United States v. Escovar-Madrid , 109 F. App'x 641 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4303
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FRANCISCO ESCOVAR-MADRID, a/k/a Victor
Valazguez,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(CR-02-05)
Submitted: January 30, 2004 Decided: September 29, 2004
Before WIDENER, NIEMEYER, and LUTTIG, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David W. Lease, SMITH, LEASE & GOLDSTEIN, L.L.C., Rockville,
Maryland, for Appellant. Thomas M. DiBiagio, United States
Attorney, P. Michael Cunningham, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Francisco Escovar-Madrid appeals his conviction and
eighty-four month sentence for illegally reentering the United
States after having been deported, in violation of 8 U.S.C. § 1326(a), (b) (2000). Finding no error, we affirm.
First, Escovar-Madrid asserts that the district court
erred in finding that his request to waive his right to counsel and
assert his right to self-representation was made knowingly and
intelligently. Determination of a waiver of the right to counsel
is a question of law to be reviewed de novo. United States v.
Singleton, 107 F.3d 1091, 1097 n.3 (4th Cir. 1997). An assertion
of the right to self-representation must be: (1) clear and
unequivocal; (2) knowing, intelligent and voluntary; and
(3) timely. United States v. Frazier-El, 204 F.3d 553, 558 (4th
Cir. 2000); see United States v. Gallop, 838 F.2d 105, 110 (4th
Cir. 1988). Upon review of the record, we conclude that Escovar-
Madrid’s waiver was knowingly, voluntarily, and intelligently made.
Second, Escovar-Madrid argues that the jury should have
been instructed that whether he had been deported following a
conviction for an aggravated felony was an element of the offense.
The Supreme Court rejected this argument in Almandarez-Torres v.
United States, 523 U.S. 224 (1998). Escovar-Madrid contends that
this decision was implicitly overruled by the later decision in
Apprendi v. New Jersey, 530 U.S. 466 (2000). This court rejected
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this precise claim in United States v. Sterling, 283 F.3d 216, 220
(4th Cir. 2002). Thus, this claim is meritless.
Accordingly, we affirm Escovar-Madrid’s conviction and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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