Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 78-Cr-116-1 -- Alfred Y. Kirkland, judge .
Before Fairchild, Chief Judge, and Cummings and Tone, Circuit Judges.
Defendant was convicted under 18 U.S.C. § 922(a)(6) of falsely representing, in connection with the purchase of a firearm, that he had never been convicted of a felony. He had in fact been convicted in an Illinois court of voluntary manslaughter. He contends, however, that the Illinois conviction, which was based on a guilty plea, is constitutionally infirm, and that therefore he cannot be prosecuted under § 922(a)(6) for falsely stating that he had not been convicted. Alternatively, he contends that the judge improperly considered the prior conviction in imposing sentence, and that the case should therefore be remanded for resentencing. We affirm the conviction but vacate the sentence and remand for resentencing.
Five circuits have held that § 922(a)(6) is violated by a denial of conviction of a felony even though the conviction is later claimed or shown to have been unconstitutional. United States v. Graves, 554 F.2d 65, 70-72, 75-76, 79-80 (3d Cir. 1977) (in banc); United States v. Allen, 556 F.2d 720 (4th Cir. 1977); United States v. Ransom, 545 F.2d 481 (5th Cir.), Cert. denied, 434 U.S. 908, 98 S. Ct. 310, 54 L. Ed. 2d 196 (1977); Cassity v. United States, 521 F.2d 1320 (6th Cir. 1975); United States v. Edwards, 568 F.2d 68 (8th Cir. 1977). One circuit has reached the opposite conclusion. United States v. Pricepaul, 540 F.2d 417 (9th Cir. 1976).
If the charge before us were receipt, possession, or transfer of a firearm in violation of 18 U.S.C.App. § 1202(a)(1), which makes the legality of the conduct dependent on the defendant's status as a convicted felon, reversal would be required by United States v. Lufman, 457 F.2d 165 (7th Cir. 1972). The government concedes that this would also be so if the charge were receipt of a firearm in violation of 18 U.S.C. § 922(h)(1) (as it was in a second count in the case at bar, on which the jury found the defendant not guilty).
The same result does not follow, however, when the charge is the making of a false statement under § 922(a)(6). That statute "penalizes (the declarant) not for being a convicted felon, but for failing to tell the truth about the conviction." Cassity v. United States, Supra, 521 F.2d at 1323; See United States v. Graves, supra, 554 F.2d at 70, 75-76, 79-80. Failure to tell the truth about any material matter is "the essence of a § 922(a)(6) violation." United States v. Edwards, supra, 568 F.2d at 70. The distinction requiring different treatment of status and false statement offenses was recognized in Edwards By the Eighth Circuit and in Graves by Judges Garth and Seitz, who concurred with the Third Circuit in banc majority in sustaining a conviction under § 922(a)(6) but, consistent with our Lufman decision, would have reversed a conviction on another count laid under § 1202(a)(1) that had been based on the same prior conviction, 554 F.2d at 83-88.
We decline to extend the Lufman Decision to charges brought under § 922(a) (6). We agree with the five other circuits that have held that section applicable to a false denial of a prior conviction even though, subsequent to the denial, the conviction is determined to have been invalid.
It does not follow that the district court could properly rely on an invalid prior conviction in sentencing, as it did in this case. We know from Burgett v. Texas, 389 U.S. 109, 115, 88 S. Ct. 258, 262, 19 L. Ed. 2d 319 (1967), that a conviction tainted by denial of counsel in violation of Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), cannot be used "either to support guilt or enhance punishment for another offense." See also United States v. Tucker, 404 U.S. 443, 92 S. Ct. 589, 30 L. Ed. 2d 592 (1972). The same rule applies when the reason the prior conviction is unconstitutional is that it was based on an involuntary guilty plea. United States v. Martinez, 413 F.2d 61 (7th Cir. 1969). But see United States v. Graves, supra, 554 F.2d at 82 n.68. Accordingly, a sentence based in part on a prior conviction invalid because of the involuntariness of the underlying guilty plea cannot stand.
When the Burgett principle is invoked against a prior conviction obtained in another jurisdiction, the forum court must collaterally determine the validity of that conviction for purposes of the case before the court. E.g., United States v. Martinez, supra, 413 F.2d at 63. Thus the validity of Johnson's Illinois conviction must be determined for purposes of this case, even though the State of Illinois is not a party.
Because the only evidence received by the district court on the issue of the validity of the state conviction was the state court record, we are entirely dependent on that record for the facts pertaining to that conviction. Defendant Johnson was originally indicted in a state court for murder. Pursuant to a plea agreement, he pleaded guilty to the lesser offense of voluntary manslaughter and was sentenced to incarceration for a period of from one to nine years. A co-defendant, William Daniels, stood trial on the murder charge and was acquitted. Johnson then petitioned to withdraw his plea or, in the alternative, for reduction of sentence. At the hearing on the motion, the judge gave Johnson the choice of withdrawing his plea and standing trial for murder or allowing his plea to stand and having his sentence changed to probation. Johnson chose the latter.
At the hearing in which Johnson originally entered his plea of guilty to voluntary manslaughter, the prosecutor stated the following factual basis for the plea: If various named witnesses were called "their collective testimony" would be that Johnson and Daniels "had occasion to be" in a certain building and "went to the area of apartment number 208." Further, "upon gaining entrance to apartment 208 . . . Daniels had occasion to fire a gun . . . which struck Larry Cephas causing his death." Johnson was with Daniels "at the time this incident took place" and "had in his possession a .38 caliber weapon." Finally, "the shooting by Daniels was done under the mistaken belief it was necessary as a result (sic) of self-defense (although) . . . the amount of force deadly force used in firing the weapon was not necessary. And it was done in a moment of intense passion." The prosecutor, when asked by the court whether this was "an accountability case," said that it was. The theory of "accountability" was never explained.*fn1 On the basis of the foregoing recital the state court found there was "a sufficient factual basis to accept the plea as to voluntary manslaughter."*fn2
In his sworn petition to withdraw the guilty plea or, in the alternative, for a reduction of sentence, which he filed after Daniels had been acquitted, Johnson stated as follows: When he went with Daniels to Cephas' apartment he had no intention of killing anyone and did not fire a gun. The purpose of the visit to Cephas was to recover money Cephas and two other persons had taken from Daniels in an armed robbery which had been reported to the police. "Daniels merely wanted to recover his money and did not intend to use a gun until" Cephas exhibited his gun and threatened to kill Daniels. A gun was taken from Cephas' hand immediately after the shooting. ...