
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2060                                    UNITED STATES,                                      Appellee,                                          v.                                    BRUCE W. GUNN,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Stephen Neyman on brief for appellant.            ______________            Donald K.  Stern, United States  Attorney, and  Michael J. Pelgro,            ________________                                _________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                  September 13, 1994                                 ____________________                 Per  Curiam.  Appellant Bruce W. Gunn was convicted by a                 ___________            jury in February 1993 of knowingly possessing a firearm after            having  been convicted of a felony, in violation of 18 U.S.C.              922(g)(1).  The sentencing court found that, based upon his            prior  criminal  record,  Gunn  was subject  to  an  enhanced            sentence  under  the Armed  Career  Criminal  Act [ACCA],  18            U.S.C.    924(e).  He was  sentenced to a term  of 235 months            imprisonment  and a  60 month  period of  supervised release.            Gunn appeals only the enhancement of his sentence pursuant to            the ACCA.                                            I                 At  appellant's  sentencing   hearing,  the   government            provided  evidence  that Gunn  had  been  convicted in  Salem            District  Court of  three previous  offenses which  served as            predicates for the  application of  the ACCA.   Gunn did  not            dispute the  existence of  these convictions but  argued that            they were constitutionally invalid because they stemmed  from            guilty  pleas or  admissions to  sufficient facts  which were            entered without Gunn's having  proper legal representation.              He also claimed  that his convictions arose from  guilty plea            procedures in  which the judicial colloquies  were defective.            After a hearing on  Gunn's claims, the court found  that Gunn            had  been  represented by  counsel  in  regard to  all  three            predicate convictions.  The court further found that Gunn had            not satisfied his  burden of proving that the colloquies were                                         -2-            constitutionally defective.  Gunn challenges both findings on            appeal.                                          II                 Gunn claims  that his prior convictions  cannot serve as            predicates for an enhancement of his sentence pursuant to the            ACCA  because they  resulted from  constitutionally defective            colloquies.  However,  the Supreme Court, in Custis v. United                                                         ______    ______            States, 114  S.Ct. 1732 (1994), held  that federal defendants            ______            cannot collaterally challenge  the constitutionality of their            prior  state court  convictions  used in  sentencing under               924(e)  unless that challenge involves a complete deprivation            of counsel.  Custis,  therefore, forecloses Gunn's claim that                         ______            his  convictions should  not be  used for  sentencing because            they involved constitutionally defective colloquies.1                                         III                 Gunn also  claims that the record  before the sentencing            court  was   inadequate  to   establish  that  he   had  been            represented by counsel at all stages of the state proceedings            which resulted  in his  three prior convictions,  and, hence,            that these convictions could  not serve as predicate offenses            under the  ACCA.   However, after receiving  both documentary            and  testimonial  evidence, the  sentencing  court determined            that  the government  had  met its  burden  of showing  by  a                                            ____________________            1.  Custis,  in effect,  overrules  this court's  holding  in                ______            United States v. Paleo, 967 F.2d 7, 11-13 (1st Cir. 1992).            _____________    _____                                         -3-            preponderance of  the evidence, United States  v. Wright, 873                                            _____________     ______            F.2d  437, 441 (1st  Cir. 1989); United  States v. Wilkinson,                                             ______________    _________            926  F.2d  22, 28  (1st Cir.),  cert.  denied, 501  U.S. 1211                                            ____   ______            (1991), that Gunn had been represented by counsel.  We review            this factual finding of the sentencing court for clear error.            See United States v. Figaro, 935 F.2d 4, 8 (1st Cir. 1991).              ___ _____________    ______                 At  the sentencing  hearing,  the  government  presented            records of the Salem District Court which contained notations            that Gunn had  been appointed  counsel in each  of the  cases            which resulted  in ACCA  predicate convictions.   The records            did  not  indicate that  counsel  had  actually been  present            during  all stages of the proceedings in each case.  However,            this court has previously  indicated that "a sentencing court            may permissibly infer from the  record of the conviction that            the conviction  was not obtained  unconstitutionally provided            the  record  contains no  reason  to  believe the  contrary."            Wilkinson,  926 F.2d at 28.   In the  instant case, testimony            _________            was provided by the  Clerk Magistrate for the Salem  District            Court that court records ordinarily do not contain a separate            notation each time court-appointed  counsel appears in court.            The Clerk Magistrate,  who had been employed  as an assistant            clerk  at the  time  of the  challenged convictions,  further            testified that,  according  to court  practice,  counsel  was            required to be in attendance at all stages of the proceedings            and that  state judges  would not  allow a  case to  be heard                                         -4-            without the presence  of counsel.   Since  Gunn presented  no            evidence to contradict this  testimony, the finding that Gunn            was  represented  by  counsel  at all  stages  of  the  state            proceedings in each of  his ACCA predicate convictions cannot            be characterized as clear error.                 Affirmed.                 ________                                         -5-
