decided as corrected. second correction: June 7, 1993.
Appeals from the United States District Court for the Western District of Texas.
Before Politz, Chief Judge, Garwood and Smith, Circuit Judges.
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.
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,*fn1 and it therefore could not serve as the basis for sentence enhancement.*fn2 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.
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, relying on the conviction there obtained in imposing an enchanced sentence.*fn3 He acknowledges that, due to its nonretroactivity, Batson could afford him no relief from his 1985 conviction in federal habeas corpus proceedings.*fn4 Relying on Burgett v. Texas,*fn5 Baldasar v. Illinois,*fn6 and Bourgeois v. Whitley*fn7 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,*fn8 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.*fn9 Later cases adhering to Burgett prohibit reliance upon Gideon -violating convictions at sentencing,*fn10 and use of such convictions at trial to impeach the defendant.*fn11 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.*fn12
Subsequent authority, however, suggests that Burgett, its progeny, and Bourgeois are not dispositive of the instant case. In Lewis v. United States,*fn13 the Supreme Court found no sixth amendment impediment to a firearms possession conviction under 18 U.S.C. § 1202(a)(1)*fn14 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,*fn15 distinguishing Burgett, Tucker, and Loper, noting that
in 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.*fn16
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.*fn17 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.*fn18 Batson protects against racially motivated peremptory strikes principally because they "'cast doubt on the integrity of the judicial process' . . . and place the fairness of a criminal proceeding in doubt."*fn19
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 ...