United States v. Guy Frank Ruo, 943 F.2d 1274, 11th Cir. (1991)
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Scribd Government DocsUnited States v. Guy Frank Ruo, 943 F.2d 1274, 11th Cir. (1991)
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Scribd Government Docs943 F.
2d 1274
UNITED STATES of America, Plaintiff-Appellee,
v.
Guy Frank RUO, Defendant-Appellant.
No. 90-5400.
United States Court of Appeals,
Eleventh Circuit.
Oct. 4, 1991.
John M. Weinberg, Miami, Fla., for defendant-appellant.
Dexter Lehtinen, U.S. Atty., Thomas P. Lanigan, Patricia L. Fahlbusch,
Linda Collins Hertz, Anne Ruth Schultz, Asst. U.S. Attys., Miami, Fla.,
for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of
Florida.
Before HATCHETT and DUBINA, Circuit Judges, and WILLIAMS1 ,
Senior Circuit Judge.
JERRE S. WILLIAMS, Senior Circuit Judge:
Appellant Guy Frank Ruo pleaded guilty to two counts of possession of a
firearm by a convicted felon, in violation of 18 U.S.C. 922(g)(1), 924(a)(2),
and 924(e)(1). The court ordered Ruo to serve concurrent sentences of fifteen
years incarceration without parole eligibility and three years supervised release
for each of the counts. Ruo received enhanced sentences as an "armed career
criminal" because he had previously been convicted of more than three violent
felonies, as defined by the Armed Career Criminal Act, 18 U.S.C. 924(e).
Ruo now contests these enhanced sentences by arguing that his prior
convictions were invalid. We affirm the sentences.
I.
2
The Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e), increases the
penalty applicable to certain habitual felony offenders who possess firearms in
violation of 18 U.S.C. 922(g)(1). The ACCA provides in relevant part:
3 person who violates section 922(g) of this title and has three previous
[A]
convictions ... for a violent felony ... shall be ... imprisoned not less than fifteen
years ... and such person shall not be eligible for parole with respect to the sentence
imposed under this subsection.
4....
5 term "violent felony" means any crime punishable by imprisonment for a term
the
exceeding one year that ... is burglary, arson, or extortion ... or otherwise involves
conduct that presents a serious potential risk of physical injury to another ...
6
18 U.S.C. 924(e). The Act is merely a sentence enhancement provision; it
does not create a separate offense. United States v. McGatha, 891 F.2d 1520,
1527 (11th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 2188, 109 L.Ed.2d 516
(1990). The predicate convictions need not be set out in the indictment nor
proved beyond a reasonable doubt at trial, as they are only relevant for
recidivist sentencing. Id.
Ruo was sentenced as an "armed career criminal" because of fifteen prior state
court convictions for burglary and arson. These convictions resulted from
guilty pleas entered by Ruo during two separate proceedings held on October
29, 1979 and February 11, 1980. Ruo did not appeal any of these convictions.
The district court relied on these state court convictions in imposing sentence
under the ACCA for the two counts of possession of a firearm. Ruo objected to
the use of these convictions, arguing that they were invalid because he was
under the influence of controlled substances and therefore unable to render
knowing and voluntary guilty pleas. Ruo alleged that at the time of those plea
hearings he did not understand what was happening because he was in a druginduced "haze." The district court agreed that Ruo had a long history of drug
abuse, but found, after reviewing the 1979 plea colloquy, 2 that Ruo was able to
respond to a thorough questioning and was capable of entering an informed
plea.
II.
9
Ruo challenges the enhancement of his sentences under 924(e) on two
grounds. He first claims that the predicate offenses relied upon by the
government are constitutionally invalid. He further maintains that the
government has the burden of establishing the constitutional validity of a
defendant's prior convictions in order to rely on these convictions for
enhancement purposes.
10
This Court has not addressed the specific burden of proof question raised by
Ruo.3 Neither Ruo nor the government provides us with case authority
definitively disposing of this issue. Ruo refers us to Burgett v. Texas, 389 U.S.
109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), and United States v. Clawson, 831
F.2d 909 (9th Cir.1987), cert. denied, 488 U.S. 923, 109 S.Ct. 303, 102 L.Ed.2d
322 (1988). Although Burgett supports the proposition that convictions
resulting from unconstitutionally obtained guilty pleas cannot be used for
sentence enhancement, the opinion offers no insight into the burden of proof
question. Burgett, 389 U.S. at 115, 88 S.Ct. at 262. The Clawson case cited
Burgett for the proposition that the defendant may collaterally attack prior
convictions when faced with a sentence enhancement statute. Clawson, 831
F.2d at 914. We note, however, that the Clawson court then evaluated the
collateral attack by placing the burden on the defendant to prove any
constitutional infirmities. Id. at 914-15.
11
Our own research indicates that only the Seventh Circuit has resolved the
burden of proof question raised by Ruo. In United States v. Gallman, 907 F.2d
639, 643 (7th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1110, 113 L.Ed.2d
219 (1991), the Seventh Circuit addressed the issue in a case with facts
mirroring our own. The court held that once the government has shown that a
defendant has three prior felony convictions, the burden shifts to the defendant
to establish that the convictions were unconstitutional if he or she is to avoid
enhancement under 924(e). See also United States v. Ferguson, 935 F.2d 862,
866-867 (7th Cir.1991).
12
The First Circuit recently considered but declined to answer the burden of proof
question in United States v. Wilkinson, 926 F.2d 22, 28 (1st Cir.), cert. denied,
--- U.S. ----, 111 S.Ct. 2813, 115 L.Ed.2d 985 (1991). In Wilkinson, the
defendant argued that the government had the burden of proving that he was
represented by counsel during the prior conviction proceedings. The court
disposed of the claim on the ground that the record contained no indication that
the defendant had no counsel. The court held that under these specific
circumstances there was sufficient evidence to satisfy the ACCA's requirements
"irrespective of how we might eventually decide to allocate the burden of
proving (under the ACCA) that an otherwise apparently valid conviction was
unconstitutional." Id.
13
We hold in agreement with the decision of the Seventh Circuit in Gallman. To
avoid sentence enhancement under 924(e), the burden is properly placed on
the defendant raising the challenge to show the constitutional invalidity of the
prior convictions. Any given conviction might suffer any of a myriad of
constitutional defects. It would approach the absurd to require the government
to undertake to prove guilt all over again in every predicate conviction. Yet,
that is what the defendant ultimately asks, since, for example, failure to give a
fair trial is a constitutional claim. Instead, the government's burden is properly
met when it introduces evidence that there are at least three prior violent felony
convictions. The defendant must then point out any defects in a particular prior
conviction. 4 We hold that Ruo had the burden to prove the constitutional
invalidity of his prior convictions.
14
The issue which follows, then, is whether he met that burden in this case. The
district court gave Ruo ample opportunity to prove that his state court
convictions were the result of invalid guilty pleas. Ruo submitted the plea
colloquy from his 1979 state court proceedings and testimony from his brother
concerning his drug use during that period. After carefully reviewing this
evidence, the district court found that Ruo had entered knowing and voluntary
guilty pleas to the prior convictions.
15
The court recognized that Ruo was not specifically questioned about drug
intoxication at the time of the guilty pleas. The court also commented that Ruo
probably was a drug abuser during that period of his life. The court concluded,
however, that Ruo responded lucidly to a thorough questioning during the plea
proceedings, and that his answers indicated that he was fully aware of the
offenses charged, the possible punishment, and the rights he was waiving by
pleading guilty. The record solidly supports the district court's finding. We hold
that Ruo has failed to establish that his prior convictions were the result of
invalid guilty pleas. Accordingly, the convictions resulting from these guilty
pleas properly served as predicate offenses for enhancement of Ruo's sentences
under 924(e).
III.
16
Ruo next argues that he did not receive proper notice that the government
intended to use his prior convictions to seek an enhanced sentence under the
ACCA. It is unclear under our precedent whether such notice is constitutionally
required, see McGatha, 891 F.2d at 1521 n. 2, but we need not decide that issue
in this case.5 Ruo concedes that the government gave notice of "various
burglary ... and arson convictions in [the] indictment." Of course, the
government listed many more prior convictions in the indictment than the three
required by the ACCA. The government also provided further documentation
of the prior convictions in its discovery response. Assuming without deciding
that the ACCA has a notice requirement, Ruo received adequate notice in this
case. See United States v. Hawkins, 811 F.2d 210, 220 (3d Cir.), cert. denied,
484 U.S. 833, 108 S.Ct. 110, 98 L.Ed.2d 69 (1987).
Conclusion
17
Today we hold that for purposes of avoiding the enhancement provision of 18
U.S.C. 924(e), a criminal defendant has the burden of proving the
constitutional invalidity of the prior felony convictions used as the predicate
offenses for application of the statute. Further, we affirm the holding of the
district court that Ruo was not drug impaired or intoxicated at the time of his
guilty pleas to the extent of casting doubt upon his guilty pleas. We affirm the
sentences of the district court as enhanced under the Armed Career Criminal
Act.
18
AFFIRMED.
Honorable Jerre S. Williams, Senior U.S. Circuit Judge for the Fifth Circuit,
sitting by designation
The 1980 plea colloquy is not in the record, but it is unnecessary for this case
because the 1979 plea colloquy is in the record and contains guilty pleas to 12
different offenses, more than enough to satisfy the ACCA
We did hold in a case involving the original Armed Career Criminal Act that a
defendant bears the burden of proving that prior convictions could not be relied
upon for sentence enhancement on the ground that they were rendered by a
court without jurisdiction. United States v. Standridge, 810 F.2d 1034, 1039
(11th Cir.), cert. denied, 481 U.S. 1072, 107 S.Ct. 2468, 95 L.Ed.2d 877 (1987)
Procedure under the Sentencing Guidelines provides an appropriate analogy. In
computing the defendant's criminal history score, the defendant has the burden
to show that prior convictions were unconstitutional. See U.S.S.G. 4A1.2
(Application Note 6). See also United States v. Luna, 768 F.Supp. 705
(N.D.Cal.1991) (Defendant has the burden of proving that a prior conviction is
constitutionally invalid to avoid the sentence enhancement provisions of 18
U.S.C. 841.)
Ruo cites United States v. Pedigo, 879 F.2d 1315 (6th Cir.1989), for the
proposition that the government must give notice of its intent to seek an
enhanced sentence under the ACCA. Although the Sixth Circuit in Pedigo
remanded the case because it could not tell if the defendant received adequate
notice of the government's intent to use a particular prior conviction, the facts of
the case make it distinguishable. In Pedigo, the government listed two of the
three required violent felonies in the indictment and introduced the third at trial.
The Sixth Circuit held that the introduction at trial was insufficient notice. Id.
at 1319
