United States v. Rubio, 2010 U.S. App. LEXIS 26515

Rubio appeals his sentence for illegal re-entry after deportation following a felony conviction.
The PSR assigned base level 8, +4 for a prior felony, -2 for acceptance, and 11 criminal history points (Category V).
Rubio challenged the PSR’s inclusion of two uncounseled state misdemeanor convictions as valid for history purposes.
He contends the waivers of counsel for those misdemeanor cases were untimely, thus invalid.
The district court could not clearly identify when the waivers occurred, but overruled Rubio’s objections and sentenced him to 24 months and 3 years of supervised release.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Are the uncounseled misdemeanor convictions properly counted?	Rubio bears burden to show invalid waiver.	Government may rely on judgments showing waiver.	Rubio bears burden; waiver lacking clear timing is insufficient to invalidate
Did Rubio prove an invalid waiver of counsel at plea negotiations?	Waiver not shown to have occurred prior to plea negotiations.	Judgments show waiver; timing unclear but presumption of regularity applies.	Waiver not proven invalid; conviction properly counted

Iowa v. Tovar, 541 U.S. 77 (2004) ( Sixth Amendment collateral review burden when uncounseled convictions are challenged)
Padilla v. Kentucky, 130 S. Ct. 1473 (2010) (plea bargaining as a critical stage for counsel)
Custis v. United States, 511 U.S. 485 (1994) (collateral review allowed for Sixth Amendment challenges to prior convictions used for enhancement)
Mallard v. Cain, 515 F.3d 379 (5th Cir. 2008) (burden of proof allocation in collateral attacks follows state law)
Ex parte Guzman, 589 S.W.2d 461 (Tex.Crim.App.1979) (state-law burden of proof in collateral attacks)
Wilson v. State, 44 S.W.3d 602 (Tex.App.2001) (presumption of regularity in judgments where waiver timing is unclear)
Galloway v. State, 578 S.W.2d 142 (Tex.Crim.App.1979) (burden on applicant for collateral attack on conviction)