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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 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.
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 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,1 and it therefore
could not serve as 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 sentence.3 He acknowledges that, due to its
nonretroactivity, Batson could afford him no relief from his 1985
1
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 unconstitutionality of
21 U.S.C. § 851(e), insofar as it precludes review of his prior
conviction for Batson error.
2

conviction in federal habeas corpus proceedings.4 Relying on
Burgett v. Texas,5 Baldasar v. Illinois,6 and Bourgeois v. Whitley7
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,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 Burgett prohibit
4
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

reliance upon Gideon-violating convictions at sentencing,10 and use
of such convictions at trial to impeach the defendant.11 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.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 conviction under 18 U.S.C.
§ 1202(a)(1)14 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,15
10
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 Burch 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 Burch, 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.
§ 922(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

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 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.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 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.18
Batson protects against racially motivated peremptory strikes
principally because they "'cast[] doubt on the integrity of the
16
Id.
17
See Smith v. Collins, 964 F.2d 483 (5th Cir. 1992) (Loper
motivated by unreliability of uncounseled convictions).
18
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 dismissed 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 system.").
Notably, the Supreme Court has held that, while racially motivated
use of peremptory challenges implicates equal protection, it does
not violate the criminal defendant's sixth amendment jury trial
rights. Holland v. Illinois, 493 U.S. 474 (1990).
5

judicial process' . . . 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 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 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 Burgett, the instant case does not involve
enhancement on the basis of a prior conviction presently subject to
19
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 against 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

collateral attack.21 Finally, the difficulty inherent in
after-the-fact identification of Batson violations counsels
strongly against requiring inquiry into such error in pre-Batson
convictions.22 We conclude and hold that pre-Batson convictions,
although potentially tainted by Batson-violating use of peremptory
strikes, may properly support sentence enhancement in subsequent
prosecutions.23 In view of this holding, Aguirre's remaining
contentions are mooted.
The sentence imposed by the district court is AFFIRMED.
21
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
B e c a u s e c o n t e m p o r a n e o u s o b j e c t i o n s t a n d s a s a
prerequisite to Batson relief, see Jones, determination as to the
validity of post-Batson convictions for enhancement 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-Batson convictions
tainted by improperly motivated use of peremptory strikes may
support sentence enhancement in a later prosecution.
7