concurring and dissenting:

I agree with the majority’s conclusion that McWilliams’s claims of ineffective assistance of counsel, selective prosecution, prosecutorial misconduct, and judicial misconduct lack merit. I would hold, however, that if McWilliams was unaware of the maximum penalty he faced when he pleaded guilty, or of the constitutional rights he waived, his guilty plea was involuntary and must be suppressed. Because the district court did not make the appropriate factual inquiry, remand is necessary.

I. Collateral Attack.

I agree with Judge Schroeder that the defendant can make a collateral attack on his prior conviction that is predicate for the firearms violation because his conviction was pre-Lewis. United States v. Goodheim, 651 F.2d 1294, 1297 (9th Cir.1981). 1

II. Voluntariness of McWilliams’s Guilty Plea.

I disagree with Judge Schroeder’s view that we can determine from the record before us that McWilliams’ plea was knowing and voluntary. Because of Judge Norris’s view that there can be no collateral attack on the conviction, he does not reach this issue.

Judge Schroeder properly points out that the issue in this case is not whether the Louisiana district court complied with Rule 11 when it accepted McWilliams’s guilty plea in 1964, but whether the plea was made voluntarily. Unless a guilty plea is made voluntarily and knowingly, the conviction based on it cannot be used to prove a firearms violation. See United States v. Pricepaul, 540 F.2d 417 (9th Cir.1976). This is true even where the plea was made before the Supreme Court’s decision in McCarthy v. United States, 394 U.S. 459 , *1226 89 S.Ct. 1166 , 22 L.Ed.2d 418 (1969) (holding that a guilty plea would be reversed automatically unless the trial court complied with Rule 11) or before Boykin v. Alabama, 395 U.S. 238 , 89 S.Ct. 1709 , 23 L.Ed.2d 274 (1969) (holding that the trial record must affirmatively disclose that a defendant entered his guilty plea understandingly and voluntarily). Pricepaul, 540 F.2d at 422 and n. 3.

McWilliams contends his plea was not voluntary and intelligent because at the time he pleaded guilty he was unaware of the maximum penalty for the crime with which he was charged, and of the rights he waived in entering the plea. If either claim is true, his 1964 conviction is invalid.

A. Maximum Penalty.

A guilty plea is not voluntary unless the defendant is aware, at the time of the plea, of the maximum sentence that may be imposed. In United States v. Myers, 451 F.2d 402 (9th Cir.1972) this court held that a plea entered in 1963 was involuntary if the defendant was unaware of the maximum penalty for the crime charged.

Judge Schroeder argues that McWilliams had sufficient awareness of the sentencing possibilities to render his plea voluntary. She relies on the prosecutor’s statement, on the record of the plea proceeding, that the maximum term McWilliams could get for receiving stolen property was ten years. The prosecutor, however, made this statement after McWilliams had pled guilty. Although someone other than the judge can inform the defendant of the maximum penalty, see United States v. Hamilton, 568 F.2d 1302, 1306 (9th Cir.), cert. denied, 436 U.S. 944 , 98 S.Ct. 2846 , 56 L.Ed.2d 785 (1978), the defendant must be aware of the sentencing range before he pleads guilty. See Pilkington v. United States, 315 F.2d 204, 208-09 (4th Cir. 1963); United States v. Frontero, 452 F.2d 406, 415 (5th Cir.1971). The transcript of McWilliams’s arraignment indicates that neither the prosecutor nor the judge informed McWilliams of the maximum penalty before he entered his guilty plea.

Judge Schroeder also relies on the fact that McWilliams bargained for and received probation. Awareness of the sentence promised under a plea bargain, however, does not constitute awareness of the consequences of the plea. Even if McWilliams’s decision to plead guilty was prudent in view of the potential penalty, the plea was not voluntary or intelligent if McWilliams was unaware of the maximum penalty when he entered his plea. See Myers, 451 F.2d at 404 . The policy behind this rule is clear. Even where the defendant is promised a certain sentence if he pleads guilty, he should know what he faces if he chooses instead to exercise his right to jury trial. Without such knowledge, the benefit of the plea bargain is uncertain, and it would be difficult to contend that the defendant had intelligently given up his fundamental constitutional rights in exchange for the plea bargain.

The transcript of McWilliams’ 1964 arraignment reveals that he was not informed of the possible penalties before he entered his guilty plea. At the suppression hearing incident to the gun charges, McWilliams testified that he was unaware of the sentence he faced when he pleaded guilty in 1964. In denying the motion to suppress, the district judge made no finding whatsoever concerning McWilliams’s knowledge. I would reverse and remand for a determination as to whether McWilliams was aware of the maximum possible sentence when he pleaded guilty in 1964.

B. Waiver of Constitutional Rights.

When a defendant pleads guilty, he stands as a witness against himself and consents to the entry of conviction without trial. Brady v. United States, 397 U.S. 742, 748 , 90 S.Ct. 1463, 1468 , 25 L.Ed.2d 747 (1970). In doing so, he waives three constitutional rights: the privilege against self-incrimination, the right to a jury trial, and the right to confront his accusers. Boykin v. Alabama, 395 U.S. 238, 243 , 89 *1227 S.Ct. 1709, 1712 , 23 L.Ed.2d 274 (1969). 2 Waivers of constitutional rights must be knowing and intelligent as well as voluntary. Brady, 397 U.S. at 748 , 90 S.Ct. at 1468 . A defendant cannot knowingly and intelligently waive constitutional rights of which he is unaware. Hence, a guilty plea entered without awareness of the constitutional rights is involuntary. See George v. United States, 633 F.2d 1299, 1301 (9th Cir.1980), cert. denied, 450 U.S. 933 , 101 S.Ct. 1397 , 67 L.Ed.2d 368 (1981); United States v. Sherman, 474 F.2d 303, 305-07 (9th Cir.1973).

McWilliams complains that he was neither advised of, nor aware of the privilege against self-incrimination, the right to jury trial, or the right to confront prosecution witnesses. The district court, instead of taking evidence to determine what McWilliams knew, simply held that McWilliams’s plea was voluntary and intelligent because he was told he would receive probation in return for his plea, and he received probation.

Judge Schroeder relies on Wilkins v. Erickson, 505 F.2d 761, 764-65 (9th Cir.1974) to excuse the district court’s failure to determine whether McWilliams was aware of the three Boykin rights when he pleaded guilty. Wilkins held that Boykin does not require articulation on the record of the constitutional rights waived by the guilty plea. Wilkins, 505 F.2d at 763 . Instead, the district court may hold a hearing to determine if the plea was intelligently and voluntarily made. Id. at 765 . In finding that the plea was voluntary, however, Wilkins relied on the fact that the state trial record showed that “Wilkins was not only aware of the rights discussed in Boykin , but was fully aware of the consequences of waiving them.” Id. at 764. This court has held that a plea can be voluntary where the defendant is not informed of his Boykin rights on the record, but it has never held that a plea made absent awareness of those rights is voluntary.

Boykin did not create a new constitutional standard for the voluntariness of guilty pleas; it merely pronounced an automatic reversal rule for pleas taken without a record demonstrating the defendant was aware of these rights when he pleaded. See Brady v. United States, 397 U.S. 742 , 747-48 n. 4, 90 S.Ct. 1463 , 1468 n. 4, 25 L.Ed.2d 747 (1970). Although the record requirement is not retroactive, pre-Boykin pleas are involuntary unless the defendant had the “requisite awareness” to enter a voluntary plea. See Myers, 451 F.2d at 408 . This court has recognized that requisite awareness includes knowledge of the three Boykin rights.

In Pricepaul we specifically noted that even though Boykin was not retroactive, a prior guilty plea could not be used to prove a firearms violation unless the government showed the Boykin rights were voluntarily and intelligently waived. 540 F.2d at 422 -24 and n. 3. See also United States v. Goodheim, 686 F.2d 776, 777 (9th Cir.1982); United States v. Freed, 703 F.2d 394, 395 (9th Cir.1983).

Because McWilliams claims that he was not aware of the maximum penalty he faced in pleading guilty, and the constitutional rights he waived I would remand for an evidentiary hearing to determine his claims.

. Judge Norris dismisses Goodheim with the offhand remark, "Goodheim’s due process notice rationale strikes me as inapplicable here." He is wrong on two counts. He is not free to disregard Goodheim, which is circuit precedent. His reliance on United States v. Liles, 432 F.2d 18 (9th Cir.1970) for the proposition that Ninth Circuit law was consistent with Lewis when McWilliams possessed a gun in 1975 is misplaced. Liles held that the federal firearms statute applied to a felon “whose status as a convicted felon changed after the date of possession, regardless of how that change of status occurred." Id. at 20 . The above cited language sounds quite broad, but Liles has been read narrowly. In McHenry v. California, 447 F.2d 470 (9th Cir.1971), this Court held that Liles was inapplicable to constitutionally infirm convictions. McHenry distinguished Liles by limiting it to its facts, i.e., to convictions held invalid because of insufficient evidence. “The majority believes that Liles is clearly distinguishable, for there ... the prior conviction was held invalid, not on any federal constitutional ground but because the evidence was insufficient.” Id. at 471. See also United States v. Pricepaul, 540 F.2d 417, 421 (9th Cir.1976).

Judge Norris would distinguish McHenry on the ground that McHenry concerns violation of a California firearms statute. McHenry , however, does not involve an interpretation of the California statute. Instead, it holds that the federal Constitution does not permit a state to premise a gun charge on a constitutionally invalid prior conviction. Id. This holding is equally applicable to a federal firearms prosecution. See Pricepaul, 540 F.2d at 421 .

Judge Norris notes Pricepaul’s uncertainty as to how broadly McHenry should be read. But there is no uncertainty on the point that is crucial here: the court in Pricepaul held that, at a minimum, "a prior state conviction obtained in violation of Boykin and the rights it protects may not be used to establish a federal firearms violation.” 540 F.2d at 421 -22 and n. 3. And there is no uncertainty that Goodheim controls this case.

. Boykin held that a court could not presume waiver of the privilege against self-incrimination, the right to jury trial, and the right to confront witnesses from a silent record. Boykin v. Alabama, 395 U.S. at 243 , 89 S.Ct. at 1712 . Because Boykin is not retroactive, Moss v. Craven, 427 F.2d 139 (9th Cir.1970), the government must be given the opportunity to prove that McWilliams knowingly and intelligently waived these rights.