United States v. Acuna-Reyna, 677 F.3d 1282

Acuna-Reyna, a Peruvian citizen, entered the U.S. illegally in 1998 and accumulated Georgia convictions, including a 2002 uncounseled misdemeanor DUI with 12 months’ probation and a $940 fine; no evidence of counsel or waiver.
In 2008 an immigration judge ordered removal; he reentered illegally after deportation and was later prosecuted for illegal reentry after deportation under 8 U.S.C. §1326(a),(b)(1).
In 2010 he pled guilty to the illegal reentry charge; the PSR calculated a total of 10 criminal history points, placing him in category V, with an advisory range of 21–27 months, due in part to one point from the uncounseled DUI conviction.
Acuna-Reyna objected at sentencing, arguing the DUI conviction was uncounseled and presumptively void; the government argued Sixth Amendment rights did not attach for a misdemeanor sentence of probation only.
The district court assessed a criminal history point for the uncounseled DUI conviction and sentenced him to 27 months’ imprisonment; on appeal, the parties disputed the proper remedy if the Sixth Amendment was violated, but the court ultimately affirmed the sentence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
May a sentencing court add a criminal history point for an uncounseled misdemeanor DUI conviction?	Acuna-Reyna argues the DUI conviction is void for lack of counsel and cannot enhance sentencing.	Acuna-Reyna’s argument is supported by the Sixth Amendment; the conviction should not count.	Yes; the point may be counted based on the monetary fine portion, despite uncounseled stand-alone probation.
If the Sixth Amendment was violated, is the remedy to vacate the probation portion and preserve other sentence elements for the Guidelines calculation?	Remedy should purge the invalid probation portion to avoid Sixth Amendment harm.	The government argues the monetary fine portion remains valid and may support a criminal history point.	Remedy is not to nullify the entire sentence; the monetary fine portion can still support the point, so the calculation remains valid.

Shelton v. Alabama, 535 U.S. 654 (2002) ( Sixth Amendment counsel right for misdemeanors potentially punishable by imprisonment; invalid suspended sentence abolishes that portion.)
Ortega v. United States, 94 F.3d 764 (2d Cir. 1996) (conviction and monetary portion valid for criminal history despite possible Sixth Amendment issues.)
United States v. Jackson, 493 F.3d 1179 (10th Cir. 2007) (conviction and monetary sentence may sustain criminal history point even if suspended portion violated.)
Scott v. Illinois, 440 U.S. 367 (1979) (uncounseled conviction may be valid for purposes of sentence calculation.)
Nichols v. United States, 511 U.S. 738 (1994) (uncounseled conviction may be used to enhance sentence with related monetary penalty.)
United States v. Moskovits, 86 F.3d 1303 (3d Cir. 1996) (vacatur of invalid portion while preserving valid conviction for sentence enhancement.)
United States v. White, 529 F.2d 1390 (8th Cir. 1976) (uncounseled conviction preserved for purposes of fines and related sanctions.)