953 F. 2d 1387 - Muchmore v. United States

MEMORANDUM**

Tommie Kevin Muchmore, a federal prisoner, appeals pro se from the district court's dismissal of his 28 U.S.C. § 2255 motion. We review de novo, United States v. Angelone, 894 F.2d 1129, 1130 (9th Cir.1990), and we affirm.

In June 1986, Muchmore pleaded guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C.App. § 1202(a)(1), and was sentenced to a fifteen-year term of imprisonment. The predicate offenses for this charge were four prior burglary convictions under California Penal Code § 459.

Muchmore concedes that he has four previous burglary convictions under Cal.Penal Code § 459, but he contends that these convictions cannot be the predicate offenses for a conviction under 18 U.S.C.App. § 1202(a)(1) because they do not constitute "violent felonies." This argument fails because a conviction under section 1202(a)(1) required only that the defendant have three previous convictions for robbery or burglary. 18 U.S.C.A.App. § 1202(a)(1) (West 1985).1 The statutory language requiring that the three previous convictions must be for violent felonies was added to 18 U.S.C. § 924(e) as of October 27, 1986 and hence does not apply to Muchmore. Moreover, this court has held that burglary convictions under Cal.Penal Code § 459 are valid predicate offenses under 18 U.S.C. § 924(e). United States v. O'Neal, 937 F.2d 1369, 1372-74 (9th Cir.1991). Finally, because his burglary convictions are valid predicate offenses under section 1202(a)(1), Muchmore's claim that his attorney rendered ineffective assistance by allowing him to plead guilty also lacks merit.

Accordingly, the district court properly dismissed Muchmore's section 2255 motion.

AFFIRMED.