Professional Documents
Culture Documents
Filed: Patrick Fisher
Filed: Patrick Fisher
SEP 20 2002
PATRICK FISHER
Clerk
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.
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-
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.
points out that, according to the Case Summary, the defendant in the California
case was born on November 18, 1965,
-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.
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
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.
1994). On the other hand, it is equally well established that defendant has a
constitutional right to waive his right to counsel.
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.
-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
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.
-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.
See United States v. Jones , 80 F.3d 436, 438 (10th Cir. 1996)