United States v. Larry Dickens, 879 F.2d 410 (8th Cir. 1989). · Go Syfert
United States v. Larry Dickens, 879 F.2d 410 (8th Cir. 1989). Cases Citing This Book View Copy Cite
61 citation events (8 in the last 25 years) across 17 distinct courts.
Strongest positive: State v. Jensen (sd, 2011-06-29)
Treatment trajectory · 1989 → 2026 · click a year to view as-of
1989 2007 2026
Top citers, strongest first. 31 distinct citers.
discussed Cited as authority (rule) State v. Jensen
S.D. · 2011 · confidence medium
When a defendant raises the issue by a motion to strike or other appropriate means, the burden shifts to the State to prove “the existence of [a] prior valid conviction[ ] by a preponderance of the evidence.” Id. at 478-79 (emphasis omitted) (citation omitted).
cited Cited as authority (rule) United States v. Vasquez-Lopez
6th Cir. · 2004 · confidence medium
United States v. Hoffman, 982 F.2d 187, 191 (6th Cir.1992); United States v. Boyer, 931 F.2d 1201, 1204 (7th Cir.1991); United States v. Dickens, 879 F.2d 410, 412 (8th Cir.1989).
discussed Cited as authority (rule) Snyder v. Grayson
E.D. Mich. · 1994 · confidence medium
United States v. Dickens, 879 F.2d 410, 411-12 (8th Cir.1989); see, e.g., United States v. Dickerson, 901 F.2d 579, 582-83 (7th Cir.1990); Bouchillon v. Estelle, 628 F.2d 926 , 928 n. 5 (5th Cir.1980) (“Evidence as to standard practice or customary procedure can be used to demonstrate compliance with constitutional standards in a hearing on a petition for habeas corpus.”).
cited Cited as authority (rule) State, Department of Public Safety, Division of Motor Vehicles v. Fann
Alaska · 1993 · confidence medium
United States v. Davenport, 884 F.2d 121, 124 (4th Cir.1989); United States v. Dickens, 879 F.2d 410, 412 (8th Cir.1989).
discussed Cited as authority (rule) ca8 1993
8th Cir. · 1993 · confidence medium
See United States v. Young, 979 F.2d 1280, 1281 (8th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1604 , 123 L.Ed.2d 166 (1993); United States v. Washington, 886 F.2d 154, 156 (8th Cir.1989), cert. denied, 494 U.S. 1058 , 110 S.Ct. 1529 , 108 L.Ed.2d 768 (1990); United States v. Dickens, 879 F.2d 410, 411-12 (8th Cir.1989).
discussed Cited as authority (rule) United States v. Lawrence A. Calloway
6th Cir. · 1993 · confidence medium
See United States v. Gallman, 907 F.2d 639, 644 (6th Cir.1990) ("As long as [defendant's] intelligent awareness can be reasonably inferred from the transcript or the custom and practice of the court, the guilty plea ... passes muster.") (emphasis added), cert. denied, --- U.S. ----, 111 S.Ct. 1110 (1991); United States v. Dickens, 879 F.2d 410, 411-12 (8th Cir.1989) ("When a prior conviction is a number of years old and there is no transcript of the taking of the plea, 'evidence of the trial court's practice is precisely the evidence which the government will have at its disposal.' We previous…
discussed Cited as authority (rule) United States v. Larry Roscoe McGlocklin (2×)
6th Cir. · 1993 · confidence medium
United States v. Guthrie, 931 F.2d 564, 571 (9th Cir.1991); United States v. Bradley, 922 F.2d 1290, 1297 (6th Cir.1991); United States v. Unger, 915 F.2d 759, 761 (1st Cir.1990), cert. denied, 498 U.S. 1104 , 111 S.Ct. 1005 , 112 L.Ed.2d 1088 (1991); United States v. Edwards, 911 F.2d 1031, 1035 (5th Cir.1990); United States v. Wildes, 910 F.2d 1484, 1485 (7th Cir.1990); United States v. Jones, 907 F.2d 456, 463 (4th Cir.1990), cert. denied, 498 U.S. 1116 , 111 S.Ct. 1028 , 112 L.Ed.2d 1109 (1991); United States v. Dickens, 879 F.2d 410, 411 (8th Cir.1989); see also United States v. Cornog, 9…
discussed Cited as authority (rule) United States v. Hamell
8th Cir. · 1993 · confidence medium
See United States v. Young, 979 F.2d 1280, 1281 (8th Cir.1992), cert. denied, - U.S. -, 113 S.Ct. 1604 , 123 L.Ed.2d 166 (1993); United States v. Washington, 886 F.2d 154, 156 (8th Cir.1989), cert. denied, 494 U.S. 1058 , 110 S.Ct. 1529 , 108 L.Ed.2d 768 (1990); United States v. Dickens, 879 F.2d 410, 411-12 (8th Cir.1989).
discussed Cited as authority (rule) United States v. Lazaro Roman (2×)
11th Cir. · 1993 · confidence medium
See, e.g., United States v. Brown, 899 F.2d 677, 679 (7th Cir.1990); United States v. Davenport, 884 F.2d 121, 124 (4th Cir.1989); United States v. Dickens, 879 F.2d 410, 411-12 (8th Cir.1989).
discussed Cited as authority (rule) Commonwealth v. Quinones
Mass. · 1993 · confidence medium
See United States v. Warren, 973 F.2d 1304 , *433 1309-1310 (6th Cir. 1992) (unrebutted affidavit of judge concerning his practice in accepting plea satisfies government’s burden); United States v. DeForest, 946 F.2d 523, 525-526 (7th Cir. 1991), cert. denied, 112 S. Ct. 1235 (1992), and cases cited (“[i]n the absence of a transcript, the testimony of the defendant’s attorney as to his and the trial court’s custom and practice with respect to guilty pleas is sufficient to demonstrate compliance with [Boykin’s] constitutional standards”); United States v. Dickens, 879 F.2d 410, 412 …
discussed Cited as authority (rule) United States v. Shearer
D. Colo. · 1993 · confidence medium
Unger, 915 F.2d at 761 ; Newman, 912 F.2d at 1121 ; United States v. Davenport, 884 F.2d 121, 124 (4th Cir.1989); United States v. Boyer, 931 F.2d 1201, 1204 (7th Cir.) cert. denied, — U.S. -, 112 S.Ct. 209 , 116 L.Ed.2d 167 (1991); United States v. Dickens, 879 F.2d 410, 411 (8th Cir.1989); United States v. Ruo, 943 F.2d 1274 , 1276 n. 4 (11th Cir.1991).
discussed Cited as authority (rule) United States v. Warren
6th Cir. · 1992 · confidence medium
In United States v. Brown, 899 F.2d 677, 679-80 (7th Cir.1990), the Seventh Circuit rejected a Boykin challenge to the use of a defendant’s prior convictions and quoted at length from United States v. Dickens, 879 F.2d 410, 411-12 (8th Cir.1989), as follows: When a prior conviction is a number of years old and there is no transcript of the taking of the plea, “evidence of the trial court’s practice is precisely the evidence which the government will have at its disposal.” United States v. Goodheim, 686 F.2d 776, 777 (9th Cir.1982).
discussed Cited as authority (rule) Walter P. Niecko and Thelma A. Niecko v. Emro Marketing Company
6th Cir. · 1992 · confidence medium
The district court, noting that defendant had been represented by experienced trial counsel, accepted the affidavit of Judge Hayes and ruled that the three Kentucky convictions could be counted as predicate offenses for purposes of sentencing under the Armed Career Criminal Act. 28 In United States v. Brown, 899 F.2d 677, 679-80 (7th Cir.1990), the Seventh Circuit rejected a Boykin challenge to the use of a defendant's prior convictions and quoted at length from United States v. Dickens, 879 F.2d 410, 411-12 (8th Cir.1989), as follows: 29 When a prior conviction is a number of years old and th…
discussed Cited as authority (rule) United States v. Frank Canales (2×)
5th Cir. · 1992 · confidence medium
See United States v. Edwards, 911 F.2d 1031, 1035 (5th Cir.1990); see also United States v. Mims, 928 F.2d 310, 312 (9th Cir.1991); United States v. Wildes, 910 F.2d 1484, 1485 (7th Cir.1990); United States v. Jones, 907 F.2d 456 (4th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 683 , 112 L.Ed.2d 675 (1991); United States v. Dickens, 879 F.2d 410, 411-12 (8th Cir.1989).
discussed Cited as authority (rule) United States of America, Cross-Appellant v. Emory Eugene Cornog, Cross-Appellee
11th Cir. · 1991 · confidence medium
See, e.g., United States v. Jones, 907 F.2d 456, 460-69 (4th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 683 , 112 L.Ed.2d 675 (1991); United States v. Davenport, 884 F.2d 121, 122-24 (4th Cir.1989); United States v. Dickens, 879 F.2d 410, 411-12 (8th Cir.1989); United States v. Miller, 874 F.2d 466 , 469 n. 5 (7th Cir.1989).
discussed Cited as authority (rule) United States v. Lloyd Bradley (2×)
6th Cir. · 1991 · confidence medium
United States v. Dickens, 879 F.2d 410, 412 (8th Cir.1989).
discussed Cited as authority (rule) United States v. Blair William Guthrie
9th Cir. · 1991 · confidence medium
See, e.g., United States v. Newman, 912 F.2d 1119, 1121 (9th Cir.1990); United States v. Edwards, 911 F.2d 1031, 1035 (5th Cir.1990); United States v. Wildes, 910 F.2d 1484, 1485 (7th Cir.1990); United States v. Jones, 907 F.2d 456, 461 (4th Cir.), cert. denied, — U.S. *571 -, 111 S.Ct. 683 , 112 L.Ed.2d 675 (1990); United States v. Dickens, 879 F.2d 410, 411-12 (8th Cir.1989). 5 If the district court proposed to increase the defendant’s criminal history score based on a prior conviction, the defendant was entitled to challenge the validity of that conviction. 6 On June 30, 1989, the distr…
discussed Cited as authority (rule) United States v. Robert J. Wilkinson
1st Cir. · 1991 · confidence medium
See Sentencing Guidelines § 4A1.2 Application Note 6 (“Convictions which the defendant shows to have been constitutionally invalid may not be counted in the criminal history score.”) (emphasis added); United States v. Unger, 915 F.2d 759, 764 (1st Cir.1990); United States v. Dickens, 879 F.2d 410, 411-12 (8th Cir.1989).
discussed Cited as authority (rule) United States v. Eric N. Unger (2×)
1st Cir. · 1990 · confidence medium
The burden then shifts to the defendant to establish that the earlier conviction was constitutionally infirm, see U.S.S.G. § 4A1.2, application note 6 (“[c]onvictions which the defendant shows to have been constitutionally invalid may not be counted in the criminal history score”) (emphasis supplied); see also Newman 912 F.2d at 1121 ; United States v. Brown, 899 F.2d 677, 679 (7th Cir.1990); United States v. Davenport, 884 F.2d 121, 124 (4th Cir.1989); United States v. Dickens, 879 F.2d 410, 411 (8th Cir.1989), or otherwise ineligible to be the basis for an upward adjustment.
discussed Cited as authority (rule) United States v. Erwin Darrell Newman
9th Cir. · 1990 · confidence medium
See United States v. Brown, 899 F.2d 677, 679 (7th Cir.1990); United States v. Davenport, 884 F.2d 121, 124 (4th Cir.1989); United States v. Dickens, 879 F.2d 410, 411 (8th Cir.1989). *1122 Moreover, the defendant, who participated in the earlier proceedings resulting in conviction, is often in the best position to challenge the conviction on constitutional grounds.
discussed Cited as authority (rule) United States v. Frank Polk, Jr., Also Known as Frank Pork
7th Cir. · 1990 · confidence medium
The Dickerson court relied in part on United States v. Dickens, 879 F.2d 410, 412 (8th Cir.1989), which recognized “the validity of relying on evidence of the custom and practice of trial attorneys and judges to refute allegations of procedural infirmities.”
discussed Cited as authority (rule) United States v. Clyde Dickerson
7th Cir. · 1990 · confidence medium
In United States v. Dickens, 879 F.2d 410, 411-12 (8th Cir.1989), the Eighth Circuit recently confronted the question of the proper analysis to be applied to the question of whether a conviction has followed a valid guilty plea in a case where no transcript of the guilty proceedings could be found: “When a prior conviction is a number of years old and there is no transcript of the taking of the plea, ‘evidence of the trial court’s practice is precisely the evidence which the government will have at its disposal.’ United States v. Goodheim, 686 F.2d 776, 777 (9th Cir.1982).
cited Cited as authority (rule) United States v. Clark
N.D. Ill. · 1990 · confidence medium
See Taylor, 882 F.2d at 1031 ; United States v. Dickens, 879 F.2d 410, 411-12 (8th Cir.1989).
discussed Cited as authority (rule) United States v. Winford Earl Brown
7th Cir. · 1990 · confidence medium
Furthermore, as the court stated in United States v. Dickens, 879 F.2d 410, 411-12 (8th Cir. 1989), “[w]hen a prior conviction is a number of years old and there is no transcript of the taking of the plea, ‘evidence of the trial court’s practice is precisely the evidence which the government will have at its disposal.’ United States v. Goodheim, 686 F.2d 776, 777 (9th Cir.1982).
cited Cited as authority (rule) United States v. John Arney White
8th Cir. · 1989 · confidence medium
United States v. Dickens, 879 F.2d 410, 412 (8th Cir.1989).
cited Cited "see" United States v. Frank Sam Early
8th Cir. · 1996 · signal: see · confidence high
See United States v. Dickens, 879 F.2d 410, 412 (8th Cir.1989).
cited Cited "see" United States v. Lawrence M. Lafrombois
8th Cir. · 1991 · signal: see · confidence high
See United States v. Dickens, 879 F.2d 410 (8th Cir.1989). 2 A criminal defendant may waive his right to counsel as long as the waiver is voluntary, and intelligently and knowingly made.
cited Cited "see" Stuck v. Leapley
S.D. · 1991 · signal: see · confidence high
See, Dickens, supra. 4 Third, when state meets its initial burden of proof, the burden shifts to the defendant to show that the prior convictions are invalid.
discussed Cited "see" United States v. Robert William Jones, United States of America v. Donald Eugene Johnson (2×)
4th Cir. · 1990 · signal: see · confidence high
See United States v. Dickens, 879 F.2d 410 (8th Cir.1989) (affirming district court's ruling, after an evidentiary hearing before sentencing, that the defendant had failed to carry his burden that a prior conviction used in his criminal history score was the result of an involuntary guilty plea); United States v. Miller, 874 F.2d 466 , 469 n. 5 (7th Cir.1989) (noting, in dicta, that "[t]here may be times ... when a sentencing court will have to examine convictions to some degree if the defendant claims that the prior convictions are constitutionally invalid."). 44 Nonetheless, the dissent woul…
discussed Cited "see, e.g." Omar Gomaa Orabi v. Attorney General United States (2×)
3rd Cir. · 2014 · signal: see, e.g. · confidence low
See, e.g., U.S. v. Simpson, 94 F.3d 1373, 1381 (10th Cir. 1996) (“We believe that a certified docket sheet is adequate, absent some contradictory evidence by the defendant, to establish the existence of a prior conviction for this sentencing purpose” (citing United States v. Dickens, 879 F.2d 410 (8th Cir. 1989)); Brainerd v. Beal, 498 F.2d 901 (7th Cir. 1974) (“[T]he district court‟s docket cannot be impeached by affidavit” (citing Wall v. United States, 97 F.2d 672 (10th Cir. 1938), cert. denied, 305 U.S. 632 (1938))).
discussed Cited "see, e.g." United States v. Simpson
10th Cir. · 1996 · signal: see, e.g. · confidence low
See, e.g., United States v. Dickens, 879 F.2d 410 (8th Cir.1989) (affirming, over defendant’s challenge to validity, consideration of prior conviction of which only record was state court docket sheet).
UNITED STATES of America, Appellee,
v.
Larry DICKENS, Appellant
88-2263.
Court of Appeals for the Eighth Circuit.
Jul 17, 1989.
879 F.2d 410
R. Thomas Day, Asst. Federal Public Defender, St. Louis, Mo., for appellant., Patricia McGarry, Asst. U.S. Atty., for appellee.
Arnold, Gibson, Bowman.
Cited by 42 opinions  |  Published
BOWMAN, Circuit Judge.

Larry Dickens pleaded guilty to two counts of distributing cocaine in violation of 21 U.S.C. § 841(a)(1), and was sentenced to thirty months in prison. The sole issue on appeal is whether the District Court [1] erred in considering a 1982 misdemeanor conviction for passing bad checks in determining Dickens’s criminal history score under the Sentencing Guidelines. We affirm.

The Sentencing Guidelines provide for an increase in the applicable sentencing range based on a defendant’s criminal history score. This score is determined by assigning a point value to prior convictions. Hence, each prior conviction can potentially increase a defendant’s sentence. The Guidelines, though, instruct that “[cjonvic-tions which the defendant shows to have been constitutionally invalid may not be counted in the criminal history score.” Sentencing Guidelines § 4A1.2., Application Note 6.

In this case, Dickens’s criminal history score included two points for a 1982 misdemeanor conviction for passing a bad check. Dickens alleges that his guilty plea in that case was taken in violation of Boykin, [2] and therefore the District Court erroneously considered that conviction.

The District Court held an evidentiary hearing on this matter. The parties stipulated that the only record of the conviction was a state court docket sheet indicating that Dickens’s case was “heard” and that Dickens was represented by Gene Overall, then an assistant public defender. The government called attorney Overall as a witness. He testified that, although he recognized the defendant, he had no specific recollection of Dickens’s case. Overall, however, testified in detail as to the custom and practice of the state trial judge who accepted Dickens's plea of guilty. He testified that it was the judge’s practice to examine the defendant’s understanding of the rights he was relinquishing by pleading guilty, and that this practice was in accordance with Missouri Supreme Court Rules. Further, Overall testified that the trial judge customarily filled out a form as he went through his colloquy with the defendant, and that the judge had the defendant sign the form. [3] Overall also testified that it was his practice, in 1982, to fully advise his clients of their rights prior to the entry of a guilty plea. Dickens chose not to testify at the hearing.

Based upon the evidence before it, the District Court found that the government had “carried its initial burden of proof by a preponderance of the evidence that defendant Dickens’ prior conviction ... is a valid conviction.” United States v. Dickens, No. 88-80CR(1), slip op. at 1 (E.D.Mo. Aug. 16, 1988). The District Court further found that “[wjithout a plea transcript indicating that the guilty plea was not valid, or testimony to that effect by a participant in the plea proceeding (i.e., defendant, defendant’s attorney, the prosecutor, the judge, or etc.), defendant Dickens has failed to carry his burden to establish the invalidity of his guilty plea and conviction.” Id. at 2.

Dickens contends that a silent record and evidence of habit and custom are insufficient to establish that his guilty plea was voluntarily and knowingly made. We disagree. When a prior conviction is a number of years old and there is no transcript of the taking of the plea, “evidence of the trial court’s practice is precisely the evidence which the government will have at[*412] its disposal.” United States v. Goodheim, 686 F.2d 776, 777 (9th Cir.1982). We previously have recognized the validity of relying on evidence of the custom and practice of trial attorneys and judges to refute allegations of procedural infirmities. See Brim v. Solem, 693 F.2d 44, 45 (8th Cir.1982), ce rt. denied, 460 U.S. 1072, 103 S.Ct. 1530, 75 L.Ed.2d 951 (1983) (testimony of defendant’s attorney as to his and the trial court’s practice was sufficient to prove defendant had been advised of his right to appeal). The Ninth Circuit has specifically held that evidence of custom and practice is sufficient to demonstrate compliance with Boykin. See Goodheim, 686 F.2d at 777 (testimony of attorneys of trial court’s consistent practice in taking pleas was sufficient to prove validity of a plea); see also Bouchillon v. Estelle, 628 F.2d 926, 928 n. 5 (5th Cir.1980) (“Evidence as to standard practice or customary procedure can be used to demonstrate compliance with constitutional standards in a hearing on a petition for habeas corpus.”).

In the present case, the government offered the testimony of Dickens’s attorney in the 1982 case. This testimony clearly established that the trial judge consistently followed the practice of probing a defendant’s understanding of the meaning and consequences of his guilty plea. Further, the attorney testified that it was his practice to thoroughly advise his clients in advance of the rights they would be waiving by entering a guilty plea. Dickens chose not to testify. We hold that the District Court’s finding that Dickens had failed to carry his burden to establish the invalidity of his 1982 misdemeanor conviction is neither clearly erroneous nor the product of any error of law.

The sentence of thirty months imposed by the District Court is affirmed.

1

. The Honorable John F. Nangle, Chief United States District Judge for the Eastern District of Missouri.

2

. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (requiring that the record show that a defendant who pleaded guilty entered his plea understandingly and voluntarily).

3

.Overall testified that he was unable to obtain the form used by the judge in this case because the case file had been destroyed.