                    UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT



                              No. 92-5703
                           Summary Calendar


UNITED STATES OF AMERICA,
                                                     Plaintiff-Appellee,


                                  versus


JESSE AGUIRRE, SR.,
                                                    Defendant-Appellant.




             Appeals from the United States District Court
                   for the Western District of Texas

                            (June 7, 1993)


Before POLITZ, Chief Judge, GARWOOD and SMITH, Circuit Judges.

POLITZ, Chief Judge:

     Jesse    Aguirre,   Sr.,   convicted    upon   his   guilty   plea   of

possession with intent to distribute in excess of 100 grams of

heroin in violation of 21 U.S.C. § 841(a)(1), appeals the sentence

imposed.     Finding no error, we affirm.



                                Background

     On March 4, 1992, authorities arrested Aguirre in possession

of approximately eight ounces of heroin.            He was indicted for

possession of in excess of 100 grams of heroin with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1).                       Invoking

21 U.S.C. § 851, the government supplemented the indictment with an

enhancement information, alleging a 1976 Texas heroin distribution

conviction which became final in 1985.              Aguirre moved to quash the

information,       contending    that     the   state   obtained   the    earlier

conviction in violation of Batson v. Kentucky,1 and it therefore

could not serve as the basis for sentence enhancement.2                   Aguirre

entered a guilty plea under an agreement in which he reserved his

right to challenge the enhancement.               The guilty plea was accepted

and Aguirre was sentenced to prison for 120 months plus a term of

supervised release.        He timely appealed.



                                       Analysis

       On appeal Aguirre renews his arguments that the district court

erred      in   refusing   to   quash    the    enhancement   information     and,

notwithstanding prima facie evidence of a Batson violation at the

1976 trial, relied on the conviction there obtained in imposing an

enchanced        sentence.3       He    acknowledges     that,     due   to    its

nonretroactivity, Batson could afford him no relief from his 1985

       1
                476 U.S. 79 (1986).

   2
          In connection with this motion, Aguirre produced evidence
that the prosecutors used eight of their ten peremptory challenges
to dismiss prospective jurors with hispanic surnames.

       3
          Aguirre also claims that the district court improperly
refused to conduct an evidentiary hearing on his Batson challenge
to the prior conviction and asserts the unconstitutionality of
21 U.S.C. § 851(e), insofar as it precludes review of his prior
conviction for Batson error.

                                          2
conviction in federal habeas corpus proceedings.4              Relying on

Burgett v. Texas,5 Baldasar v. Illinois,6 and Bourgeois v. Whitley7

for the proposition that unconstitutionally-obtained convictions

cannot support sentence enhancements, Aguirre urges, however, that

we must deny any prospective effect to his Texas conviction.

Although   initially   facially    appealing,   we   find   this   argument

ultimately unpersuasive.

     In Burgett, the Supreme Court considered a direct appeal from

a murder conviction where, in support of enhanced sentencing, the

state had placed before jurors evidence of a prior uncounseled

conviction.    Noting the fully retroactive effect of Gideon v.

Wainwright,8   the     Court     found   Burgett's    prior    conviction

presumptively invalid and held that the state could not use such a

conviction either to support guilt or to enhance punishment in a

subsequent prosecution.9       Later cases adhering to Burgett prohibit




     4
           Allen v. Hardy, 478 U.S. 255 (1986).

     5
           389 U.S. 109 (1967).

     6
           446 U.S. 222 (1980).

     7
           784 F.2d 718 (5th Cir. 1986).

     8
           372 U.S. 335 (1963).

     9
           Burgett, 389 U.S. at 114-15.


                                     3
reliance upon Gideon-violating convictions at sentencing,10 and use

of such convictions at trial to impeach the defendant.11                    In

Bourgeois, we recognized that the Burgett principle extends to

later use of convictions invalid on different grounds and found

invalid a sentencing proceeding in which the trial court considered

a conviction by a nonunanimous six-member jury.12

      Subsequent authority, however, suggests that Burgett, its

progeny, and Bourgeois are not dispositive of the instant case.             In

Lewis v. United States,13 the Supreme Court found no sixth amendment

impediment to a firearms possession conviction under 18 U.S.C.

§   1202(a)(1)14   predicated   upon       a    prior   Gideon-tainted   felony

conviction.    The Court there noted that it had not endorsed an

absolute    prohibition    on   use        of    uncounseled    convictions,15

      10
           United States v. Tucker, 404 U.S. 443 (1972).

      11
           Loper v. Beto, 405 U.S. 473 (1972).

      12
          Bourgeois, 784 F.2d at 721-22. In Burch v. Louisiana,
441 U.S. 130 (1979), the Supreme Court held unconstitutional state
criminal convictions for nonpetty offenses by nonunanimous
six-member juries. Shortly after the Court handed down Burch, the
Louisiana Supreme Court, on direct appeal, affirmed the prior
conviction at issue in Bourgeois.

      13
           445 U.S. 55 (1980).

      14
          That statute, now codified as amended at 18 U.S.C.
§ 922(g)(1), prohibits firearm possession by any person "who has
been convicted by a court of the United States or of a State or any
political subdivision therof of a felony.

      15
          Lewis, 445 U.S. at 66-67 (citing Scott v. Illinois, 440
U.S. 367 (1979)).

                                       4
distinguishing Burgett, Tucker, and Loper, noting that

     [i]n each of those cases, this Court found that the
     subsequent conviction or sentence violated the Sixth
     Amendment because it depended upon the reliability of a
     past uncounseled conviction.    The federal gun laws,
     however, focus not on reliability, but on the mere fact
     of conviction, or even indictment, in order to keep
     firearms away from potentially dangerous persons.16

Lewis suggests the close relationship between the right to counsel

and the reliability of criminal proceedings as the driving force of

the Burgett line of cases.17      Obviously, convictions obtained

through nonunanimous six-member jury verdicts -- at issue in

Bourgeois -- raise similar concerns.     Batson violations, however,

do not.   Racially motivated peremptory strikes at best marginally

implicate the reliability of fact-finding in criminal trials.18

Batson protects   against   racially   motivated   peremptory   strikes

principally because they "'cast[] doubt on the integrity of the




     16
          Id.

    17
          See Smith v. Collins, 964 F.2d 483 (5th Cir. 1992) (Loper
motivated by unreliability of uncounseled convictions).

    18
          E.g., Powers v. Ohio, 111 S.Ct. 1364, 1371 (1991) (injury
occasioned by racially motivated peremptory strikes does not flow
from possible predisposition of dismissed jurors in defendant's
favor); Allen, 478 U.S. at 259 (rule in Batson does not have "such
a fundamental impact on the integrity of factfinding as to compel
retroactive application"); Esquivel v. McCotter, 791 F.2d 350 (5th
Cir. 1986) ("The core premises of Batson are not involved with
enhancing the truth-finding functions of the jury system.").
Notably, the Supreme Court has held that, while racially motivated
use of peremptory challenges implicates equal protection, it does
not violate the criminal defendant's sixth amendment jury trial
rights. Holland v. Illinois, 493 U.S. 474 (1990).


                                  5
judicial process' . . . and place[] the fairness of a criminal

proceeding in doubt."19

     Additionally, post hoc identification of Batson error presents

difficulties we do not find in either the Burgett or Bourgeois

contexts. By contrast to the minimal inquiry required to determine

whether a defendant had or waived counsel in prior proceedings, or

whether a prior conviction resulted from a unanimous jury verdict,

     the finding of intentional discrimination in use of
     peremptory challenges is a finding of fact that "largely
     will turn on evaluation of credibility." Years after
     trial, the prosecutor cannot adequately reconstruct his
     reasons for striking a venireman.     Nor can the judge
     recall whether he believed a potential juror's statement
     that any alleged biases would not prevent him from being
     a fair and impartial juror.20

Thus, the inquiry into possible Batson violations tainting a prior

conviction -- particularly in a case such as this one, involving

17-year-old peremptory strikes -- offers little potential for a

meaningful result.

     Racially motivated use of peremptory strikes only marginally

implicates the reliability concerns underlying the Burgett line of

cases.    Further, unlike Burgett, the instant case does not involve

enhancement on the basis of a prior conviction presently subject to

     19
          Powers, 111 S.Ct. at 1371 (internal citation omitted);
see also, e.g., Edmonson v. Leesville Concrete Co., 111 S.Ct. 2077
(1991); Esquivel (Batson primarily concerned with role of discrete
minorities in the polity of the United States and with safeguarding
accused against arbitrary exercise of power by prosecutor or
judge).

     20
          Jones v. Butler, 864 F.2d 348, 369-70 (1988) (internal
citation omitted); see also Allen, 478 U.S. at 260 (noting serious
proof problems which retroactive application of Batson would pose).


                                  6
collateral   attack.21     Finally,     the   difficulty   inherent   in

after-the-fact    identification   of    Batson   violations   counsels

strongly against requiring inquiry into such error in pre-Batson

convictions.22    We conclude and hold that pre-Batson convictions,

although potentially tainted by Batson-violating use of peremptory

strikes, may properly support sentence enhancement in subsequent

prosecutions.23    In view of this holding, Aguirre's remaining

contentions are mooted.

     The sentence imposed by the district court is AFFIRMED.




     21
          Compare    Kitchens    v. Smith, 401 U.S. 847 (1971)
(invalidating uncounseled robbery conviction of indigent defendant
which became final before Gideon decision) with Allen (Batson
standards inapplicable on habeas corpus review to convictions which
had become final at time of that decision).

     22
          Because contemporaneous objection stands as a
prerequisite to Batson relief, see Jones, determination as to the
validity of post-Batson convictions for enhancement purposes may
not present this problem.    Improper use of peremptory strikes,
under Jones, will admit of relief only where the reviewing court
has a record created at trial against which to consider the claim.

     23
          We do not today decide whether post-Batson convictions
tainted by improperly motivated use of peremptory strikes may
support sentence enhancement in a later prosecution.


                                   7
