Appeal from the United States District Court for the Northern District of California. D.C. No. CR-88-0495 MHP. Marilyn Hall Patel, District Judge, Presiding.
Before: J. Clifford Wallace and David R. Thompson, Circuit Judges, and William J. Rea, District Judge.*fn** Opinion by Judge Rea.
Appellant Leonard Ricardo appeals his sentence for two counts of firearms possession in violation of 18 U.S.C. § 922(g)(1). Ricardo contends that his attorney at sentencing failed to provide effective assistance of counsel in not challenging prior convictions that were used to enhance his sentence under 18 U.S.C. § 924(e)(1). The government contends that Ricardo's challenge is barred by the retroactive application of the Supreme Court's decision in Custis v. United States, U.S. , 114 S. Ct. 1732, 128 L. Ed. 2d 517 (1994). We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm.
On October 27, 1988, appellant Leonard Ricardo pled guilty on two counts associated with firearms possession. Count One charged Ricardo with being in possession of a .45 caliber revolver on July 22, 1987, having previously been convicted "on three occasions for violent felonies" in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1).*fn1 Count Two charged Ricardo with possession of an Uzi semi-automatic carbine on February 18, 1988, in violation of 26 U.S.C. § 5861.*fn2 Count One provides for a fifteen-year minimum penalty, and Count Two carries a maximum ten-year sentence. 18 U.S.C. § 924(e)(1); 26 U.S.C. § 5871.
At the time of Ricardo's tender of plea, the district court inquired about the particular felony convictions to which he admitted for the purposes of Count One. Ricardo's counsel stipulated that Ricardo had been convicted of three prior felonies: robbery in 1970, robbery in 1975, and second-degree murder in 1979. Ricardo, through his counsel, reserved his right to attack collaterally before sentencing the constitutionality of the prior convictions that would form the basis for an enhanced penalty under 18 U.S.C. § 924(e)(1).
At sentencing, Ricardo's attorney did not challenge the validity of the prior convictions. The government recommended the minimum sentence under the applicable criminal statutes: a fifteen year sentence on Count One, to be followed by a probationary term on Count Two. The district court ultimately rejected the government's sentencing recommendation, however. Judge Patel found that Ricardo's criminal history and the nature of the crimes involved required a more severe sentence, and imposed a twenty-year term on Count One, and a consecutive ten-year term on Count Two.
On April 20, 1989, defense counsel filed, pursuant to Federal Rule of Criminal Procedure 35, a "Motion to Correct Illegal Sentence, or in the Alternative, to Reduce Sentence." In that motion, Ricardo argued that his sentence enhancement on Count One pursuant to 18 U.S.C. § 924(e)(1) was based on constitutionally infirm convictions. Ricardo contended that a sentence enhancement may not be based on constitutionally infirm prior convictions, citing Burgett v. State of Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967) and United States v. Clawson, 831 F.2d 909, 914 (9th Cir. 1987), cert. denied, 488 U.S. 923, 102 L. Ed. 2d 323, 109 S. Ct. 303 (1988). The motion did not raise an ineffective assistance of counsel claim based on defense counsel's failure to challenge Ricardo's prior convictions at sentencing. Judge Patel ultimately issued an order denying Ricardo's motion.
Ricardo's ineffective assistance claim has two elements: first, he argues that his defense attorney was deficient in not objecting to the constitutionality of the prior convictions at or before his sentencing; second, Ricardo contends that his attorney was deficient in failing to raise an ineffective assistance of counsel claim on his behalf in the post-sentence Rule 35 motion premised upon his own failure to object to the prior convictions at sentencing.*fn3 Ricardo seeks a remand to the district court so that it can consider his challenges to the prior convictions. The government opposes the appeal primarily on the grounds that the Supreme Court's recent decision in Custis v. United States, 128 L. Ed. 2d 517, 114 S. Ct. 1732, operates retroactively to preclude such challenges to prior convictions in Ricardo's case.
Federal law makes it a crime for any person "who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year" to possess, transport, or receive any firearm or ammunition. 18 U.S.C. § 922(g)(1). The Armed Career Criminal Act, 18 U.S.C. § 924(e) ("ACCA") raises the penalty for a crime under § 922(g)(1) from a maximum of 10 years in prison to a mandatory minimum sentence of 15 years if the defendant "has three ...