                                                        [DO NOT PUBLISH]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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