Filed: Patrick Fisher

F I L E D
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
United States Court of Appeals

Tenth Circuit
SEP 20 2002
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
GUSTAVO MOLINA-BARAJAS,
also known as Gustavo Lopez-Ibarra,
No. 01-2195
(D.C. No. CR-00-662-BB)
(D. New Mexico)
Defendant - Appellant.
ORDER AND JUDGMENT
Before OBRIEN and PORFILIO , Circuit Judges, and
District Judge.
KANE , ** Senior
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal.
See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.

This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
The Honorable John L. Kane, Senior District Judge, United States District
Court for the District of Colorado, sitting by designation.
**
I.
Defendant-appellant Gustavo Molina-Barajas was indicted in the United
States District Court for the District of New Mexico for one count of reentering
the United States in violation of 8 U.S.C. 1326(a)(1), (a)(2), and (b)(2).
Defendant pled guilty to the charge, and the district court sentenced him to
fifty-seven months imprisonment and three years of supervised release.
Defendant appeals his sentence, claiming the district court erred in calculating his
criminal history category under USSG 4A1.1. We exercise jurisdiction under 18
U.S.C. 3742 and 28 U.S.C. 1291, and we affirm defendants sentence.
Following the entry of defendants guilty plea, a United States probation
officer prepared a presentence report (PSR), recommending that defendant be
sentenced based on a criminal history category of IV and an offense level of 21.
Defendant filed objections to the PSR, arguing, inter alia, that the district court
could not assess one criminal history point under USSG 4A1.1(c) for a prior
misdemeanor burglary conviction in municipal court in Los Angeles, California,
because he was not represented by counsel in that case. In response to
defendants objection, the probation officer prepared an addendum to the PSR in
which she stated that defendant waived his right to counsel in the California case.
As evidence of the waiver, the probation officer produced a document entitled
-2-
Case Summary from the Municipal Court of Los Angeles, case No. 91R19658.
The Case Summary states as follows:
Defendant is present in court, and not represented by counsel . . .
Defendant advised of the following rights via video cassette:
Defendant arraigned and advised of the following rights at
mass advisement: speedy public trial, trial within 30/45 days, right
to remain silent, subpoena power of court, confrontation and
cross examination, jury trial, court trial, right to attorney, self
representation, reasonable bail, citizenship, effect of priors, pleas
available probation. . . .
Defendant personally waives right to counsel, appearing in propria
persona. Court advises defendant that self-representation is almost
always an unwise choice, and will not work to his advantage; further,
that he will not be helped or treated with special leniency by the
court or the prosecutor, and that he will be held to the same standards
of conduct as an attorney. Further, if he wishes to represent himself,
he will not be able to claim later that he made a mistake, or that he
received ineffective assistance of counsel. . . . [Court] determines
that defendant is competent to represent himself.
Defendant advised of and personally and explicitly waives the
following rights: representation by counsel . . . .
See Ex. B to Appellees Answer Br. at 3-4 (type face modified).
At the sentencing hearing, defendants counsel reiterated the objection to
the assessment of one criminal history point for the California conviction.
See R.,
Vol. V at 5. However, defendants counsel did not offer any evidence to rebut the
statement in the Case Summary that defendant had waived his right to counsel.
Instead, counsel only informed the court that she had requested that the
government produce a copy of a written waiver signed by defendant, but the
-3-
government had not produced any such document to her.
See id. The district
court overruled defendants objection to the assessment of one criminal history

point for the California conviction,
see id. at 6, and the court adopted the factual
findings and guideline applications in the PSR,
see id. at 9.
On appeal, defendant again argues that the district court erred in assessing
one criminal history point for the California conviction, and he again points to the
lack of a signed waiver of his right to counsel. For the first time, defendant also
claims on appeal that: (1) he could not have knowingly and intelligently waived
his right to counsel because he only has a fifth grade education; he suffered a
head injury prior to the waiver; and there is no indication an interpreter was
provided for him; and (2) there is a question of fact as to whether he committed
the burglary charged in the California case. To support the latter assertion,
defendant points to the fact that the name of the defendant in the California case
was Gustavo Adolfo Juarez.
See Ex. B to Appellees Answer Br. at 1. He also
points out that, according to the Case Summary, the defendant in the California
case was born on November 18, 1965,
see id. , while he was born on
November 19, 1966, according to the PSR.
According to the addendum to the PSR, the Federal Bureau of Investigation

had linked defendant to the alias Gustavo Adolfo Juarez through fingerprint
analysis.
-4-
II.
We review the district courts application of the sentencing guidelines de
novo and its factual findings for clear error, giving due deference to the courts
application of the guidelines to the facts.
See United States v. Henry , 164 F.3d
1304, 1310 (10th Cir. 1999). Likewise, we review de novo the question of
whether a waiver of counsel is voluntary, knowing, and intelligent.
See United
States v. Taylor , 113 F.3d 1136, 1140 (10th Cir. 1997).

Because defendant was imprisoned on the California conviction,
no question he had a right to counsel under the Sixth Amendment.
there is
See
Argersinger v. Hamlin , 407 U.S. 25, 37 (1972). There is also no question that
defendant may collaterally attack the use of the California conviction to enhance
his sentence in this case if the conviction was obtained in complete violation of
his right to counsel.
See United States v. Garcia
, 42 F.3d 573, 581 (10th Cir.
1994). On the other hand, it is equally well established that defendant has a
constitutional right to waive his right to counsel.
See United States v. Windle , 74
F.3d 997, 1001 (10th Cir. 1996). Further, if defendant entered into a valid
waiver, the waiver precludes him from collaterally attacking the California
conviction.
Id.
Defendant was sentenced to twenty days in jail and twenty-four months

probation for the burglary charge.
See Ex. B to Appellees Answer Br. at 1.
-5-
Because the Case Summary shows that defendant expressly waived his right
to counsel in the California case, it was defendants burden to prove the waiver
was not knowingly and intelligently made, or is otherwise constitutionally infirm.
See United States v. Williamson
, 806 F.2d 216, 220 (10th Cir. 1986);
see also
Windle , 74 F.3d at 1001 (holding that, [o]nce the prosecution establishes the
existence of a [prior] conviction for use in enhancing the defendants sentence,
the defendant must prove by a preponderance of the evidence that the conviction
was constitutionally infirm). As set forth above, defendant failed to put forth
any evidence in the district court proceedings to show that the Case Summary was
in any way inaccurate, and he likewise offered no evidence to establish that the
waiver of counsel summarized therein was not voluntary, knowing, and
intelligent. Instead, defendants only objection was that the government had not
produced a signed waiver, and that objection was irrelevant given defendants
failure to offer any substantive evidence to contradict the Case Summary.
Accordingly, we agree with the district court that the California conviction is
constitutionally valid for enhancement purposes.
See Windle , 74 F.3d at 1001
(holding that a record indicating counsel was waived in the predicate

misdemeanor case is sufficient, in the absence of contrary allegations, to make the
conviction constitutionally valid for enhancement purposes).
-6-
Finally, for the first time on appeal, defendant has put forth several vague
and conclusory reasons as to why the waiver of counsel in the California case was
invalid. However, each of the reasons put forth by defendant involve factual
issues that must be raised in the district court in the first instance or they are
waived. See United States v. Saucedo , 950 F.2d 1508, 1518 (10th Cir. 1991),
overruled on other grounds , Stinson v. United States , 508 U.S. 36 (1993).
Moreover, [a] factual dispute concerning the applicability of a particular
guideline, not brought to the attention of the district court, does not rise to the
level of plain error.
Id. This same waiver rule also applies to defendants claim
that there is a question of fact as to whether he committed the burglary charged in

the California case, and we are prohibited from considering that claim for the first
time on appeal.
See United States v. Jones , 80 F.3d 436, 438 (10th Cir. 1996)
(holding that a defendants claim of innocence with respect to a prior conviction

that was asserted for the first time on appeal involve[d] a factual dispute
concerning the applicability of a particular guideline, which . . . does not rise to
the level of plain error).
The sentence imposed by the district court is AFFIRMED.
Entered for the Court
John L. Kane
Senior District Judge
-7-

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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

UNITED STATES OF AMERICA,

See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

government had not produced any such document to her.

See id. The district

court overruled defendants objection to the assessment of one criminal history

see id. at 6, and the court adopted the factual

findings and guideline applications in the PSR,

See Ex. B to Appellees Answer Br. at 1. He also

see id. , while he was born on

November 19, 1966, according to the PSR.

According to the addendum to the PSR, the Federal Bureau of Investigation

See United States v. Henry , 164 F.3d

States v. Taylor , 113 F.3d 1136, 1140 (10th Cir. 1997).

See United States v. Garcia

, 42 F.3d 573, 581 (10th Cir.

See United States v. Windle , 74

Defendant was sentenced to twenty days in jail and twenty-four months

, 806 F.2d 216, 220 (10th Cir. 1986);

See Windle , 74 F.3d at 1001

(holding that a record indicating counsel was waived in the predicate

Id. This same waiver rule also applies to defendants claim

that there is a question of fact as to whether he committed the burglary charged in

(holding that a defendants claim of innocence with respect to a prior conviction

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