have a right of course today to plead not guilty, to have a trial, that means a trial by jury unless you waive it or give it up, at that trial of course to be present, confront and cross-examine the state's witnesses, that means [asking] them questions under oath in open court, to be represented by an attorney of your choice. If you cannot afford an attorney, you have a right to request that an attorney be appointed. And, if that's the case one will be appointed. And at trial you have a right to testify or remain silent, call and subpoena your own witnesses, and the people have a burden of proof beyond a reasonable doubt to prove that you did this."

The Bond County transcript further reflects that the trial judge thoroughly questioned the defendant concerning his understanding of the charge for which he now stood charged before the court, his age, whether he was a high school graduate, and his comprehension of the English language. The state court record also recited that Brown had received and read an amended information charging him with the less serious misdemeanor charge of theft of property. The court informed Brown of the possible sentence and penalties associated with the charge. The Bond County transcript also stated that the defendant was questioned by the court as to whether he understood his rights and had any questions concerning them. Brown answered he had no questions of the court concerning the advice given, he understood charges before the court and he understood his rights, and wanted to plead guilty. The state court transcript reflects that the court went further and inquired of Brown whether anyone had told him he had to plead guilty and if he agreed to give up his rights to a jury trial, confrontation, direct examination, and to an attorney. Brown denied being told to plead guilty and again agreed to waive his rights.

The district court ruled that Brown validly waived his right to counsel. The federal trial court further found that, based on the court records and the transcript introduced, the introduction of his prior criminal convictions was constitutionally valid. On appeal, Brown argues that the district court erred in finding that the prior Illinois state convictions in Madison and Bond Counties were constitutionally valid and could be used in determining Brown's criminal history score under the Sentencing Guidelines. ¹

II.

Initially, we note that "[w]e review a district court's factual findings in determining an appropriate criminal sentence for clear error." United States v. Jordan, 890 F.2d 968, 972 (7th Cir.1989). In this case, the Sentencing Guideline application questions involved "essentially questions of fact for the district court to resolve from a variety of sources." Id. "The result is that we will affirm the district court if it correctly applied the guidelines to findings of facts that do not leave us 'with the definite and firm conviction that a mistake has been committed.' [United States v.] Herrera, 878 F.2d [997,] 1000 [ (7th Cir.1989) ] (citations omitted)." Jordan, 890 F.2d at 972.

Brown contends that the district court erred in concluding that the prior Illinois convictions mentioned in the pre-sentence report were constitutionally valid. Specifically, Brown alleges that the record of the prior convictions fails to adequately demonstrate that he understandingly and voluntarily pled guilty to each of the offenses nor did he intelligently and understandingly waive his right to counsel. Brown's counsel has repeated her argument made in the district court that "[t]he records do not adequately indicate a waiver of" Brown's rights. Brown contends that because the records in the cases are inadequate, the guilty pleas are invalid and should not have been used in the district court's computation of Brown's criminal history score.

In making his arguments, Brown relies on Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969), for the proposition that waiver of the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one's accusers cannot be presumed from what he refers to as a silent record. The defendant argues that the proposition is similar to Burgett v. Texas, 389 U.S. 109, 114-15, 88 S.Ct. 258, 261-62, 19 L.Ed.2d 319 (1967), that "[p]resuming waiver of counsel from a silent record is impermissible."

The Sentencing Guidelines provide that "[c]onvictions which the defendant shows to have been constitutionally invalid may not be counted in the criminal history score." Sentencing Guidelines section 4A1.2, Application Note 6. "[I]t is clear from the plain language [of this note] that the defendant has the burden of showing that a prior conviction is constitutionally invalid." United States v. Davenport, 884 F.2d 121, 124 (4th Cir.1989). Furthermore, as the court stated in United States v. Dickens, 879 F.2d 410,...