                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 27 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 00-1047
                                                    (D.C. No. 99-CR-60-D)
    HILARIO ALFREDO RAMIREZ-                              (D. Colo.)
    RODRIGUEZ,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before McKAY, PORFILIO, and ANDERSON, Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Hilario Alfredo Ramirez-Rodriguez appeals from imposition of a sentence

based in part on one criminal history point imposed for a prior uncounseled

misdemeanor conviction. Our jurisdiction arises under 18 U.S.C. § 3742, and

we affirm.

      In October 1999, Mr. Ramirez-Rodriguez pleaded guilty to one count of

distribution of heroin in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and to

one count of using or carrying a firearm during the commission of a drug

trafficking felony in violation of 18 U.S.C. § 924(c). Mr. Ramirez-Rodriguez had

a prior misdemeanor conviction for driving while ability impaired, for which he

served twenty-five days in jail in 1997 after revocation of a one-year probation

for failure to comply with the terms of the probation. The presentence report

recommended, and Mr. Ramirez-Rodriguez objected to, the addition of one

criminal history point for this conviction. After a hearing on the matter at which

Mr. Ramirez-Rodriguez testified, the district court found that, by signing

a document at the 1997 probation revocation hearing acknowledging that he had

been advised that he could request appointed counsel without cost and waiving

that right, Mr. Ramirez-Rodriguez had clearly waived his right to counsel.

See Tr. at 28-29. The court found that Mr. Ramirez-Rodriguez’s uncounseled

conviction was not unconstitutionally infirm because he had knowingly and

voluntarily waived his right to counsel. See Tr. at 27. The court added one


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criminal history point for the conviction, holding that under United States v.

Windle, 74 F.3d 997 (10th Cir. 1996), prior uncounseled misdemeanor convictions

that are not constitutionally infirm may be used to enhance punishment for

subsequent convictions.

      On appeal, Mr. Ramirez-Rodriguez argues that, under Loper v. Beto,

405 U.S. 473, 481 (1972), adding the criminal history point for an uncounseled

misdemeanor conviction was erroneous. We conduct a de novo review of the

court’s interpretation and application of a sentencing guideline, disturbing the

court’s factual findings only for clear error. See Windle, 74 F.3d at 1000-01.

A defendant attacking the validity of a prior conviction for sentencing purposes

must show by a preponderance of the evidence that his prior statement was

involuntary or unknowing. See United States v. Wicks, 995 F.2d 964, 978

(10th Cir. 1993); Windle, 74 F.3d at 1001 (stating that “[o]nce the prosecution

establishes the existence of a conviction, the defendant must prove by a

preponderance of the evidence that the conviction was constitutionally infirm”).

      Mr. Ramirez-Rodriguez first argues that his case is distinguishable from

Windle because the presentence investigation report in his case failed to establish

that he knowingly and voluntarily waived his right to counsel. We disagree. The

presentence investigation report contained the signed waiver, which carried

a presumption of regularity. See Parke v. Raley, 506 U.S. 20, 29 (1992).


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Mr. Ramirez-Rodriguez admitted that he signed the waiver. The existence of the

admittedly signed waiver is enough to establish a knowing and voluntary waiver

of rights in the absence of any evidence to the contrary.

      Mr. Ramirez-Rodriguez next argues that he proved at his sentencing

hearing that his waiver was not knowing and voluntary, citing to the “proffer”

of testimony made by his attorney at the hearing. Mr. Ramirez-Rodriguez is

mistaken about what is contained in a “proffer” of evidence. A “proffer” is the

actual documentary evidence or sworn testimony that is presented in court.

It does not include the attorney’s unsworn statement explaining to the court what

he hopes the evidence will show which prefaces the proffer. An attorney’s

unsworn statement regarding what he thinks a witness will say when he testifies is

not evidence and has no legal effect. Cf. Gomes v. Williams, 420 F.2d 1364, 1366

(10th Cir. 1970) (holding that attorney’s statement that defendant had a good

defense to allegations of fraud was “a bald allegation, without the support of facts

underlying the defense, [and] will not sustain the burden of the defaulting party

under Rule 60(b)”). Although Mr. Ramirez-Rodriguez’s counsel represented to

the court that Mr. Ramirez-Rodriguez did not read the waiver before signing it

and that neither the court nor the prosecutor verbally informed him of his right to

counsel, Mr. Ramirez-Rodriguez did not testify to these representations when

given the opportunity to do so at the hearing.


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      Mr. Ramirez-Rodriguez failed to present any evidence that the waiver he

signed in 1997 was involuntary or unknowing. The district court had before it no

evidence to rebut the presumption of regularity of the signed waiver and did not

err in finding that Mr. Ramirez-Rodriguez had voluntarily and knowingly waived

his right to counsel.

      The judgment of the United States District Court for the District of

Colorado is AFFIRMED.



                                                   Entered for the Court



                                                   Stephen H. Anderson
                                                   Circuit Judge




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