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April 23, 1990


Ilana Diamond Rovner, United States District Judge.

The opinion of the court was delivered by: ROVNER



 On November 28, 1989, defendant Willie Clark was convicted by a jury of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g) of the Armed Career Criminal ("ACC") Act. When a defendant who has been convicted for this offense has three previous convictions for violent felonies or serious drug offenses, 18 U.S.C. § 924(e) imposes a mandatory minimum prison term of fifteen years. Pending is a dispute concerning the extent to which a court may consider the validity of previous convictions in determining whether the sentencing enhancement provision of § 924(e) applies.


 Defendant was originally scheduled to be sentenced on February 20, 1990. On January 25, 1990, Probation Officer Barbara Bowman submitted her pre-sentence investigation, which stated that Clark had refused to see her. At the sentencing hearing on February 20, Clark disputed certain information in the pre-sentence investigation and expressed a desire to meet with Ms. Bowman to correct certain misinformation. To accommodate this desire, the Court reset the sentencing hearing for March 13, 1990.

 During the March 13 sentencing hearing, Clark refused to speak to the Court or respond to the Court's questions, a behavior which he had exhibited on other occasions. However, as the government prepared to introduce evidence concerning five previous convictions, Clark conferred with his court-appointed stand-by counsel, Keith Spielfogel, who then informed the Court that Clark had served subpoenas on five individuals to appear at the sentencing hearing. Spielfogel stated that the purpose of calling these individuals, all of whom were judges or defendant's attorneys in the prior cases, was to attack the validity of the prior convictions. The government expressed its opposition to the calling of these individuals as witnesses. Because the Court had not previously been aware that such an issue would arise, it took the matter under advisement but allowed the government to present its evidence. The government then called as a witness a representative of the Illinois Department of Corrections and a fingerprint examiner, and offered in evidence certified copies of five previous convictions. The five previous convictions are as follows: Date of Case Conviction Offense Number Disposition 12/13/73 Armed Robbery 72-204 Bench Trial 3/18/75 Burglary 72-422 Guilty Plea 3/18/75 Armed Robbery 73-3365 Guilty Plea 6/14/75 Armed Robbery and 73-3666 Guilty Plea Aggravated Kidnapping 2/09/81 Voluntary 80-3795 Bench Trial Manslaughter

 The first issue which must be addressed is whether Clark has a right to challenge his prior convictions during a sentencing proceeding at which consideration of those convictions may enhance his sentence. Although there is no Supreme Court authority on point, a review of Supreme Court precedents in similar contexts and of lower court opinions leads to the conclusion that such a challenge is permissible.

 In Burgett v. Texas, 389 U.S. 109, 19 L. Ed. 2d 319, 88 S. Ct. 258 (1967), a Texas trial court had convicted the defendant under the state recidivist statute, which provided for life imprisonment upon conviction of a defendant of a felony if the defendant had been convicted of two previous felonies. The court admitted in evidence a certified copy of a prior conviction in Tennessee for forgery. The defendant objected that the certified copy showed, on its face, that he had not been represented by counsel. The Supreme Court, on certiorari to the Texas Court of Criminal Appeals, held that the certified copy raised a presumption that the Tennessee conviction was void because there was no indication in the record that the defendant had waived his right to counsel. 389 U.S. at 114-15, 88 S. Ct. at 261-62. The Court then held that it violated the defendant's Sixth Amendment right to counsel to consider the invalid prior conviction to support his guilt or enhance his punishment. Id. at 115, 88 S. Ct. at 262.

 In United States v. Tucker, 404 U.S. 443, 30 L. Ed. 2d 592, 92 S. Ct. 589 (1972), the defendant had been convicted in a federal court of armed bank robbery. The sentencing judge explicitly relied on three previous state felony convictions in sentencing the defendant to 25 years in prison. Subsequently, a state court determined that two of the prior convictions were invalid because the defendant had not been represented by counsel and had not waived his right to counsel. The defendant then initiated a proceeding pursuant to 28 U.S.C. § 2255. The Supreme Court held that the defendant's sentence could not stand because it was "founded at least in part upon misinformation of constitutional magnitude." 404 U.S. at 447, 92 S. Ct. at 592.

 Burgett and Tucker have routinely been followed by lower courts which have been asked to invalidate sentences premised upon unconstitutional convictions. In United States v. Martinez, 413 F.2d 61 (7th Cir. 1969), a defendant who pled guilty in federal court to a charge of facilitating the transportation of heroin was sentenced to a minimum mandatory prison sentence of ten years after the government introduced a certified copy of the defendant's previous conviction in a federal court for violation of narcotics laws. The district court imposed the sentence after denying the defendant's request for a hearing on the validity of his plea of guilty in the earlier case. The Seventh Circuit remanded the case for such a hearing, holding that the logic of Burgett extended beyond convictions obtained without right to counsel and beyond convictions which have defects apparent from the face of the record. 413 F.2d at 63-64.

 In United States v. Johnson, 612 F.2d 305 (7th Cir. 1980), the defendant appealed his conviction and sentence under 18 U.S.C. § 922(a)(6) for falsely representing, in connection with the purchase of a firearm, that he had never been convicted of a felony. The Seventh Circuit found that the defendant's prior conviction was invalid because the guilty plea was infirm, and it remanded the case for a new sentence although it upheld the conviction.

 In United States v. Williams, 782 F.2d 1462 (9th Cir. 1985), the defendant on direct appeal argued that the district court had impermissibly relied on unconstitutional convictions in sentencing him pursuant to a plea of guilty to an indictment for burglary. The court of appeals set forth a two-part test for addressing this type of challenge to a sentence: "the appellant must show that the prior conviction was unconstitutional and that the sentencing judge mistakenly believed that it was valid and used it to enhance the sentence." 782 F.2d at 1466 (citations omitted). The court found that the defendant did not meet this test and affirmed the sentence. See also Zabel v. U.S. Attorney, 829 F.2d 15, 17 (8th Cir. 1987) (in § 2255 proceeding, court states that a "federal prisoner is entitled to resentencing if the district court relies on prior ...

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