                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 24, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-41566
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

     versus

URI SALIM BENAVIDES-HERNANDEZ,

                                    Defendant-Appellant.



          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 1:04-CR-234-1



Before GARWOOD, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PER CURIAM:*

     Uri Salim Benavides-Hernandez (“Benavides”) appeals the

sentence imposed following his guilty-plea conviction for

possession with intent to distribute more than 500 grams of

cocaine and using and carrying a firearm during a drug

trafficking offense.   Benavides argues that the district court

erred by enhancing his sentence based upon his February 22, 2000,

and March 27, 2000, guilty-plea convictions for illegal entry


     *
       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this opinion should not be published and is not precedent except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.
because those convictions were obtained in violation of his Sixth

Amendment right to counsel.   Prior to sentencing, Benavides filed

objections to the presentence report (PSR), claiming that his

three earlier convictions—the two 2000 illegal entry convictions

and a 2001 illegal entry conviction—were based on uncounseled

guilty pleas that are invalid because he did not knowingly and

intelligently waive his right to counsel.   For the purposes of

this appeal, we assume without deciding that Benavides had the

right to collaterally attack his prior convictions at the

sentencing phase of this conviction.1   The defendant who


     1
      Application Note 6 to Section 4A1.2 of the Sentencing
Guidelines provides, inter alia: “ With respect to the current
sentencing proceeding, this guideline and commentary do not
confer upon the defendant any right to attack collaterally a
prior conviction or sentence beyond any such rights otherwise
recognized in law (e.g., 21 U.S.C. § 851 expressly provides that
a defendant may collaterally attack certain prior convictions).”
U.S.S.G. § 4A1.2, comment., n. 6. The Supreme Court in Custis v.
United States, 114 S.Ct. 1732 (1994), addressed a collateral
attack of a prior conviction during sentencing under the Armed
Career Criminal Act (ACCA) and found that an attack based on a
claim of ineffective assistance of counsel and a claim that the
guilty plea was not knowingly and intelligently made was not
permitted by the statute. The Court did, however, note “that
failure to appoint counsel for an indigent defendant was a unique
constitutional defect,” id. at 1738, and recognized that this was
an exception for which a collateral attack would be allowed under
the ACCA. While not directly addressing sentencing under the
Sentencing Guidelines, the Custis opinion lends support to an
argument that the right to make a collateral attack on these
grounds is one that is “otherwise recognized in law.” In United
States v. Toliver, 50 F.3d 1034, No. 94-40978 (5th Cir. March 17,
1995) (unpublished; see Fifth Circuit Rule 47.5.3) we held that
at sentencing under the guidelines use of a prior guilty plea
based conviction (which had not previously been set aside) could
not be challenged on the basis that the plea was invalid because
the defendant was not advised of the elements of the offense and

                                 2
collaterally attacks a conviction bears the burden of proof, even

if the attack rests on constitutional grounds.       Parke v. Raley,

113 S.Ct. 517, 524 (1992).   In addition, “in a collateral attack

on an uncounseled conviction, it is the defendant’s burden to

prove that he did not competently and intelligently waive his

right to assistance of counsel.”       Iowa v. Tovar, 124 S.Ct. 1379,

1390 (2004).

     The district court overruled Benavides’s objections to the

PSR, finding that Benavides was represent by counsel in the 2001

case and that Benavides validly waived his right to an attorney

in both of the 2000 cases.   On appeal, Benavides argues that the

waiver form he signed implied that the right to counsel did not

exist unless the defendant went to trial.      While the form may




would not have pled guilty if he had been; in so holding we noted
that although Custis dealt with sentencing under the ACCA, the
“broader constitutional ruling in Custis is equally applicable to
sentencing enhancements under the Guidelines as well.” On the
other hand, there are approved procedures for bringing a
collateral on these grounds. The Court in Custis also noted that
“the failure to appoint counsel for an indigent defendant in a
federal proceeding . . . was subject to collateral attack in
federal habeas corpus.” Id. at 1737 (citing Johnson v. Zerbst,
58 S.Ct. 1019 (1938)). Moreover, if, as in this case, the
defendant is not in custody and so the writ of habeas corpus is
not available, another recognized method for collaterally
attacking a conviction based on a failure to appoint counsel and
no effective waiver of this right by the defendant is through the
writ of error coram nobis. See United States v. Morgan, 74 S.Ct.
247 (1954); see also United States v. Canales, 960 F.2d 13111,
1316 (describing a defendant’s remedies, “other than the
sentencing proceeding through which to attack the prior
conviction”).

                                   3
arguably make this erroneous implication,2 any possible

misunderstanding on the part of Benavides was addressed and cured

by the magistrate judge during the plea colloquy in each case.

Benavides has not met his collateral-attack burden of showing

that his waiver of counsel prior to the February conviction was

not competent and intelligent.   Moreover, for the February

conviction, Benavides received a stand-alone sentence of

probation and so the right to counsel did not apply.   See United

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

States v. Rios-Cruz, 376 F.3d 303, 304–05 (5th Cir. 2004).    As

Benavides concedes, under Perez-Macias and Rios-Cruz, his

argument regarding the February conviction is foreclosed.

     Benavides was sentenced to 45 days of imprisonment for the

March 27, 2000, conviction and the Sixth Amendment right to

counsel did apply.   See Alabama v. Shelton, 535 U.S. 654, 661–62

(2002).   In addition to challenging the waiver form, Benavides

points out that, during his March 27, 2000, plea colloquy, while

the magistrate judge informed Benavides that he had the right to


     2
      The form in question is the “Consent To Be Tried By A
United States Magistrate,” and the specific clause identified by
Benavides as implying that his right to counsel is only in the
event of trial provides: “Having waived my right to trial before
a District Judge and after having these rights fully explained to
me, I hereby also waive my right to counsel or the assignment of
counsel, since there will be no trial.” (emphasis added).
Although Benavides has only limited English, this form is printed
in both English and Spanish on a single page. In the present and
all relevant prior court proceedings a Spanish language
interpreter was used throughout.

                                 4
counsel, the magistrate judge did not expressly inform Benavides

that he had the right to court-appointed counsel if he could not

afford an attorney.3   Benavides summary of the March 27 plea

colloquy is correct, but Benavides did not provide evidence or

make an offer of proof that he did not know he had a right to




     3
      In support of his argument on this issue, Benavides cites
to our holding in Elsperman v. Wainwright, 358 F.2d 259 (5th Cir.
1966), where we stated that “it is not enough for the trial Court
to ask an indigent defendant merely whether he desires counsel:
the Court must affirmatively inform the defendant that it has a
duty to appoint counsel for him if he so desires.” Id. at 260.
This language is dicta. Elsperman’s holding is that the habeas
petitioner was entitled to a hearing on his “positive
allegations” that in his challenged conviction (when he was
indigent and unable to employ counsel) “his requests for court-
appointed counsel were denied by the trial court” and that “the
State Court minutes, which do not purport to be a transcript of
the proceedings” indicating the contrary could be challenged at
such a hearing.     Two years later, in Irving v. Breazeale, 400
F.2d 231 (5th Cir. 1968), we noted that “the Elsperman case did
not establish a procrustean verbal formula. It requires only
that the accused be informed that he has an absolute right to
counsel. This requirement can ordinarily be satisfied by an
unequivocal statement, without subjunctive overtones, that the
accused has a right to counsel. Further elaboration in
unnecessary to convey the idea except, e.g., where the indigent
is a youth or a dull adult or where he indicates that he does not
understand that his right to counsel is unqualified.” Id. at
235. In the March 27 plea colloquy, the magistrate judge
specifically said “you have the right to a lawyer.” There is no
evidence that Benavides is a dull adult, and the fact that he
does not speak English is the reason there is a court
interpreter. There is also no indication that he did not
understand that his right to counsel was unqualified. While the
magistrate judge’s statements fell short of the requirements of
Rule 11(b)(1)(D) of the Rules of Criminal Procedure, Rule 11(h)
provides that “A variance from the requirements of this rule is
harmless error if it does not affect substantial rights.” FED.
R. CRIM. P. 11(h).

                                 5
appointed counsel.4   Benavides has not met his collateral-attack

burden of showing that his waiver of counsel prior to the March

conviction was not competent and intelligent.   See Tovar, 124

S.Ct. at 1390.   Accordingly, the district court did not err by

enhancing Benavides’s sentence based upon the February and March

convictions.

     For the first time on appeal, Benavides argues that the

district court had the erroneous belief that it could not depart

downward from the statutory minimum sentence on the firearm

count.   Because Benavides did not raise this issue below, we


     4
      The closest that Benavides comes to providing such evidence
is in his attorney’s objections to the pre-sentence investigation
report: “Mr. Benavides states that at the time he waived counsel
[in the two 2000 cases and the 2001case], he had no knowledge of
the state or federal criminal justice systems and/or procedures.”
This unsworn pleading was signed by the assistant federal public
defender, not by Benavides. It is neither an affidavit or an
offer of proof, and it is not persuasive. Moreover, the
statement is false on its face, because Benavides had (and did
not waive) counsel in his 2001 case and also because Benavides,
after his first conviction, did have some knowledge of the
federal criminal justice procedures. See Parke, 113 S.Ct. at 527
(“a defendant’s prior experience with the criminal justice system
[is] relevant to the question whether he knowingly waived
constitutional rights”). In his February 22, 2000 conviction he
was expressly advised by the magistrate judge, inter alia, that
“You have the right to an attorney. And, if you cannot afford an
attorney this Court will appoint one for you at no cost to you.”
There is no reason to believe that Benavides had forgotten any of
this advice when, on March 27, 2000, he again appeared before a
magistrate judge in the same court on a repeat violation of the
same statute. Indeed, in the March 27, 2000 proceeding Benavides
answered “yes” when the magistrate judge asked “[t]hey also tell
me that you were here for the same offense on February 22nd. Is
that true?” See, e.g., Parke, 113 S.Ct. at 527 (state court
properly “inferred that respondent remained aware in 1981 of the
rights of which he was advised in 1979").

                                 6
review for plain error only.     See United States v. Thames, 214

F.3d 608, 612 (5th Cir. 2000).    The district court considered the

overall sentence for both counts, and it made the overall

downward departure recommended by the government.    On paper, the

district court deducted the full amount of the overall departure

from the sentence imposed on the possession-with-intent-to-

distribute count, and left unchanged the five-year statutory-

minimum sentence for using and carrying a firearm during a drug

trafficking offense.   Nothing in the record indicates that the

district court wished to make a greater downward departure than

it made.   Even if the court erroneously believed that it could

not make a downward departure from the statutory minimum on the

firearm count (and it is not entirely clear from the record that

it did so believe), it could have made a significantly greater

downward departure on the possession count (and there is

absolutely nothing in the record to suggest that the court

believed it could not do so).    Accordingly, assuming arguendo

that the district court erred and the error was plain, Benavides

still cannot show that his substantial rights were affected and

so he fails the third prong of the plain error standard.     See

United States v. Olano, 507 U.S. 725, 731–37 (1993); United

States v. Mares, 402 F.3d 511, 521 (5th Cir. 2005).

     Also for the first time on appeal, Benavides argues that the

district court committed reversible error under United States v.


                                   7
Booker, 125 S.Ct. 738 (2005), by sentencing him pursuant to a

mandatory application of the sentencing guidelines.       We have

differentiated between the two types of error addressed in

Booker, and the error that Benavides asserts here is Fanfan

error.   See United States v. Martinez-Lugo, 411 F.3d 597, 600

(5th Cir. 2005), petition for cert. filed (Sep. 2, 2005)(No.

05-6242).   Because Benavides did not raise this issue below, we

review for plain error only.     See United States v.

Valenzuela-Ouevedo, 407 F.3d 728, 732 (5th Cir. 2005).       Benavides

concedes that he cannot meet the third prong of the plain error

standard set forth in Mares, 402 F.3d at 520–21, in that he

cannot prove that the district court’s Fanfan error affected the

outcome of the proceedings.    Instead, Benavides contends that

Fanfan error is structural or that prejudice should otherwise be

presumed.   Benavides concedes this court has already rejected the

argument that a Booker error or the application of the

then-mandatory guidelines is a structural error or that such

error is presumptively prejudicial.        Martinez-Lugo, 411 F.3d at

601; see also United States v. Malveaux, 411 F.3d 558, 561 n.9

(5th Cir. 2005).   As Benavides acknowledges, this argument is

foreclosed.

                               AFFIRMED.




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