                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT               September 25, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-20649
                          Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

FAUSTINO TRUJILLO-BAZA,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No.4:05-CR-29-ALL
                       --------------------

Before Jolly, Dennis, and Clement, Circuit Judges.

PER CURIAM:*

     Faustino Trujillo-Baza appeals his 30-month sentence imposed

following his guilty plea conviction to being found unlawfully

present in the United States following deportation.     Trujillo-

Baza argues that the district court plainly erred in including

two criminal history points in his criminal history calculation

based on a prior 1988 Washington state felony drug conviction

because he received a 13-month sentence for that conviction.

Because Trujillo-Baza did not object in district court, our

review is for plain error.   United States v. Mares, 402 F.3d 511,

     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                            No. 05-20649
                                 -2-

520 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).     We will find

plain error if “(1) there was an error; (2) the error was clear

and obvious, and (3) the error affected [the defendant’s]

substantial rights.”    United States v. Gracia-Cantu, 302 F.3d

308, 310 (5th Cir. 2002).    If these elements are established, we

may exercise our discretion to correct the error “only if it

‘seriously affect[s] the fairness, integrity, or public

reputation of judicial proceedings.’”      Id.

     The Guidelines provide that a sentence of less than one year

and one month that is more than ten years old at the time of the

instant offense should not be counted in determining a criminal

history score.    See U.S.S.G. § 4A1.1, comment. (n.2); U.S.S.G.

§ 4A1.2(e)(2).   Thus, the district court erred in increasing

Trujillo-Baza’s criminal history points based on the Washington

conviction.    However, Trujillo-Baza has failed to show that the

error affected his substantial rights because the district court

could impose the same sentence upon remand and he has not shown

that there is a reasonable probability that, but for the

miscalculation of the Guidelines, the district court would have

imposed a substantially lesser sentence.      See United States v.

Jones, 444 F.3d 430, 437-38 (5th Cir.), cert. denied, 126 S. Ct.

2958 (2006).

     Trujillo-Baza argues that his sentence is unreasonable

because he received one criminal history point for an uncounseled

Illinois state guilty plea conviction.     If a misdemeanor
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                               -3-

conviction results only in a stand-alone sentence of probation,

the Sixth Amendment right to counsel does not apply.      United

States v. Perez-Macias, 335 F.3d 421, 428 (5th Cir. 2003).      The

record does not reflect that any sentence other than one year of

probation and $50 in costs was imposed at the time of Trujillo-

Baza’s guilty plea, and there is no indication that Trujillo-Baza

received a suspended sentence.    Illinois law does provide for

sentences of probation alone.    730 ILL. COMP. STAT. ANN. 5/5-5-3

(West, Westlaw through Jan. 1, 2006).    Thus, Trujillo-Baza was

not entitled to counsel during that proceeding.     In any event,

once the Government proves a valid conviction the burden is on

the defendant to show, by a preponderance of the evidence, that

the conviction is constitutuionally invalid.     United States v.

Osborne, 68 F.3d 94, 100 (5th Cir. 1995).     Even if Trujillo-Baza

had been entitled to counsel at his Illinois guilty plea, he has

not carried his burden of showing that the conviction was

uncounseled or that he did not competently and intelligently

waive his right to the assistance of counsel.     Thus, the district

court did not err in assessing a criminal history point for the

Illinois conviction.

     Trujillo-Baza challenges the constitutionality of 8 U.S.C.

§ 1326(b)’s treatment of prior felony and aggravated felony

convictions as sentencing factors rather than elements of the

offense that must be found by a jury in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000).    The argument is foreclosed by
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                               -4-

Almendarez-Torres v. United States, 523 U.S. 224 (1998), in which

the Supreme Court held that treatment of prior convictions as

sentencing factors in § 1326(b)(1) and (2) was constitutional.

Although Trujillo-Baza contends that a majority of the Supreme

Court would now consider Almendarez-Torres to be incorrectly

decided in light of Apprendi, “[t]his court has repeatedly

rejected arguments like the one made by [Trujillo-Baza] and has

held that Almendarez-Torres remains binding despite Apprendi.”

United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert.

denied, 126 S. Ct. 298 (2005).   Trujillo-Baza concedes as much,

but he raises the argument to preserve it for further review.

     The sentence is AFFIRMED.
