United States v. Lenihan ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-30488
Plaintiff-Appellee,
v.  D.C. No.
CR-05-00150-SEH
JAMES DENNIS LENIHAN, III,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted May 11, 2007*
Portland, Oregon
Filed May 30, 2007
Before: Harry Pregerson, Pamela Ann Rymer, and
Susan P. Graber, Circuit Judges.
Per Curiam Opinion
*This panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
6485
6488 UNITED STATES v. LENIHAN
COUNSEL
Mark D. Meyer, Great Falls, Montana, for the defendant-
appellant.
Joseph E. Thaggard, Assistant United States Attorney, Great
Falls, Montana, for the plaintiff-appellee.
OPINION
PER CURIAM:
James Dennis Lenihan III appeals his conviction on Count
III for possession of a firearm by a person convicted of a mis-
demeanor crime of domestic violence, pursuant to 18 U.S.C.
§ 922(g)(9), on the footing that his guilty plea to the predicate
misdemeanor was accepted in violation of his Sixth Amend-
ment right to counsel.1 His plea was uncounseled and, Leni-
han posits, his right to counsel was not knowingly and
intelligently waived because he was not told of the dangers
and disadvantages of self-representation. We previously
extended the Sixth Amendment “knowing and intelligent”
standard to misdemeanors in United States v. Akins, 276 F.3d
1141, 1147 (9th Cir. 2002), and invalidated the § 922(g)(9)
conviction of a defendant who pled guilty to the underlying
crime without being informed of those dangers and disadvan-
tages before waiving the right to counsel. Since then, how-
ever, the United States Supreme Court held in Iowa v. Tovar,
1
Section 922(g)(9) makes it a crime for any person “who has been con-
victed in any court of a misdemeanor crime of domestic violence, to . . .
possess in or affecting commerce, any firearm or ammunition.” Section
921(a)(33)(B)(i)(I) provides a defense to the § 922(g)(9) charge on which
Lenihan was indicted; it states: “A person shall not be considered to have
been convicted of [misdemeanor domestic violence] for purposes of this
chapter, unless . . . the person was represented by counsel in the case, or
knowingly and intelligently waived the right to counsel in the case.”
UNITED STATES v. LENIHAN 6489
541 U.S. 77, 81 (2004), that the Sixth Amendment does not
require such a rigorous warning for waiver of counsel at the
pretrial stages of a criminal proceeding. In this, Tovar under-
mines Akins. Applying Tovar, we conclude that Lenihan
failed to show that he did not knowingly and intelligently
waive his right to counsel in the domestic violence proceed-
ing, thus his attack on that conviction cannot prevail. Lenihan
also submits that his conviction may not be used because he
was not advised of the possibility that he could be prosecuted
for carrying a firearm, but this is a collateral consequence of
conviction that does not implicate the constitutionality of his
waiver. Accordingly, we affirm.2
I
Prior to trial, Lenihan moved to dismiss Count III on the
ground that his waiver fell short of what Akins requires. Akins
held that “for purposes of 18 U.S.C. § 922(g)(9), a defendant
pleading guilty to a misdemeanor must be informed of the
dangers and disadvantages of self-representation before
waiver of the right to counsel will be deemed knowing and
intelligent.” 276 F.3d at 1149. The district court held a hear-
ing on the motion at which the Great Falls Municipal Court
Judge, Hon. Nancy Luth, who presided at Lenihan’s initial
appearance when his plea was entered on the misdemeanor
charge, was a witness. Typically for such proceedings, no
transcript was made. However, Lenihan executed a written
waiver of rights, and Judge Luth testified that it was her stan-
dard practice orally to advise defendants of the charges
against them and of their constitutional rights, including the
right to counsel. Judge Luth would also advise defendants
charged with a domestic violence offense that the conviction
“could impact your ability to lawfully carry a firearm.” The
district court denied Lenihan’s motion to dismiss. It con-
cluded that Tovar called Akins’s continuing vitality into ques-
2
We resolve Lenihan’s remaining issues in a memorandum disposition
filed with this opinion.
6490 UNITED STATES v. LENIHAN
tion, but that under either decision Lenihan’s waiver was
knowing and intelligent because he was advised that his con-
viction for partner or family-member assault might affect his
right to carry a firearm.
II
Lenihan’s timely appeal presents the issue whether a warn-
ing about the dangers and disadvantages of self-representation
at the initial appearance on state misdemeanor charges is
required for a knowing and intelligent waiver of counsel
before entering a guilty plea. This, in turn, depends upon
whether Akins — which requires that a defendant be informed
of the dangers and disadvantages of self-representation when
pleading guilty to a misdemeanor — remains good law in
light of Tovar. As a three-judge panel we may reexamine con-
trolling circuit precedent in the face of intervening Supreme
Court authority. Miller v. Gammie, 335 F.3d 889, 892-93 (9th
Cir. 2003) (en banc).
[1] In Tovar, the Court considered the requirements the
Sixth Amendment imposes for waiver of counsel at a plea
hearing in light of a division of opinion that was then repre-
sented, on the one hand, by Akins, 276 F.3d at 1146-47, and
on the other, by State v. Cashman, 491 N.W.2d 462, 465-66
(S.D. 1992). The Iowa Supreme Court had required a trial
court to advise a defendant that waiving the assistance of
counsel in deciding to plead guilty entails the risk that a via-
ble defense will be overlooked, and to admonish the defen-
dant that by waiving the right to counsel he loses the
opportunity to obtain an independent opinion on whether it is
wise to plead guilty. See Tovar, 541 U.S. at 81. The United
States Supreme Court held that neither warning was mandated
by the Constitution. In so doing, it embraced the same “prag-
matic approach to the waiver question” espoused for post-
indictment questioning by police and prosecutor in Patterson
v. Illinois, 487 U.S. 285, 298 (1988). This approach keys on
“ ‘what purposes a lawyer can serve at the particular stage of
UNITED STATES v. LENIHAN 6491
the proceedings in question, and what assistance he could pro-
vide to an accused at that stage.’ ” Tovar, 541 U.S. at 90
(quoting Patterson, 487 U.S. at 298). As the Court explained,
less rigorous warnings are required pretrial because, “at that
stage, ‘the full dangers and disadvantages of self-
representation . . . are less substantial and more obvious to an
accused than they are at trial.’ ” Id. (quoting Patterson, 487
U.S. at 299). Therefore, even if the defendant “ ‘lacked a full
and complete appreciation of all of the consequences flowing
from his waiver, it does not defeat the State’s showing that the
information it provided to him satisfied the constitutional
minimum.’ ” Id. at 92 (quoting Patterson, 487 U.S. at 294).
It is clear that Tovar resolved the conflict by opting for a
pragmatic approach based on the “particular facts and circum-
stances surrounding” the case, rather than by requiring the
kind of “scripted admonitions” favored by Akins. Tovar, 541
U.S. at 92 (quoting Johnson v. Zerbst, 304 U.S. 458, 464
(1938)). In addition, the Court left no doubt that it is the
defendant’s burden in a collateral attack on an uncounseled
conviction to prove that he did not competently and intelli-
gently waive his right to the assistance of counsel. Id. We
conclude that we are now bound by Tovar.
[2] Here, as in Tovar, Lenihan does not claim that he did
not understand the misdemeanor domestic violence charge or
the range of punishments for that offense before pleading
guilty. Neither does he suggest that he did not realize he had
the right to counsel’s advice before deciding to enter a guilty
plea. The charge itself was straightforward. Apart from argu-
ing that the lack of information about the dangers and disad-
vantages of self-representation in and of itself vitiated his
waiver — an argument which had force under Akins but fails
under Tovar — Lenihan’s only submission is that he didn’t
know that his misdemeanor conviction carried the conse-
quence of forfeiting his right to bear arms or that it could lead
to a subsequent prosecution for possessing a firearm in viola-
tion of § 922(g)(9). However, he was advised that he could
6492 UNITED STATES v. LENIHAN
lose the right to carry a firearm; and the possibility of later
being prosecuted if he did carry one is a collateral conse-
quence that does not implicate the constitutionality of his
waiver. See United States v. Bethurum, 343 F.3d 712, 718
(5th Cir. 2003) (rejecting the same argument based on
§ 921(a)(33)(B)(i)); Bargas v. Burns, 179 F.3d 1207, 1216
(9th Cir. 1999) (holding that a defendant must only be
informed of direct, and not collateral, consequences of a
guilty plea); United States v. King, 618 F.2d 550, 552 (9th
Cir. 1980) (same); see also Nichols v. United States, 511 U.S.
738, 748 (1994) (indicating that an uncounseled misdemeanor
conviction could be used to enhance a later sentence without
a warning regarding the collateral consequences of the con-
viction).
[3] For these reasons, we affirm. Tovar effectively over-
ruled Akins. And Lenihan failed to carry his burden of show-
ing that he did not knowingly and intelligently waive his right
to the assistance of counsel before pleading guilty to the pred-
icate offense.
AFFIRMED.