UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-5703

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESSE AGUIRRE, SR.,

Defendant-Appellant.

Appeals from the United States District Court

for the Western District of Texas

(June 7, 1993)

Before POLITZ, Chief Judge, GARWOOD and SMITH, Circuit Judges.

POLITZ, Chief Judge:

Jesse Aguirre, Sr., convicted upon his gu ilty 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.

Background

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 to1 476 U.S. 79 (1986).

2 In connection with this motion, Aguirre produced evidence

that the prosecutors used eight of their ten peremptory challenges

to dismiss prospective jurors with hispanic surnames.

3 Aguirre also claims that the district court improperly

refused to conduct an evidentiary hearing on his Batson challenge

to the prior conviction and asserts the uncon stitutionality of

21 U.S.C. § 851(e), insofar as it precludes re view of his prior

conviction for Batson error.

2 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 t he state obtained the earlier

conviction in violation of Batson v. Kentucky

, 1 and it therefore

could not serve a s the basis for sentence enhancement. 2 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.

Analysis

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, relied on the conviction there obtained in imposing an

enchanced s entence. 3 He acknowledges that, due to its

nonretroactivity, Batson could afford him no relief from his 19854 Allen v. Hardy , 478 U.S. 255 (1986).

5 389 U.S. 109 (1967).

6 446 U.S. 222 (1980).

7 784 F.2d 718 (5th Cir. 1986).

8 372 U.S. 335 (1963).

9 Burgett , 389 U.S. at 114-15.

3 conviction in federal h abeas corpus proceedings. 4 Relying on

Burgett v. Texas

, 5 Baldasar v. Illinois

, 6 and Bourgeois v. Whitley 7

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 a rgument

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 G ideon v.

Wainwright

, 8 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. 9 Later cases adhering to B urgett prohibit10 United States v. Tucker , 404 U.S. 443 (1972).

11 Loper v. Beto , 405 U.S. 473 (1972).

12 Bourgeois

, 784 F.2d at 721-22. In B urch v. Louisiana

, 441 U.S. 130 (1979), the Supreme Court held unconstitutional state

criminal convictions for nonpetty offenses by nonunanimous

six-member juries. Shortly after the Court handed down B urch

, the

Louisiana Supreme Court, on direct appeal, affirmed the prior

conviction at issue in Bourgeois

.

13 445 U.S. 55 (1980).

14 That statute, now codified as amended at 18 U.S.C.

§ 9 22(g)(1), prohibits firearm possession by any person "who has

been convicted by a court of the United States or of a State or any political subdivision therof of a felony.

15 Lewis , 445 U.S. at 66-67 (citing Scott v. Illinois , 440

U.S. 367 (1979)).

4 reliance upon Gideon -violating convictions at sentencing, 10 and use

of such convi ctions at trial to impeach the defendant. 1 1 In

Bourgeois

, we recognized th at the B urgett principle extends to

later use of convictions invalid on different groun ds and found

invalid a sentencing proceeding in which the trial court considered

a conviction by a nonunanimous six-member jury. 12

Subsequent authority, however, suggests that Burgett

, its

progeny, and Bourgeois are not dispositive of the instant case. In

Lewis v. United States

, 13 the Supreme Court found no sixth amendment

impediment to a firearms possession convictio n under 18 U.S.C.

§ 1202(a)(1) 1 4 predicated upon a prior G ideon -tainted felony

conviction. The Court there noted that it had not endorsed an

absolute prohibition on use of uncounseled convictions, 1516 Id.

1 7 See Smith v. Collins

, 964 F.2d 483 (5th Cir. 1992) ( Loper

motivated by unreliability of uncounseled convictions).

1 8 E.g.

, Powers v. Ohio

, 111 S.Ct. 1364, 1371 (1991) (injury

occasioned by racially motivated peremptory strikes does not flow

from possible predisposition of dismi ssed jurors in defendant's

favor); Allen

, 478 U.S. at 259 (rule in Batson does not have "such

a fundamental impact on the integrity of factfinding as to compel

retroactive application"); Esquivel v. McCotter

, 791 F.2d 350 (5th

Cir. 1986) ("The core premises of Batson are not involved with

enhancing the truth-finding functions of the jury sys tem.").

Notably, the Supreme Court has held that, while racially motivated

use of peremptory challenges implicates equal protection, it does

n ot violate the criminal defendant's sixth amendment jury t rial

rights. Holland v. Illinois , 493 U.S. 474 (1990).

5 distinguishing Burgett

, Tucker , and Loper , noting that

[i]n 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 uncounse l ed 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. 16

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. 17 Obviously, convictions obtained

through nonunanimous six-member jury verdicts

-- at i ssue 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. 18

Batson protects against racially motivated peremptory strikes

principally because they "'cast[] doubt on the integrity of the19 Powers

, 111 S.Ct. at 1371 (internal citation omitted);

see also

, e.g.

, Edmonson v. Leesville Concrete Co.

, 111 S.Ct. 2077

(1991); Esquivel ( Batson primarily concerned with role of discrete

minorities in the polity of the United States and with safeguarding

accused again st arbitrary exercise of power by prosecutor or

judge).

20 Jones v. Butler

, 864 F.2d 348, 369-70 (1988) (internal

citation omitted); see also Allen

, 478 U.S. at 260 (noting serious

proof problems which retroactive application of Batson would pose).

6 judicial proc ess' . . . and place[] the fairness of a criminal

proceeding in doubt." 19

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 fin d ing 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 any alleged biases would not prevent him from being

a fair and impartial juror. 20

Thus, the inquiry into possible Batson violations tainting a prior

conviction

-- particularly in a case such as this one, involving

17-year-old peremptory strikes -- offers little potential for a

meaningful result.

Racially motivated use of peremptory strikes only marginally

implicates the reliability concerns underlying the Burgett line of

cases. Further, unlike B urgett

, the instant case does not involve

enhancement on the basis of a prior conviction presently subject to21 Compare Kitchens v. Smith , 401 U.S. 847 (1971)

(invalidating uncounseled robbery conviction of indigent defendant

which became final before Gideon decision) with Allen ( Batson

standards inapplicable on habeas corpus review to convictions which

had become final at time of that decision).

22 Because contemporaneous objection stands as a

prerequisite to Batson relief, see Jones , determination as to the

validity of post- Batson convictions for enhan cement purposes may

not present this problem. Improper use of peremptory strikes,

under Jones

, will admit of relief only where the reviewing court

has a record created at trial against which to consider the claim.

23 We do not today decide whether post- B atson convictions

tainted by improperly motivated use of peremptory strikes may support sentence enhancement in a later prosecution.

7 collat eral attack. 2 1 Finally, the difficulty inherent in

after-the-fact identification of Batson violations counsels

s trongly against requiring inquiry into such error in pre- B atson

convictions. 22 We conclude and hold that pre- B atson convictions,

although potentially tainted by Batson -violating use of peremptory

strikes, may properly support sentence enhanc ement in subsequent

prosecutions. 23 In view of this holding, Aguirre's remaining

contentions are mooted.

The sentence imposed by the district court is AFFIRMED.