U.S. v. Perez-Macias

• Decision Date: 23 June 2003
• Docket Number: No. 02-41403.,02-41403.
• Citation: 335 F.3d 421
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ricardo PEREZ-MACIAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

335 F.3d 421

UNITED STATES of America, Plaintiff-Appellee, v. Ricardo PEREZ-MACIAS, Defendant-Appellant.

No. 02-41403.

United States Court of Appeals, Fifth Circuit.

June 23, 2003.

Mitchel Neurock, Laredo, TX, James Lee Turner, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellee.

Roland E. Dahlin, II, Fed. Pub. Def., Jose I. Gonzalez-Falla and Brent Evan Newton, Asst. Fed. Pub. Defenders, Houston, TX, for Defendant-Appellant.

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

ON PETITION FOR REHEARING

(Opinion April 2, 2003, 5th Cir.2003, 327 F.3d 384)

Before KING, Chief Judge, and DAVIS, Circuit Judge, and ROSENTHAL, District Judge.^*

KING, Chief Judge:

The petition for rehearing is DENIED. This court's opinion, 327 F.3d 384 (5th Cir.2003), is hereby withdrawn, and the following opinion is substituted:

Ricardo Perez-Macias appeals his conviction and sentence, arguing that under the Supreme Court's recent decision in Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002), his prior uncounseled misdemeanor conviction for illegal entry under 8 U.S.C. § 1325(a), for which he received a probated sentence, violated his Sixth Amendment right to counsel and therefore cannot form the predicate for the instant felony conviction for illegal entry under § 1325(a). We affirm.

I. FACTUAL AND PROCEDURAL HISTORY

A. The First Offense

On May 7, 2002, Defendant-Appellant Ricardo Perez-Macias¹ illegally entered the United States; he was arrested the next day. On May 9, he was charged in federal district court in Laredo with a misdemeanor offense of illegal entry in violation of 8 U.S.C. § 1325(a) (2000).² Perez-Macias is a Mexican citizen with no legal status in the United States who has entered the United States illegally approximately fifteen times.³ He appeared pro se, entered a plea of guilty, and was sentenced to a three-year term of unsupervised probation and a $10 special assessment. The Immigration and Naturalization Service then allowed Perez-Macias to voluntarily return to Mexico.

B. The Second Offense

Less than two weeks later, on May 20, 2002, Perez-Macias crossed the Rio Grande River and again illegally entered the United States. He was arrested by border patrol agents in Three Rivers, Texas, on May 21, 2002.

On June 13, 2002, Perez-Macias was indicted in federal district court in Corpus Christi on one felony count of illegal entry in violation of 8 U.S.C. § 1325(a)(1) (2000)⁴ and two counts of transporting illegal aliens in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and 1324(a)(1)(B)(ii) (2000). Because of this second offense, the magistrate judge who sentenced Perez-Macias in the first case began proceedings to revoke Perez-Macias's probation. The district court in this case sought and received transfer of the probation revocation proceedings to it in order to consolidate the revocation and the sentencing on the second offense.

As part of a plea agreement, Perez-Macias agreed to plead guilty to the illegal entry count in exchange for the United States's agreement to recommend the maximum credit for acceptance of responsibility and to dismiss the other two counts. The district court accepted Perez-Macias's guilty plea and considered the appropriate sentence. The district court sentenced Perez-Macias for the charged felony illegal entry offense, rather than a misdemeanor offense, because he had previously been convicted of illegal entry. The Presentence Report ("PSR") recommended Perez-Macias be sentenced with an offense level of 6.⁵ This reflected a base offense level of 8 for a repeat violation of 8 U.S.C. § 1325(a) with two levels subtracted for acceptance of responsibility. See U.S. SENTENCING GUIDELINES MANUAL § 2L1.2 (2001). The PSR also added three points for criminal history: one for Perez-Macias's prior illegal entry conviction and two because he was on probation for that offense when he committed the instant offense. See id. § 4A1.1. These three criminal history points put Perez-Macias in a criminal history category of II.

Perez-Macias objected to the use of his prior uncounseled misdemeanor to enhance his sentence, arguing that under Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002), the misdemeanor conviction was obtained in violation of his Sixth Amendment right to counsel. Specifically, Perez-Macias objected to the use of his prior conviction to both: (1) enhance his offense from misdemeanor illegal entry (for which the maximum sentence is six months) to felony illegal entry (for which the maximum sentence is two years) under 8 U.S.C. § 1325(a) and (2) add three criminal history points to place him in a criminal history category of II under the Sentencing Guidelines.

The district court agreed with Perez-Macias, finding that Shelton bars the use of his prior uncounseled misdemeanor because Perez-Macias received probation in that case.⁶ Therefore, the district court relieved Perez-Macias of the probation sentence in the first case and left only the $10 special assessment.⁷ The district court then determined that, having vacated the sentence of probation from the misdemeanor conviction, that conviction could permissibly be used to enhance the instant offense from a misdemeanor to a felony. Alternatively, the district court held that 8 U.S.C. § 1325(a)'s felony enhancement provision, which states that a prior "commission" of an illegal entry offense may be used to enhance a subsequent offense, does not require a "conviction," so that even if Perez-Macias's previous conviction was invalid under Shelton, his first offense may still be used to enhance his second offense. After holding that the previous conviction could be used to enhance the offense under § 1325(a), the district court decided to use the prior conviction, but not the prior (and now vacated) sentence of probation, to determine Perez-Macias's criminal history category. The district court thus gave Perez-Macias one criminal history point (rather than three), but then departed upward to a criminal history category of III (under U.S. SENTENCING GUIDELINES MANUAL § 4A1.3) because Perez-Macias had previously and repeatedly illegally entered the United States. The district court sentenced Perez-Macias to eight months in prison, one year of supervised release, and a $100 special assessment. The district court then entered an order dismissing the probation revocation proceedings because it had "delet[ed] the term of probation."⁸

Perez-Macias appealed. He now argues that: (1) under Alabama v. Shelton, his prior uncounseled misdemeanor conviction cannot be used to enhance his offense from a misdemeanor to a felony and (2) the district court erred in its alternative holding that 8 U.S.C. § 1325(a) requires only "commission" of an offense and not a "conviction"⁹

II. STANDARD OF REVIEW

Constitutional questions are reviewed by this court de novo. E.g., United States v. Aguilar-Tamayo, 300 F.3d 562, 564 (5th Cir.2002). Issues of statutory interpretation are also reviewed de novo. E.g., United States v. Hanafy, 302 F.3d 485, 487 (5th Cir.2002).

III. DISCUSSION

A. Whether Perez-Macias's prior uncounseled misdemeanor conviction can be used to enhance his current illegal entry offense from a misdemeanor to a felony

Perez-Macias argues that his prior uncounseled misdemeanor cannot be used to enhance the offense in this case from a misdemeanor to a felony. Specifically, he reads the Supreme Court's recent ruling in Alabama v. Shelton, holding that there is a Sixth Amendment right to counsel in misdemeanor cases where a suspended sentence is imposed, to require counsel (or a valid waiver of counsel) in misdemeanor cases where only probation is imposed. Assuming that his prior conviction was unconstitutional, then, Perez-Macias argues it cannot be used to enhance his current offense from a misdemeanor to a felony even though the district court vacated the sentence of probation.

The United States argues that Perez-Macias's prior misdemeanor may be used to enhance his current offense because Shelton applies to require counsel only when suspended sentences, and not when stand-alone sentences of probation, are imposed. The United States argues that a defendant sentenced to probation does not have a Sixth Amendment right to counsel so long as he never receives a sentence of imprisonment. The United States further argues that even if Shelton applies to require counsel before a defendant may be sentenced to imprisonment upon revocation of his probation, because the district court in this case vacated the sentence of probation for the first offense, Perez-Macias could never be sentenced to prison for that offense. Hence, his previous conviction may be used to enhance his sentence for the current offense.

The district court determined that Shelton gave Perez-Macias a Sixth Amendment right to counsel in his first case because he was sentenced to probation. The district court then vacated Perez-Macias's sentence of probation in the first case and held that the first conviction could permissibly be used to enhance the current offense from a misdemeanor to a felony under 8 U.S.C. § 1325(a).

The Supreme Court has explained that a defendant has a Sixth Amendment right to counsel in a misdemeanor case only under certain circumstances.¹⁰ In Argersinger v. Hamlin, the Supreme Court held that "absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial." 407 U.S. 25, 37, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) (emphasis added). In Scott v. Illinois, the Court clarified that the right to counsel only applies where the defendant is actually sentenced to imprisonment and not merely where imprisonment is an authorized penalty.¹¹ See 440 U.S. 367, 370-74, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979). In Nichols v. United States, the Court went one step further, explaining...