U.S. v. Guerrero-Robledo

• Decision Date: 20 April 2009
• Docket Number: No. 07-41151.,07-41151.
• Citation: 565 F.3d 940
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan GUERRERO-ROBLEDO, also known as, Juan Guerrero, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

565 F.3d 940

UNITED STATES of America, Plaintiff-Appellee, v. Juan GUERRERO-ROBLEDO, also known as, Juan Guerrero, Defendant-Appellant.

No. 07-41151.

United States Court of Appeals, Fifth Circuit.

April 20, 2009.

Michael Charles Elliott (argued), Laredo, TX, Kathlyn Giannaula Snyder and James Lee Turner, Asst. U.S. Attys., Houston, TX, for U.S.

Marjorie A. Meyers, Fed. Pub. Def., Timothy William Crooks, Asst. Fed. Pub. Def., Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, BENAVIDES and CLEMENT, Circuit Judges.

BENAVIDES, Circuit Judge:

Appellant Juan Guerrero-Robledo pleaded guilty to one count of being found in the United States without the consent of the Attorney General after having been deported in violation of 8 U.S.C. § 1326. Guerrero appeals his sentence, raising a Sixth Amendment claim and a challenge to the district court's application of the Sentencing Guidelines. We AFFIRM.

At sentencing, pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii), the district court increased Guerrero's offense level by sixteen based on his prior South Carolina conviction for assault and battery of a high and aggravated nature ("ABHAN"). The district court sentenced Guerrero to 58 months of imprisonment, a three-year term of supervised release, and the $100 mandatory special assessment. He now challenges the use of the prior conviction, alleging that: (1) the government had the burden to show that he had validly waived his right to counsel during the South Carolina proceedings; and (2) ABHAN does not qualify as a crime of violence for purposes of § 2L1.2(b)(1)(A)(ii).

I. WAIVER OF COUNSEL

Guerrero contends that the district court erred in increasing his offense level based on his prior South Carolina conviction for ABHAN because the government failed to meet its burden of proving that he validly waived his right to counsel when pleading guilty to ABHAN. Guerrero admits that he failed to object in the district court and that this claim is thus reviewed for plain error. This Court finds "plain error only if: (1) there was an error; (2) the error was clear and obvious; and (3) the error affected the defendant's substantial rights." United States v. Gracia-Cantu, 302 F.3d 308, 310 (5th Cir.2002). If Guerrero proves these three elements, we have the "discretion to correct the error only if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Id. (citation and internal quotation marks omitted).

The Presentence Report (PSR) contains a record of Guerrero's prior state conviction. The state record provides that Guerrero proceeded pro se but is silent with respect to his waiver of the right to counsel. The PSR noted that, under South Carolina law, all defendants are advised of their right to counsel and that indigent defendants are appointed counsel unless the defendant voluntarily and intelligently waives his right to the same. More specifically, the South Carolina Code in effect at the time of Guerrero's conviction provided that:

Any person entitled to counsel under the Constitution of the United States shall be so advised and if it is determined that the person is financially unable to retain counsel then counsel shall be provided upon order of the appropriate judge unless such person voluntarily and intelligently waives his right thereto. The fact that the accused may have previously engaged and partially paid private counsel at his own expense in connection with pending charges shall not preclude a finding that he is financially unable to retain counsel.

S.C.Code Ann. § 17-3-10 (1980 Cum. Supp.).

Guerrero does not contest the existence of his prior conviction for ABHAN. Guerrero also does not actually assert that there was a failure to comply with the above-quoted law in his prior case. Instead, he simply relies on his contention that it is the government's burden to prove a valid waiver of his right to counsel in the prior proceeding. Thus, this claim will be decided by determining whether it was plain error to not require the government to bear the burden of demonstrating the validity of the waiver of counsel.

Over forty-five years ago, the Supreme Court held that the Sixth Amendment right to state-appointed counsel, which had already been established in federal court proceedings, applied to state criminal prosecutions through the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 344-45, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Subsequently, the Supreme Court held that if a conviction is obtained in violation of Gideon, it cannot be used "either to support guilt or enhance punishment for another offense." Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). In Mitchell v. United States, this Court opined that:

The rule which has evolved is that when a convicted defendant who was indigent at the time of his conviction collaterally attacks the conviction on right-to-counsel grounds, and the record shows that he was not represented by counsel or is silent regarding representation of counsel, then the party which defends the conviction has the burden of proving that the defendant was represented by counsel or that he waived his right to counsel.

482 F.2d 289, 296 (5th Cir.1973).

In the case at bar, the government contends that the prior conviction should be afforded a presumption of regularity. The government relies on the Supreme Court's opinion in Parke v. Raley, 506 U.S. 20, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992). In Raley, the Supreme Court addressed whether Kentucky's burden-of-proof scheme violated due process because it presumed that a prior conviction being used for sentence enhancement was validly obtained. Id. at 22, 113 S.Ct. 517. In state trial court, the defendant, who had been charged as a persistent felony offender, contended that two of his prior convictions were invalid under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), because the records did not contain transcripts of the plea proceedings demonstrating that his pleas were knowing and voluntary. Id. at 22-23, 113 S.Ct. 517. The Supreme Court ultimately held that the burden-shifting rule "easily passes constitutional muster." Id. at 28, 113 S.Ct. 517. Although the Supreme Court recognized the language in Boykin that the "waiver of rights resulting from a guilty plea cannot be `presume[d] ... from a silent record,'" it explained that Boykin involved the direct appeal of a conviction. Id. at 29, 113 S.Ct. 517 (quoting Boykin, 395 U.S. at 243, 89 S.Ct. 1709). In contrast, the petitioner in Raley had never appealed his two prior convictions, which had become final years ago. Id. The Supreme Court declined to import Boykin's presumption of invalidity in the context of a collateral challenge to a conviction, explaining that doing so would "improperly ignore another presumption deeply rooted in [its] jurisprudence: the `presumption of regularity' that attaches to final judgments, even when the question is waiver of constitutional rights." Id.¹

Moreover, the Supreme Court rejected the argument that its holding in Burgett, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319, "necessitate[d] a different result." Id. at 30, 113 S.Ct. 517. As set forth above, in Burgett, the Court held that if a conviction is obtained in violation of Gideon, it cannot be used "either to support guilt or enhance punishment for another offense." Burgett, 389 U.S. at 115, 88 S.Ct. 258. Although Raley did not specifically address whether a valid waiver of counsel could be presumed, it distinguished its prior opinion in Burgett on the basis that, in Burgett, the right to counsel had not yet been recognized at the time of the defendant's trial. This language suggests that where the right to counsel is well established, it may be permissible to presume from a silent record that the waiver of counsel is valid.

More to the point, relying on the Supreme Court's decision in Iowa v. Tovar, 541 U.S. 77, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004), this Court has held in several unpublished opinions that a defendant who collaterally attacks a prior conviction, which is being used to enhance his federal sentence, bears the burden of proving that his waiver of counsel was constitutionally invalid.² In Iowa v. Tovar, a defendant in state court was challenging the use of a prior conviction for purposes of enhancement, alleging that his waiver of counsel in the prior conviction was not valid because the admonitions were inadequate regarding the dangers of self-representation. 541 U.S. at 85-86, 124 S.Ct. 1379. On direct appeal, the Iowa Supreme Court found the prior conviction's plea colloquy constitutionally inadequate because the defendant had not been specifically warned that waiving counsel involves the risk of overlooking a viable defense and also that, by waiving counsel, the opportunity to have independent advice regarding whether to plead guilty is lost. Id. at 86-87, 124 S.Ct. 1379; State v. Tovar, 656 N.W.2d 112 (Iowa 2003). The United States Supreme Court disagreed and held that those particular warnings were not mandated by the Sixth Amendment. Id. at 81, 124 S.Ct. 1379. Instead, the Court ruled that the Constitution requires only that the court admonish the accused of the nature of the charges, his right to be counseled with respect to his plea, and the range of punishment. Id. More specifically, the Supreme Court opined that "in a collateral attack on an uncounseled conviction, it is the defendant's burden to prove that he did not competently and intelligently waive his right to the assistance of counsel." Id. at 92, 124 S.Ct. 1379 (citing Watts v. State, 257 N.W.2d 70, 71 (Iowa 1977)).³

Interpreting the preceding language, this Court has explained that in Tovar, "the Supreme Court [has] made clear that state law, not federal law, allocates the appropriate burden of proof in a collateral attack on an uncounseled...