United States v. Isaias Perez-Herrera

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-13861 March 2, 2007
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 06-00006-CR-WCO-01-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISAIAS PEREZ-HERRERA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 2, 2007)
Before ANDERSON, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Isaias Perez-Herrera appeals his sentence for illegal reentry by a deported
alien, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Perez-Herrera contends the
district court erred in calculating his criminal history under the Sentencing
Guidelines by assessing one point for convictions to which he pled guilty without
counsel in 2002. We conclude Perez-Herrera failed to prove his prior convictions
were presumptively void and affirm the district court’s sentence.
We review the district court's factual findings for clear error and its
application of the Guidelines to those facts de novo. United States v. Cooper, 203
F.3d 1279, 1286 (11th Cir. 2000). Whether a defendant knowingly and voluntarily
waived his right to counsel is a mixed question of law and fact subject to de novo
review. Greene v. United States, 880 F.2d 1299, 1303 (11th Cir. 1989).
As a general rule, we do “not allow a defendant to collaterally attack in the
sentence proceeding convictions being used to enhance his sentence.” United
States v. Jackson, 57 F.3d 1012, 1018 (11th Cir. 1995) (citation omitted).
However, “when a defendant, facing sentencing, sufficiently asserts facts that
show that an earlier conviction is ‘presumptively void,’ the Constitution requires
the sentencing court to review this earlier conviction before taking it into
account.” United States v. Roman, 989 F.2d 1117, 1120 (11th Cir. 1993) (en
banc). We have suggested that “presumptively void” convictions are rare and
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“perhaps limited to uncounseled convictions.” Id.
The defendant bears the burden to prove his uncounseled conviction is
presumptively void by demonstrating “that he did not competently and
intelligently waive his right to the assistance of counsel.” Iowa v. Tovar, 124 S.
Ct. 1379, 1390 (2004); see also United States v. Cooper, 203 F.3d 1279, 1287
(11th Cir. 2000) (holding the defendant has the burden “to lay a factual foundation
for collateral review on the grounds that the state conviction was ‘presumptively
void.’ ”).
The guilty plea form Perez-Herrera signed in 2002 stated in English that he
waived his right to an attorney; it stated in Spanish that the court would appoint an
attorney to represent him at no charge if he could not afford one. Perez-Herrera
claims the 2002 form did not inform him of the dangers of proceeding pro se, and
argues the absence of evidence of a more thorough inquiry by the municipal court
renders the 2002 convictions presumptively void.
Perez-Herrera did not present any evidence beyond the guilty plea form to
support his contention that his waiver of counsel for the 2002 hearing was not
knowing or voluntary. See Roman, 989 F.2d at 1118 (concluding defendant
provided insufficient factual support for his contentions his earlier convictions
were presumptively void to allow the sentencing court to review them). Perez-
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Herrera failed to sustain his burden of showing the 2002 convictions were
presumptively void. Therefore, the district court did not err in calculating Perez-
Herrera’s criminal history. Accordingly, we affirm Perez-Herrera’s sentence.
AFFIRMED.
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