United States v. Pino Gonzalez
636 F.3d 157
| 5th Cir. | 2011Background
- Gonzalez appeals his sentence for illegal reentry after deportation, challenging inclusion of a 2008 SC misdemeanor in his criminal-history calculation.
- PSR assigned seven criminal-history points, three from the SC misdemeanor, yielding a IV category and an advisory range of 57–71 months.
- Gonzalez argued the SC conviction was invalid for sentencing because he was not represented by counsel and did not constitutionally waive counsel.
- Transcript of the SC plea colloquy showed a court informing him of counsel, with questions about waiving the right to counsel; no explicit requirement to inform about court-appointed counsel.
- District court overruled the objection and sentenced him to 60 months; removal of the SC conviction would have yielded category III and 46–57 months.
- The court applied a standard of de novo review for guidelines interpretation and clear-error review for facts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the uncounseled SC waiver was valid for sentencing purposes | Gonzalez argues waiver was not knowing or intelligent because right to appointed counsel was not expressly discussed. | Gonzalez contends the waiver should be invalid for purposes of calculating criminal history. | Waiver is valid; SC conviction properly counted. |
| Whether collateral review burden shows uncounseled conviction was invalid | Gonzalez bears burden to prove lack of knowing, intelligent waiver under SC law. | State presumption of regularity supports validity of waiver. | Gonzalez failed to carry burden; waiver valid under collateral-review standards. |
| Applicable standard of review for sentencing determinations | N/A | N/A | The Fifth Circuit applies de novo review to guidelines interpretations and clear-error review to facts. |
Key Cases Cited
- Iowa v. Tovar, 541 U.S. 77 (U.S. 2004) (waiver of counsel must be knowing, voluntary, intelligent; no fixed formula required)
- Mallard v. Cain, 515 F.3d 379 (5th Cir. 2008) (factors for voluntariness of waiver; less formal colloquy at pretrial stage)
- United States v. Longstreet, 603 F.3d 273 (5th Cir. 2010) (collateral review for Sixth Amendment right to counsel when conviction used to enhance sentence)
- Parke v. Raley, 506 U.S. 20 (U.S. 1992) (prior experience with criminal justice informs waiver of rights)
- United States v. Guerrero-Robledo, 565 F.3d 940 (5th Cir. 2009) (state burden on proving uncounseled waiver and reliance on presumption of regularity)
- Payne, 504 S.E.2d 335 (SC 1998) (presumption of regularity for final judgments in collateral challenges)