FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 06-30488 Plaintiff-Appellee,

D.C. No.

v.  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). 

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COUNSEL

Mark D. Meyer, Great Falls, Montana, for the defendantappellant. 

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 misdemeanor 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 Amendment right to counsel.1

 His plea was uncounseled and, Lenihan 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 disadvantages before waiving the right to counsel. Since then, however, the United States Supreme Court held in Iowa v. Tovar,

1Section 922(g)(9) makes it a crime for any person “who has been convicted 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.” 

6488 UNITED STATES v. LENIHAN
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 undermines 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 proceeding, 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 hearing 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 standard 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 concluded that Tovar called Akins’s continuing vitality into ques2We resolve Lenihan’s remaining issues in a memorandum disposition

filed with this opinion. 

UNITED STATES v. LENIHAN 6489
tion, but that under either decision Lenihan’s waiver was

knowing and intelligent because he was advised that his conviction for partner or family-member assault might affect his

right to carry a firearm. 

II

Lenihan’s timely appeal presents the issue whether a warning 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 controlling 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 represented, 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 viable defense will be overlooked, and to admonish the defendant 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 “pragmatic approach to the waiver question” espoused for postindictment 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

6490 UNITED STATES v. LENIHAN
the proceedings in question, and what assistance he could provide 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 selfrepresentation . . . 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 circumstances 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 intelligently 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 arguing that the lack of information about the dangers and disadvantages 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 consequence of forfeiting his right to bear arms or that it could lead

to a subsequent prosecution for possessing a firearm in violation of § 922(g)(9). However, he was advised that he could

UNITED STATES v. LENIHAN 6491
lose the right to carry a firearm; and the possibility of later

being prosecuted if he did carry one is a collateral consequence 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 conviction). 

[3] For these reasons, we affirm. Tovar effectively overruled Akins. And Lenihan failed to carry his burden of showing that he did not knowingly and intelligently waive his right

to the assistance of counsel before pleading guilty to the predicate offense. 

AFFIRMED. 

6492 UNITED STATES v. LENIHAN