United States v. James Dennis Lenihan, III

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. 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, 541 U.S. 77, 81 , 124 S.Ct. 1379 , 158 L.Ed.2d 209 (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…