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August 18, 1992



The opinion of the court was delivered by: ANN CLAIRE WILLIAMS


On December 6, 1989, defendant Vincent Burnom was charged in a three-count indictment with violations of 18 U.S.C. § 922(g)(1)(felon in possession of a firearm) and 26 U.S.C. § 5861(d) (failure to register a firearm). On August 7, 1990, the defendant entered a conditional plea of guilty to Count I of the indictment, pursuant to a plea agreement with the government. Under the agreement, Burnom would accept an enhanced sentence of fifteen years because he had four previous convictions for violent felonies in state court. See 18 U.S.C. § 924(e). *fn1" Burnom, however, reserved the right to withdraw his guilty plea if the Court found that his previous convictions were unconstitutional and thus could not be used to enhance his sentence.

 On July 30, 1991, this Court issued an order regarding Burnom's motion to preclude the use of his conviction for robbery in 1969, and his convictions for burglary in 1976 and 1986 for purposes of sentence enhancement. Relying upon Judge Shadur's two-prong test in United States v. Henry, 713 F. Supp. 1182, 1188 (N.D. Ill. 1989), *fn2" this Court found that the 1969 and 1976 guilty pleas did not pass constitutional muster because they were not given voluntarily and intelligently. *fn3" However, the Court found that the 1986 plea was constitutional. Therefore, Burnom's sentence could not be enhanced because he had only been properly convicted of two, rather than three, violent crimes as required under § 924(e).

  The United States (the "government") now moves this Court to reconsider its determination regarding the constitutionality of Burnom's 1969 and 1976 guilty pleas. The government asserts that the Court did not consider the Seventh Circuit's decision in United States v. Colston, 936 F.2d 312 (7th Cir. 1991) which allegedly takes a more "flexible" approach in determining whether a guilty plea is rendered intelligently. For the reasons stated below, this court maintains its position that Burnom's 1969 and 1976 guilty pleas were not given intelligently and thus are unconstitutional.

 The Constitutionality of Burnom's Guilty Pleas

 Once the government has shown that a defendant has three prior violent felony convictions pursuant to Section 924, "the burden rests with the defendant to show that the conviction was unconstitutional." United States v. Gallman, 907 F.2d 639, 643 (7th Cir. 1990). In order for a guilty plea to be considered constitutionally valid, it must be rendered voluntarily and intelligently. North Carolina v. Alford, 400 U.S. 25, 31, 27 L. Ed. 2d 162, 91 S. Ct. 160 (1970). This constitutional protection is afforded a defendant who pleads guilty because "[a] plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment." Boykin v. Alabama, 395 U.S. 238, 242, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969).

 When a plea is not induced by threats or misrepresentations and the defendant is informed of the direct consequences of his plea, the plea is considered to have been given voluntarily. Brady v. United States, 397 U.S. 742, 755, 25 L. Ed. 2d 747, 90 S. Ct. 1463 (1970). Because Burnom has not produced any evidence that his guilty pleas were induced by threats or misrepresentations, this Court only has considered whether his pleas were rendered intelligently.

 In Boykin, the Supreme Court determined that a defendant entering a guilty plea must be apprised of three fundamental rights: the privilege against compulsory self-incrimination, the right to a jury trial, and the right to confront one's accusers. 395 U.S. at 242-43; United States v. Ferguson, 935 F.2d 862, 866 (7th Cir. 1991), cert. denied, 116 L. Ed. 2d 807, 60 U.S.L.W. 3479, 112 S. Ct. 907 (1992). *fn4" The Seventh Circuit has held, however, that strict adherence to the Supreme Court's list is not required during a plea proceeding. The Seventh Circuit has stated that "the failure to advise a defendant of each right enumerated in Boykin does not automatically invalidate the plea." United States v. Henry, 933 F.2d 553, 559 (7th Cir. 1991). Instead, if the defendant's intelligent understanding of his guilty plea can be reasonably inferred from the transcript, or from the custom or practice of the court, the plea will be considered constitutional. Id. (citing Gallman, 907 F.2d at 644; see also United States v. DeForest, 946 F.2d 523, 525 (7th Cir. 1991). In addition, the Seventh Circuit has established that there is a strong presumption favoring regularity and constitutionality of state proceedings. Ferguson, 935 F.2d at 867.

 The government contends that these statements by the Seventh Circuit require this Court to take a more flexible approach to the guilty pleas at issue in this case. Rather than applying Judge Shadur's two-prong approach, as this Court did in its original opinion, the government asserts that we must look at the totality of the circumstances surrounding the guilty pleas to determine whether the defendant intelligently waived his constitutional rights. *fn5"

 However, the Court believes that the government is overemphasizing the alleged need for "flexibility" when considering the "totality of the circumstances" in such cited cases as Henry and Colston. In these two cases, the plea proceedings clearly demonstrated that the defendants intelligently waived their constitutional rights when they entered their guilty pleas. Although the judges accepting the guilty pleas did not strictly adhere to the list enumerated by the Supreme Court in Boykin, the judges did thoroughly discuss the ramifications of a guilty plea with the defendants. See Henry, 933 F.2d at 560; Colston, 936 F.2d at 318. Furthermore, the Seventh Circuit found that the records demonstrated that the defendants had experience outside the plea proceeding which enhanced their understanding of their actions. See Henry, 933 F.2d at 560; Colston, 936 F.2d at 318.

 In Henry and Colston, the Seventh Circuit was focusing on plea proceedings where the Judges omitted isolated references to constitutional rights listed in Boykin.6 This court finds that the Seventh Circuit's decision to uphold the guilty pleas in those cases does not necessarily warrant the use of a more "flexible" approach when considering the constitutionality of all guilty pleas. Flexibility is only warranted when considering guilty pleas, like the ones in Henry and Colston, where minor, "technical violations" of the Boykin requirements occur. See Colston, 936 F.2d at 318. Based on this holding, this court has reasoned that when a plea proceeding is riddled with omissions of references to constitutional rights and failures to explain these rights, the highly "flexible" approach suggested by the Government would be inappropriate.

 A. 1969 Plea

 In Burnom's 1969 plea proceeding, the judge determined that the defendant's plea was not coerced, and informed him of his right to a jury trial and the consequences of a guilty plea. However, the judge failed to warn the defendant of his privilege against self-incrimination and his right to plead not guilty. As noted in this Court's original opinion, defendant Burnom was only 17 years old at the time and this Court had no evidence before it suggesting that he had ever been involved in a plea proceeding before. These factors, taken together, are significant' enough to raise the question of the intelligence of Burnom's guilty plea.

 The government asserts that the judge's failure to warn the defendant of his privilege against self-incrimination and his right to plead not guilty do not render the plea unconstitutional. The government compares these omissions to those made by the judge in Henry. While the Court agrees that the judge's omissions are similar, we find that the circumstances surrounding the proceedings in the instant case dictate different results. In Henry, the Seventh Circuit noted that the judge in the 1973 plea had gone through a "thorough exposition of Henry's rights." 933 F.2d at 560. The Seventh Circuit also noted that with respect to the 1975 plea the defendant should have ...

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