U.S. v. White, 92-3173

• Decision Date: 24 June 1993
• Docket Number: No. 92-3173,92-3173
• Citation: 997 F.2d 1213
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert R. WHITE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1213

997 F.2d 1213

UNITED STATES of America, Plaintiff-Appellee, v. Robert R. WHITE, Defendant-Appellant.

No. 92-3173.

United States Court of Appeals Seventh Circuit.

Argued April 9, 1993.

Decided June 24, 1993.

Christopher W. Dysart (argued), Office of the U.S. Atty., Crim. Div., Fairview Heights, IL, for plaintiff-appellee.

George Ripplinger (argued), Ripplinger, Dixon & Johnston, Belleville, IL, for defendant-appellant.

Before BAUER, Chief Judge, POSNER, and ROVNER, Circuit Judges.

BAUER, Chief Judge.

Robert R. White was convicted of unlawful possession of a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). Pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e) and the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines"), the district court sentenced White to 192 months in prison. White appeals his sentence. We affirm.

I.

On April 8, 1992, Robert White pleaded guilty to a one-count indictment that charged him with being a felon in possession of a firearm. At White's sentencing hearing, the district court adopted without objection the factual findings of the Presentence Report ("PSR"). Sentencing Hearing Transcript at 2. The PSR indicates that White has a long history of criminal activity. White's criminal career began at least as early as the mid-1960s when, in 1967, he pleaded guilty to assault and battery with a dangerous weapon in Norfolk County, Massachusetts. PSR at 5. For this offense, White was imprisoned until September 1971, when he was paroled. In 1972, White was convicted of armed robbery in Plymouth County, Massachusetts and sent back to prison. Id. During 1975, while he was out of prison on parole, White went to California. A model of consistency, White continued his criminal career there. He returned to prison in 1977 after he pleaded guilty to five counts of burglary in Contra Costa County, California. Id.

White ran into trouble with the law again in 1988 when he was arrested in Davie, Florida and charged with reckless driving, theft, and theft by taking. Id. at 6. White told the police that he stole a student's wallet to support his crack cocaine habit. Id. He also admitted that he had stolen a second wallet which belonged to another student. White served 64 days in jail for this offense. Id. In July 1989, White was arrested in Volusia County, Florida with thirty-three credit cards that he had stolen from sixteen people. White entered a plea of nolo contendere to charges that he dealt in stolen credit cards and trafficked in counterfeit credit cards. Id. The Florida court sentenced him to 4 1/2 years in prison to be followed by 7 years probation. Id. The court also ordered White to pay restitution. On October 22, 1990, he was released on probation. White was arrested for the instant offense on April 7, 1991. Record Document ("R.Doc.") 1.

In sentencing White, the district court considered White's prior criminal offenses, noted that he committed the present offense in violation of his Florida probation, and concluded that he was a career criminal as defined by section 924(e) and the Guidelines. All things considered, this was a very reasonable conclusion. A second career would have been hard to squeeze in, what with serving time and all. See U.S.S.G. §§ 4A1.1 and 4A1.2(e). The district court therefore enhanced White's sentence.

II.

Under section 924(e), any person who violates section 922(g) and has three previous violent felony or serious drug offense convictions must receive a prison sentence of at least fifteen years. ¹ In this case, the district court satisfied that requirement by sentencing White, pursuant to the Guidelines, to 192 months--a longer term than section 924(e)'s fifteen year-minimum requirement. On appeal, White contends that two of his previous convictions do not qualify as violent felonies for purposes of section 924(e).

White makes three arguments. First, he contends that the district court erred by counting his 1967 guilty plea for assault and battery with a dangerous weapon. White claims his 1967 conviction could not be counted because the Massachusetts trial judge did not properly warn him that he waived certain rights by pleading guilty. Appellant's Brief at 11-13. White's second and third arguments challenge the district court's treatment of his 1977 burglary convictions. White contends that the district court should not have counted his burglary convictions because they were not burglaries for purposes of section 924(e)(2)(B). Id. at 7. Finally, White argues that the district court erred by treating his guilty plea to five counts of burglary as five separate previous violent felony convictions for purposes of enhancing his sentence. Id. at 9-11. We will consider each argument in turn.

A. Standard of Review

White's claims that the district court erred by using two of his prior convictions to enhance his sentence under section 924(e) involve questions of law that we review de novo. We review factual matters that relate to White's prior convictions for clear error.

B. White's 1967 Assault and Battery Conviction

White argues that the Supreme Court's decision in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), renders his 1967 assault and battery conviction constitutionally infirm. Boykin held that a conviction obtained by confession will be reversed if the record in the case does not disclose that the criminal defendant voluntarily and understandingly entered his guilty plea. Id. at 242, 89 S.Ct. at 1711. Specifically, White claims that his 1967 guilty plea does not meet the Boykin standard and that he should not be punished further for a conviction that would not withstand scrutiny today. White's Boykin argument is a dead loser.

As an initial matter, Boykin 's requirements do not apply to White's 1967 plea. Boykin sets the standard only for pleas entered after June 2, 1969, the date the Supreme Court decided Boykin. United States v. DeForest, 946 F.2d 523, 525 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1235, 117 L.Ed.2d 469 (1992). We judge White's 1967 guilty plea for the crime of assault and battery by the standards applicable during 1967. United States v. Gallman, 907 F.2d 639, 642 n. 3 (7th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1110, 113 L.Ed.2d 219 (1991). Under those standards, White's guilty plea is valid if White entered his plea voluntarily and with full understanding of the nature of the charges made in the indictment, his available defenses, and the nature and consequences of his plea. DeForest, 946 F.2d at 525.

The March 1, 1967 transcript of White's plea hearing shows that the pre-Boykin standards were satisfied. At the hearing, the court went to great lengths to make sure that White understood the charges against him. In fact, after White initially offered his guilty plea, the court specifically questioned White to determine whether he understood (1) the nature of the charges against him and (2) that his guilty plea gave the court the authority to sentence him. The court also made certain that no one had made any promises or inducements to persuade White to plead guilty. ² Later, the court questioned White a second time. That court's second series of questions included the following exchange:

Q. [by the court] I just want to ask you a few questions. As I understand it, you are asking the Court to accept your plea of guilty to this charge we talked about before. Will you tell me briefly what it is you are pleading guilty to?

A. I don't understand what you mean by that.

Q. You pleaded guilty to a crime here?

A. Yes, sir.

Q. Will you tell me what you did? What do you understand you are pleading guilty to? I don't mean the legal description, I mean the facts.

A. In other words, you want me to go over what happened?

Q. Yes.

* * * * * *

The COURT. My purpose is only to protect everybody's interest and not excluding that of the defendant. With a serious problem like this, I have to make certain that what the defendant has pleaded guilty to is the same in his mind as it is in the minds of the Court and the lawyers.

* * * * * *

Q. [by the court] Mr. White, rather than have you narrate a lot of things that may not be particularly material, did you go to the gas station in Walpole on October 5 and shoot Edward N. Pearl?

* * * * * * A. The WITNESS. Yes. The shooting happened while I was there.

Q. Did you pull the trigger on the gun that shot Edward Pearl?

A. As the word "pull the trigger," no, sir, the gun had a hair trigger on it and I was extremely nervous at the time and I gripped the gun with my left hand and I brought the gun to my side, which was in roughly the same area. I had not pointed the gun. I brought it to my side and, when I did, when I swung it up, my finger hit the trigger and it went off. Had it been a regular trigger instead of a hair trigger, the gun would not have went off.

* * * * * *

Q. When the shooting took place, was it your intent to steal money at the gas station?

A. My intention was to take the money, yes.

Q. What was your intention with respect to the use of the gun? Was it a holdup?

A. Yes, sir, I would call it that, yes.

1967 Tr. at 12-16. This transcript clearly demonstrates that the court made sure that White voluntarily pleaded guilty, that he fully understood the nature of the charges, and that he understood the consequences of his guilty plea.

White bears the burden of proving that his guilty plea does not satisfy constitutional standards. United States v. Ferguson, 935 F.2d 862, 867 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 907, 116 L.Ed.2d 807 (1992). He has merely alleged that his 1967 guilty plea is constitutionally deficient because the trial court did not properly warn him about the consequences of the plea. As the transcript of his plea hearing shows, the court did warn him. White has failed to satisfy his burden.

C. White's 1977 California Burglary Convictions as Previous Violent...