                         In the
 United States Court of Appeals
              For the Seventh Circuit
                      ____________

No. 06-3423
UNITED STATES OF AMERICA,
                                        Plaintiff-Appellee,
                            v.

JOSUE L. FELICIANO,
                                     Defendant-Appellant.
                      ____________
          Appeal from the United States District Court
             for the Western District of Wisconsin.
     No. 06-CR-038-C-01—Barbara B. Crabb, Chief Judge.
                      ____________
    ARGUED APRIL 17, 2007—DECIDED AUGUST 21, 2007
                     ____________


 Before KANNE, WOOD, and EVANS, Circuit Judges.
  WOOD, Circuit Judge. Josue Feliciano’s appeal focuses
on the district court’s reliance for purposes of a federal
sentence on an earlier misdemeanor conviction he re-
ceived in Florida, in a case where he proceeded without
counsel. Feliciano was before the federal court on charges
of distributing methamphetamine in Wisconsin, in viola-
tion of 21 U.S.C. § 841(a)(1). He pleaded guilty to those
charges. At his sentencing hearing, he objected to the
part of the pre-sentence report that recommended use of
the Florida conviction in calculating his criminal history
for purposes of the federal Sentencing Guidelines. The
district court overruled that objection, finding that
Feliciano had no constitutional right to counsel under the
2                                              No. 06-3423

circumstances presented there. The government concedes
that this finding was erroneous, but it argues that the
record supports a finding that Feliciano waived his right
to counsel in the Florida proceeding and urges us to
affirm his 55-month prison sentence on that basis.


                             I
  In January 2005, Florida police arrested Feliciano for
possessing cannabis. At his initial appearance on January
14, 2005, the court told Feliciano that he was going to
be released until his arraignment on January 31, 2005.
Feliciano indicated then that he wanted a lawyer, but the
court did not appoint one at that time. The judge told
Feliciano, “So you need to—either get an attorney or talk
to the judge at arraignment.”
  At arraignment, the judge advised Feliciano about the
offense with which he was charged and that he was fac-
ing up to a year of prison, up to a year of probation, and a
fine of up to $1000. The judge also told him that he had
the right to be represented by a lawyer and that one would
be appointed for him if he could not afford one. Feliciano
confirmed that he understood that he had the right to
counsel. Feliciano indicated that he wished to enter his
plea without the assistance of counsel, and he said that
he had read and understood everything on the written
plea form and the form for waiving counsel. He also signed
the written waiver form, which said “I hereby waive my
right to consult an attorney or to have an attorney ap-
pointed.” The judge then asked him how he wished to
plead, to which he responded “Guilty.”
  With both the completed plea and waiver forms in hand,
the judge then informed Feliciano that he had a right to a
court-appointed attorney and could speak to an attorney
before entering his plea or change his plea during the
No. 06-3423                                                 3

proceedings. Feliciano said that he understood. The judge
also assured Feliciano that he would not impose any jail
sentence for a plea of guilty, and that if the judge did so,
he would give Feliciano an opportunity to change his
plea. After granting this assurance, the judge then asked
Feliciano if he had read and understood everything
contained in the plea form and waiver form, and wished
to enter a plea without representation. Feliciano re-
sponded “Yes.”
  The judge next examined the voluntariness of Feliciano’s
plea in the standard manner. The judge confirmed that
Feliciano was thinking clearly, was not under the influence
of drugs, was not pressured or coerced to plead guilty, and
was not promised anything in exchange for his plea. The
judge informed him that he had the right to plead not
guilty, to a jury trial, to a presumption of innocence that
must be overcome by proof beyond a reasonable doubt, to
confront witnesses against him, to present evidence and
subpoena witnesses, and to remain silent or to testify.
Feliciano affirmed that he knew he was waiving those
rights by pleading guilty. The judge again asked him how
he wished to plead, and he again answered, “Guilty.” The
judge accepted his plea. Then, without offering Feliciano
a chance to withdraw his plea, the judge sentenced him
to two days in jail, with two days’ credit for time already
served, and one year of probation. (From a “glass half full”
perspective, this was consistent with the judge’s promise
not to give jail time, if by that he had meant additional jail
time; from the “glass half empty” perspective, it contra-
dicted the promise the judge had just made and gave rise
to the problems Feliciano was soon to face in Wisconsin.)
  One year later, in February 2006, Feliciano was in-
dicted on the methamphetamine charges in the Western
District of Wisconsin. In June 2006, he pleaded guilty to
one distribution count. Feliciano’s pre-sentence report
suggested that he had accrued three criminal history
4                                              No. 06-3423

points: one point for the Florida conviction and two points
for committing the federal offense while on probation
from the Florida conviction. Feliciano argued that he
should not receive any points for the Florida conviction
because that proceeding violated his right to counsel. The
district court rejected this objection on the ground that
Feliciano did not have a right to counsel in the Florida
proceedings. The court reasoned that because Feliciano
had already served the two days of incarceration that
the court imposed, he had effectively been sentenced only
to probation.


                            II
  On appeal, Feliciano argues that the district court erred
in assigning him three criminal history points for his
Florida conviction because he was denied his Sixth Amend-
ment right to counsel in that case. To succeed, Feliciano
must show that: (1) his sentencing proceeding in federal
court was a proper forum in which to mount a collateral
attack on his Florida conviction; (2) he had a right to
counsel at the Florida proceedings; and (3) he did not
waive his right to counsel.
  The Supreme Court has held that because a conviction
obtained in violation of the Sixth Amendment is “void,” it
would undermine the fundamental principles of Gideon v.
Wainwright, 372 U.S. 335 (1963), to enhance a sentence
with an invalid conviction and thereby further restrict
the defendant’s liberty. Custis v. United States, 511 U.S.
485, 494-95 (1994); see Johnson v. United States, 544 U.S.
295, 303 (2005). For purposes of the Sentencing Guide-
lines, if the defendant proves that a Sixth Amendment
violation occurred, the prior conviction cannot be counted
in his criminal history score. See 21 U.S.C. § 851(c)(2). He
is thus entitled to raise his argument about the Florida
proceeding now, for that limited purpose.
No. 06-3423                                                5

  The next question is whether Feliciano had a right to
counsel in the Florida proceedings. The district court
thought not and based its ruling on this ground. Feliciano
argues that he did have a right to counsel because he
was sentenced to imprisonment as punishment for his
crime, even though that punishment was satisfied by time
already served. The government concedes that Feliciano
had this right, and our independent examination of the
issue shows that it is correct to do so.
  The Supreme Court has held that, absent a knowing
and intelligent waiver, no person may be imprisoned for
any length of time, regardless of the classification of the
person’s offense, unless that person was represented by
counsel. Glover v. United States, 531 U.S. 198, 203 (2001);
Scott v. Illinois, 440 U.S. 367, 373-74 (1979); Argersinger
v. Hamlin, 407 U.S. 25, 31, 37 (1972). By contrast, when a
defendant is convicted without the assistance of counsel
but is not sentenced to a period of incarceration, there
is no Sixth Amendment violation and thus that convic-
tion may be considered in subsequent sentencing pro-
ceedings. Nichols v. United States, 511 U.S. 738, 748-49
(1994). Accordingly, Feliciano had a right to counsel in
the Florida case if the right to counsel applies to a sen-
tence of imprisonment that is satisfied by time already
served before conviction. Feliciano argues that Scott and
Argersinger imply that counsel must be appointed when-
ever a sentence of imprisonment is imposed—without any
qualification as to how or when that sentence is fulfilled.
  This court’s decision in United States v. Staples, 202 F.3d
992, 997 (7th Cir. 2000), supports his argument, though
the case is not directly on point. The defendant in Staples
faced federal drug charges. Earlier, he had received a
sentence of imprisonment for a state-court conviction, but
the sentence was fully satisfied by time already served
before the state-court conviction. Id. The applicable fed-
6                                              No. 06-3423

eral sentencing guideline considered the state conviction
to be part of the defendant’s criminal history only if the
conviction resulted in imprisonment. Id. This court
determined that a sentence of imprisonment fully satis-
fied by pre-conviction jail time qualified as a sentence
that counted toward the defendant’s criminal history
score. Id. Similar reasoning leads us to conclude that
Feliciano’s pre-conviction jail time was a “sentence of
imprisonment” that constitutes punishment for his offense.
Because the Supreme Court has held that punishment
by imprisonment implicates the right to counsel, see
Scott, 440 U.S. at 373, Feliciano had that right at his
Florida proceedings.
  Since Feliciano did have a right to counsel, we must
finally consider whether he waived that right. At one level,
the answer is a straightforward “yes.” He signed a form
indicating that he was waiving the right, and he told the
judge that he wished to enter his plea without representa-
tion. Feliciano argues, however, that these indications
of waiver were not constitutionally sufficient, because
neither the printed form nor the judge’s oral admoni-
tions adequately appraised him of the detriments of self-
representation or the benefits of counsel.
  The Supreme Court has held that waiver of the right to
counsel must be knowing, voluntary, and intelligent. Iowa
v. Tovar, 541 U.S. 77, 81, 88 (2004). The accused does not
need to appreciate all the consequences flowing from his
choice, but he or she must understand the nature of the
right and how it would apply in general under the circum-
stances. Tovar, 541 U.S. at 92. In the context of a guilty
plea, a trial court must inform a defendant “of the nature
of the charges against him, of his right to be counseled
regarding his plea, and of the range of allowable punish-
ments attendant upon the entry of a guilty plea.” Tovar,
541 U.S. at 81; Speights v. Frank, 361 F.3d 962, 964-65
No. 06-3423                                               7

(7th Cir. 2004) (“It is enough, Tovar held, if the accused
knows of his right to counsel and the plea itself is volun-
tary.”).
  The Florida court initially postponed action on
Feliciano’s request for counsel, and then at the arraign-
ment, Feliciano informed the court that he did not want a
lawyer. There was a potential misunderstanding about the
punishment Feliciano was facing, to the extent that the
judge promised him “no” imprisonment and the judge
wound up sentencing him to a two-day, time-served
sentence. It is undisputed, however, that after the sentenc-
ing Feliciano was not required to return to jail. The judge
never invited Feliciano to change his plea after he an-
nounced the sentence, but Feliciano did not express any
dissatisfaction with the outcome of the proceeding either.
Although it is usually the case that a judge’s error in
describing the maximum punishment will render a plea
involuntary, see Dalton v. Battaglia, 402 F.3d 729, 733
(7th Cir. 2005), the circumstances of this case are
unusual. The error or misunderstanding, whichever it
was, about the way that the two-day period Feliciano had
already spent in jail should be characterized was not
enough, in our view, to contradict the evidence of record
indicating that he was voluntarily proceeding without a
lawyer and that his guilty plea was also voluntary.
  Feliciano also argues that even if his constitutional
right to counsel did not prevent the district court from
considering his Florida conviction, the text of the Sen-
tencing Guidelines does. He points to the background
commentary of U.S.S.G. § 4A1.2, which states “Prior
sentences, not otherwise excluded, are to be counted in
the criminal history score, including uncounseled misde-
meanor sentences where imprisonment was not imposed.”
He argues that this language necessarily implies its
opposite: that uncounseled misdemeanors in which prison
sentences are imposed cannot be counted in a criminal
8                                              No. 06-3423

history score. The Second Circuit came to this conclusion
in United States v. Ortega, 94 F.3d 764, 770 (2d Cir. 1996),
based upon the language of the guidelines and the likeli-
hood of constitutional violations resulting from uncoun-
seled misdemeanor sentences of imprisonment. We find
this argument unpersuasive, however, because uncoun-
seled cases resulting in imprisonment may also be based
on a valid waiver of the right to counsel. The latter cases
would not raise constitutional concerns, and the guide-
lines language should not be read negatively to imply
that valid convictions cannot be counted. This is especially
true when the very language cited by Feliciano instructs
that convictions not otherwise prohibited should be
counted.
  Feliciano had a right to counsel in the Florida proceed-
ings, but we conclude that he waived it. We therefore
AFFIRM the judgment of the district court.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                   USCA-02-C-0072—8-21-07
