United States v. Gracia-Gracia , 86 F. App'x 709 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 30, 2004
Charles R. Fulbruge III
Clerk
No. 02-41756
c/w No. 02-41790
c/w No. 02-41791
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELEUTERIO GRACIA-GRACIA,
Defendant-Appellant.
Appeals from the United States District Court
for the Southern District of Texas
USDC No. B:02-CR-619-1
Before JONES, BENAVIDES and CLEMENT, Circuit Judges.
PER CURIAM:*
Eleuterio Gracia-Gracia appeals his illegal reentry
conviction and the revocation of the probationary term imposed
pursuant to his misdemeanor conviction for unlawful entry.
He argues that the imposition of a sentence of imprisonment upon
the revocation of his probationary term was plain error because he
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
was not advised of the dangers of self-representation when he
waived his right to counsel and pleaded guilty to unlawful entry.
Assuming arguendo that a direct appeal is the proper
avenue for Gracia-Gracia’s challenge, and that the factual
questions in regard to waiver of counsel are susceptible of review,
the record evidence shows that he validly waived his Sixth
Amendment right to counsel. With the aid of an interpreter, the
magistrate judge informed Gracia-Gracia three times of his right to
appointment of counsel and explained the maximum possible sentence
for his misdemeanor charge. Gracia-Gracia also signed a written
waiver drafted in his native Spanish, in which he acknowledged but
waived his right to appointment of counsel. Although Gracia-Gracia
was arraigned in a group, had only a sixth-grade education, and
could not speak English, he has never complained that he did not
understand the right to counsel or the consequence of its waiver.
Moreover, Gracia-Gracia was able to appreciate the value of that
right during his prior adjudication on the charge of alien
transportation. We therefore hold that Gracia-Gracia validly
waived his Sixth Amendment right. See Argersinger v. Hamlin, 407
U.S. 25, 37 (1972).
Gracia-Gracia concedes that the issue whether 8 U.S.C.
§ 1326(b)(1)&(2) is unconstitutional in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000), is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224 (1998), and he raises it only to
preserve its further review. We must follow the precedent set
2
in Almendarez-Torres “unless and until the Supreme Court itself
determines to overrule it.” United States v. Dabeit, 231 F.3d 979,
984 (5th Cir. 2000) (internal quotation and citation omitted).
AFFIRMED.
3