United States v. Saenz-Macias , 233 F. App'x 374 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 29, 2007
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 05-51506
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MANUEL SAENZ-MACIAS,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas, El Paso
USDC No. 3:05-CR-870-ALL
_________________________________________________________________
Before JONES, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Manuel Saenz-Macias (“Saenz”) appeals his 57-month sentence
for illegal reentry. We AFFIRM.
I.
On March 27, 2005, Saenz pleaded guilty to illegal reentry, in
violation of 8 U.S.C. § 1326. The presentence report (“PSR”)
recommended a Guidelines sentence of 57 to 71 months imprisonment,
based on a total offense level of 21 and a criminal history
category of IV. The criminal history category of IV was based on
7 criminal history points: 3 points for a 1994 assault conviction,
*
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this opinion should not be published and is not precedent except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.
1 point for a 2001 DWI conviction, 1 point for a 2004 DWI
conviction, and 2 points for committing the instant offense while
on probation for the 2004 DWI conviction. For both DWI
convictions, the PSR noted that Saenz appeared pro se and received
a suspended sentence, but the evidence did not show whether Saenz
had waived his right to counsel. The district court sentenced
Saenz to 57 of months imprisonment, at the bottom of the Guidelines
range.
II.
Saenz appeals his sentence, arguing that his two DWI
convictions, which were used for the sentence enhancement, are
unconstitutional under Alabama v. Shelton, 535 U.S. 654 (2002).
Under Shelton, when a defendant is given a suspended sentence, he
has a constitutional right to counsel. Id. at 674. Contending
that he was not afforded counsel, Saenz argues that the district
court erred by including the two DWI convictions in his criminal
history score.1
Because Saenz did not object below, we review under the plain
error standard. See United States v. Villegas, 404 F.3d 355, 358
(5th Cir. 2005). “This court finds plain error when: (1) there was
an error; (2) the error was clear and obvious; and (3) the error
affected the defendant’s substantial rights.” Id. “If all three
1
Saenz may collaterally attack his previous convictions
because he asserts a violation of his right to counsel. See Custis
v. United States, 511 U.S. 485, 493-95 (1994).
2
conditions are met an appellate court may then exercise its
discretion to notice a forfeited error but only if (4) the error
seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. at 358-59. Because plain error only
exists if the error affected the defendant’s substantial rights,
“we will uphold a defendant’s sentence if on remand the district
court could reinstate the same sentence by relying on a reasonable
application of the Sentencing Guidelines.” United States v.
Wheeler, 322 F.3d 823, 828 (5th Cir. 2003).
Here, we find no plain error in the district court’s inclusion
of Saenz’s 2004 DWI conviction and related probation violation in
his criminal history score, because if error there be, it was not
plain. Saenz pleaded guilty in January 2004, twenty months after
the Supreme Court decided Shelton in May 2002. Therefore, the
question is whether twenty months was a sufficient amount of time
to establish a presumption of regularity, that is, a presumption
that the Colorado courts were aware of Shelton and properly applied
Shelton to Saenz’s 2004 DWI proceedings by offering him court-
appointed counsel, which he then would have waived. The answer is
not readily ascertainable, however, because the law is unclear as
to whether twenty months is a sufficient amount of time to
establish a presumption of regularity. Compare Burgett v. Texas,
389 U.S. 109, 114-15 (1967) (no presumption of waiver where the law
in question had not yet been established at the time of the prior
conviction), with Parke v. Raley, 506 U.S. 20, 30 (1992)
3
(presumption of regularity existed where the law in question had
been established “for nearly a quarter century”).2 Accordingly,
any error was not plain. See United States v. Palmer, 456 F.3d
484, 491 (5th Cir. 2006) (“A ‘plain’ error is one which is clear
under current law.”).
Additionally, we find no plain error in the district court’s
inclusion of Saenz’s 2001 DWI conviction in his criminal history
score, because the error did not affect his substantial rights.
Saenz pleaded guilty to his 2001 DWI conviction before the Supreme
Court decided Shelton; therefore, under Burgett, we presume Saenz
did not waive his right to counsel and the conviction was
unconstitutional. See Burgett, 389 U.S. at 114-15. Accordingly,
the district court erred by including Saenz’s 2001 DWI conviction
in his criminal history. The inclusion, however, did not
constitute plain error because it did not affect Saenz’s
substantial rights. Without the inclusion of the 2001 DWI
conviction, Saenz would have received 6 criminal history points,
yielding a criminal history category of III. A criminal history
category of III, when combined with Saenz’s total offense level of
21, would result in a Guidelines range of 46 to 57 months. Thus,
even if we were to remand, the district court could reinstate the
2
Iowa v. Tovar, 541 U.S. 77 (2004), is not on-point because
there the evidence clearly demonstrated that the defendant waived
his right to counsel. See id. at 82. Here, the evidence does not
show whether Saenz waived his right to counsel.
4
same sentence of 57 months. Accordingly, under the plain error
standard of review, we leave the district court judgment in place.
See Wheeler, 322 F.3d at 828.
III.
Saenz also argues that his sentence violates due process
because it exceeds the statutory maximum sentence for violations of
8 U.S.C. § 1326(a). As this argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), it
fails.
IV.
For the foregoing reasons, Saenz’s sentence is
AFFIRMED.
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