United States v. Perez-Macias , 335 F.3d 421 ( 2003 )


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  •                                                       United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS           April 2, 2003
    FOR THE FIFTH CIRCUIT
    Charles R. Fulbruge III
    Clerk
    No. 02-41403
    UNITED STATES OF AMERICA
    Plaintiff - Appellee
    v.
    RICARDO PEREZ-MACIAS
    Defendant - Appellant
    Appeal from the United States District Court
    for the Southern District of Texas
    Before KING, Chief Judge, and DAVIS, Circuit Judge, and
    ROSENTHAL, District Judge.*
    KING, Chief Judge:
    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
     (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
    *
    United States District Judge Lee H. Rosenthal of the
    Southern District of Texas, sitting by designation.
    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
    1
    The defendant explained in the sentencing hearing for
    his first offense that his last name is actually Perez-Marcias,
    not Perez-Macias. However, because both parties and all of the
    court documents refer to the defendant as Perez-Macias, we will
    as well.
    2
    The statute provides:
    Any alien who (1) enters or attempts to enter the
    United States at any time or place other than as
    designated by immigration officers . . . shall, for the
    first commission of any such offense, be fined under
    title 18 or imprisoned not more than 6 months, or both,
    and, for a subsequent commission of any such offense,
    be fined under title 18 or imprisoned not more than 2
    years, or both.
    
    8 U.S.C. § 1325
    (a) (2000).
    3
    Though Perez-Macias entered the United States illegally
    many times, he was only prosecuted twice, for the May 7, 2002
    offense and for the May 20, 2002 offense.
    2
    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
    4
    The indictment charged:
    On or about May 20, 2002, in the Southern District of
    Texas and within the jurisdiction of the Court, the
    defendant, RICARDO PEREZ-MACIAS, an alien, having been
    convicted previously on May 9, 2002, for illegally
    entering the United States in violation of Title 8,
    United States Code, Section 1325, did knowingly enter
    the United States at a place other than as designated
    by the immigration officers.
    3
    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 U.S. SENTENCING GUIDELINES MANUAL § 4A1.1 (2001).     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
     (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
    5
    The district court used the 2001 version of the United
    States Sentencing Guidelines.
    4
    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
    6
    The district court considered, and rejected, the United
    States’s argument that Perez-Macias knowingly and intelligently
    waived his right to counsel in the prior proceeding. The United
    States has not appealed this holding.
    7
    The district court explained:
    Here’s what we’re going to do: We’re going to give
    you both something to appeal. . . . [W]ith respect to
    the Laredo cause number that’s been transferred up to
    me, 02-1759M, that probationary period of two [sic]
    years, he is relieved of that probation and he no
    longer stands subject to that probation. However, the
    conviction remains as well as does his requirement to
    pay $10. . . .
    With respect to Cause Number 02-168 out of this
    court, the Court does not find that he was under a
    sentence of probation. The Court, I guess, would
    presume – and I think it’s fair to presume – that that
    would have to be valid probation. And having
    determined in a contemporaneous proceeding that it is
    an invalid probation, the Court will not award those
    two points.
    5
    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
    8
    Neither Perez-Macias nor the United States has appealed
    this order or questioned the power of the district court to
    modify the sentence in the first case without holding a probation
    revocation hearing.
    9
    Perez-Macias does not argue on appeal that his prior
    conviction was unconstitutionally used to calculate his criminal
    history category or that the district court erred in departing
    upward in determining his criminal history category.
    6
    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
    7
    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 (1972) (emphasis added).
    In Scott v. Illinois, the Court clarified that the right to
    10
    In contrast to a misdemeanor case, a defendant charged
    with a felony always has a Sixth Amendment right to counsel. See
    Gideon v. Wainwright, 
    372 U.S. 335
    , 339-45 (1963).
    8
    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 (1979).    In Nichols v.
    United States, the Court went one step further, explaining that
    an uncounseled misdemeanor conviction that was valid under Scott
    because no term of imprisonment was imposed may be used to
    enhance the penalty for a subsequent offense.       See 
    511 U.S. 738
    ,
    748-49 (1994).
    In Alabama v. Shelton, the Court considered whether a
    defendant sentenced to a suspended sentence of imprisonment has a
    Sixth Amendment right to counsel.      See 
    535 U.S. 654
    , 
    122 S. Ct. 1764
    , 1767 (2002).   Shelton was convicted of third-degree assault
    in Alabama state court and was sentenced to a suspended 30-day
    prison sentence, two years’ unsupervised probation, and monetary
    penalties.   See id. at 1767-68.    The Court held that a suspended
    sentence is a “term of imprisonment” requiring counsel under
    Argersinger and its progeny.     See id. at 1767.   The Court
    explained that “[a] suspended sentence is a prison term imposed
    for the offense of conviction.     Once the prison term is
    triggered, the defendant is incarcerated not for the probation
    violation, but for the underlying offense.”      Id. at 1770.
    Shelton did not address the sentence of probation at issue
    11
    Perez-Macias suggests that we hold that there is a
    right to counsel in any case where imprisonment is an authorized
    punishment. Because the Supreme Court has previously rejected
    that argument, see Scott, 
    440 U.S. at 370-74
    , we reject the
    argument as well.
    9
    in this case because a suspended sentence is not the same as a
    stand-alone sentence of probation.     The sentence under
    consideration in Shelton was a suspended sentence coupled with
    probation, while in this case, Perez-Macias received probation
    without a suspended sentence.12   Many, if not all, states impose
    probation only in connection with a suspended sentence.         See
    Shelton, 
    122 S. Ct. at 1776
     (noting “the Alabama Attorney
    General’s acknowledgment at oral argument that he did not know of
    any State that imposes, postconviction . . . a term of probation
    unattached to a suspended sentence”).    In contrast, in the
    federal system, probation is available as a stand-alone sentence
    and suspended sentences are not used.     See U.S. SENTENCING
    GUIDELINES MANUAL ch. 7, introductory cmt. (2001) (“The statutory
    authority to ‘suspend’ the imposition or execution of a sentence
    in order to impose a term of probation was abolished upon
    implementation of the sentencing guidelines.     Instead, the
    Sentencing Reform Act recognized probation as a sentence in
    itself.”); see also 
    18 U.S.C. § 3561
     (authorizing a sentence of
    probation).   None of our sister circuits has yet addressed how
    Shelton applies to federal stand-alone probation sentences.
    A suspended sentence is conceptually different from a
    sentence of probation.   If a defendant receives a suspended
    12
    Perez-Macias was also sentenced to a $10 special
    assessment, but this fine is not relevant to the Sixth Amendment
    analysis because Scott made it clear that imposition of a fine
    does not trigger the right to counsel. See Scott, 
    440 U.S. at 368-74
    .
    10
    sentence, he is sentenced to a term of imprisonment that is
    suspended.   See Shelton, 
    122 S. Ct. at 1770
    .    Suspended sentences
    are usually imposed in conjunction with probation so that if a
    defendant commits another crime or violates a condition of
    probation, his suspended sentence is activated.     See 
    id.
        If a
    defendant receives only a sentence of probation, he is sentenced
    to community release with conditions; he does not receive a
    sentence of imprisonment.13   See, e.g., Wayne R. LaFave et al.,
    Criminal Procedure 1199-1200 (3d ed. 2000).     If a defendant
    serving a stand-alone probation sentence violates a condition of
    probation, his probation may be revoked after a hearing and he
    may be sentenced to any punishment that was originally available
    at sentencing.   See 
    18 U.S.C. § 3565
     (2000); FED. R. CRIM. P.
    32.1; see also Gagnon v. Scarpelli, 
    411 U.S. 778
    , 782, 787-90
    (1973) (holding that a defendant has a due-process right to a
    hearing before his probation is revoked).     At a probation
    revocation hearing, federal law grants the defendant a right to
    counsel, a right to written notice of the violation, disclosure
    of evidence against him, the opportunity to hear and present
    evidence, and the opportunity to question adverse witnesses.         See
    18 U.S.C. § 3006A(a)(1)(c) (2000); FED. R. CRIM. P. 32.1.      The
    district court does not retry issues of guilt or innocence; the
    only issue is whether the defendant violated a condition of
    13
    Probation should be distinguished from supervised
    release: probation is imposed instead of imprisonment, while
    supervised release is imposed after imprisonment. See U.S.
    SENTENCING GUIDELINES MANUAL ch. 7, introductory cmt. (2001).
    11
    probation and what should be done about it.    See United States v.
    Francischine, 
    512 F.2d 827
    , 829 (5th Cir. 1975).    The issue of
    whether there was a violation need not be determined beyond a
    reasonable doubt and the Federal Rules of Evidence generally need
    not be followed.   See id.; FED. R. EVID. 1101(d)(3).
    The Shelton Court expressly refused to address whether its
    holding applies to a sentence of probation uncoupled with a
    suspended sentence.   Initially, the Court limited its holding to
    suspended sentences: “We hold that a suspended sentence that may
    ‘end up in the actual deprivation of a person’s liberty’ may not
    be imposed unless the defendant was accorded ‘the guiding hand of
    counsel’ in the prosecution for the crime charged.”     Shelton, 
    122 S. Ct. at 1767
     (quoting Argersinger, 
    407 U.S. at 40
    ) (emphasis
    added).   The Court then noted that though Alabama “invite[d]
    [them] to regard two years’ probation for Shelton as a separate
    and independent sentence” and hold that “probation uncoupled from
    a prison sentence should trigger no immediate right to appointed
    counsel,” the Court would not consider that argument because
    “[t]here is not so much as a hint . . . in the decision of the
    Supreme Court of Alabama[] that Shelton’s probation term is
    separable from the prison term to which it was tethered.”
    Shelton, 
    122 S. Ct. at 1775-76
    .    The Court thus stated: “Absent
    any prior presentation of the position the State now takes, we
    resist passing on it in the first instance.”    Id. at 1776
    (citation omitted).   Shelton, by its very language, does not
    address the right to counsel in misdemeanor cases where a
    12
    defendant receives a stand-alone probation sentence.
    Further, we do not believe that the logic of Shelton compels
    extension of the right to counsel to cases where the defendant
    receives a sentence of probation uncoupled with a suspended
    sentence.   The key to the Supreme Court’s jurisprudence
    addressing the right to counsel in misdemeanor cases is whether
    the defendant receives a sentence of imprisonment.     See Nichols,
    
    511 U.S. at 749
     (“[A]n uncounseled misdemeanor conviction, valid
    under Scott because no prison term was imposed, is also valid
    when used to enhance punishment at a subsequent conviction.”)
    (emphasis added); Scott, 
    440 U.S. at 374
     (“[N]o indigent criminal
    defendant [may] be sentenced to a term of imprisonment unless the
    State has afforded him the right to assistance of appointed
    counsel in his defense.”); Argersinger, 
    407 U.S. at 37
     (“[A]bsent
    a knowing and intelligent waiver, no person may be imprisoned for
    any offense . . . unless he was represented by counsel at his
    trial.”) (emphasis added).   The Court has made it clear “that
    actual imprisonment is a penalty different in kind from fines or
    the mere threat of imprisonment” and that “actual imprisonment
    [i]s the line defining the constitutional right to appointment of
    counsel.”   Scott, 
    440 U.S. at 373
    .   The Shelton Court reaffirmed
    the “actual imprisonment” standard.    See 
    122 S. Ct. at 1769-70
    .
    Applying that standard to this case, we find the answer clear.      A
    defendant who receives a suspended sentence is given a term of
    imprisonment, while a defendant who receives a stand-alone
    sentence of probation is not.   Perez-Macias was sentenced to
    13
    probation, not to prison, and thus his previous conviction may be
    used to enhance his current offense.14
    At the same time, we are cognizant of the fact that a
    misdemeanor defendant sentenced to probation could,
    theoretically, receive a prison term upon revocation of his
    probation.   Though this mere threat of imprisonment does not
    dictate that the defendant be afforded counsel for his trial, the
    actual imposition of a term of imprisonment upon probation
    revocation may pose a Sixth Amendment problem.15   That is, it may
    be the case that a misdemeanor defendant who was convicted
    without counsel may not be sentenced to prison upon revocation of
    his probation.   We need not address that issue, however.    Here,
    the district court relieved Perez-Macias of the probation
    sentence for his first offense, leaving only a fine.    See Scott,
    
    440 U.S. at 370-74
     (holding there is no Sixth Amendment right to
    counsel when only a fine is imposed).    The district court then
    dismissed the pending probation revocation proceedings for that
    14
    We thus disagree with the district court’s holding that
    Shelton bars imposition of a sentence of probation on an
    uncounseled misdemeanor defendant who did not validly waive his
    right to counsel. Put simply, the district court erred in
    equating suspended sentences with probation.
    15
    In its brief to this court, the United States conceded
    that an uncounseled defendant sentenced to stand-alone probation
    who violates a condition of probation may not be sentenced to
    imprisonment at his probation revocation hearing. It stated that
    “if Perez had not validly waived counsel at the time of his
    original misdemeanor plea, then under Scott and Argersinger the
    sentencing court would not be permitted to impose a sentence to
    imprisonment upon revocation of Perez’s probation.” Upon inquiry
    from this court, the United States Attorney confirmed that this
    is also the position of the Department of Justice generally.
    14
    offense; neither party appeals that ruling.   Thus, Perez-Macias
    did not and cannot receive a term of imprisonment for his first
    offense.   As a result, there is no Sixth Amendment problem with
    Perez-Macias’s first conviction and it may be used to enhance the
    instant offense.   See Nichols, 
    511 U.S. at 748-49
    .
    B.    Whether the district court erred in alternatively
    holding that only commission of a prior offense, but
    not a conviction, is required to enhance a misdemeanor
    illegal entry offense to a felony under 
    8 U.S.C. § 1325
    (a)
    Because we affirm Perez-Macias’s conviction and sentence on
    the grounds that Perez-Macias’s prior conviction was validly used
    to enhance his current offense, we do not consider the district
    court’s alternative holding that 
    8 U.S.C. § 1325
    (a) requires only
    evidence of commission of an offense, and not a prior conviction,
    to enhance a misdemeanor illegal entry offense to a felony.
    IV.   CONCLUSION
    For the foregoing reasons, Perez-Macias’s conviction and
    sentence are AFFIRMED.
    15
    

Document Info

Docket Number: 02-41403

Citation Numbers: 335 F.3d 421, 2003 WL 21437060

Judges: Davis, King, Rosenthal

Filed Date: 4/2/2003

Precedential Status: Precedential

Modified Date: 11/5/2024

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