                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
              IN THE UNITED STATES COURT OF APPEALS           April 2, 2003
                      FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                             No. 02-41403


     UNITED STATES OF AMERICA

                            Plaintiff - Appellee

     v.

     RICARDO PEREZ-MACIAS

                            Defendant - Appellant


          Appeal from the United States District Court
               for the Southern District of Texas


Before KING, Chief Judge, and DAVIS, Circuit Judge, and

ROSENTHAL, District Judge.*

KING, Chief Judge:

     Ricardo Perez-Macias appeals his conviction and sentence,

arguing that under the Supreme Court’s recent decision in Alabama

v. Shelton, 535 U.S. 654 (2002), his prior uncounseled

misdemeanor conviction for illegal entry under 8 U.S.C.

§ 1325(a), for which he received a probated sentence, violated
his Sixth Amendment right to counsel and therefore cannot form

the predicate for the instant felony conviction for illegal entry

under § 1325(a).    We affirm.

               I.    FACTUAL AND PROCEDURAL HISTORY

     A.   The First Offense



     *
          United States District Judge Lee H. Rosenthal of the
Southern District of Texas, sitting by designation.
       On May 7, 2002, Defendant-Appellant Ricardo Perez-Macias1

illegally entered the United States; he was arrested the next

day.       On May 9, he was charged in federal district court in

Laredo with a misdemeanor offense of illegal entry in violation

of 8 U.S.C. § 1325(a) (2000).2         Perez-Macias is a Mexican citizen

with no legal status in the United States who has entered the

United States illegally approximately fifteen times.3         He

appeared pro se, entered a plea of guilty, and was sentenced to a

three-year term of unsupervised probation and a $10 special

assessment.       The Immigration and Naturalization Service then

allowed Perez-Macias to voluntarily return to Mexico.

       B.      The Second Offense

       Less than two weeks later, on May 20, 2002, Perez-Macias

crossed the Rio Grande River and again illegally entered the

       1
          The defendant explained in the sentencing hearing for
his first offense that his last name is actually Perez-Marcias,
not Perez-Macias. However, because both parties and all of the
court documents refer to the defendant as Perez-Macias, we will
as well.
       2
               The statute provides:

       Any alien who (1) enters or attempts to enter the
       United States at any time or place other than as
       designated by immigration officers . . . shall, for the
       first commission of any such offense, be fined under
       title 18 or imprisoned not more than 6 months, or both,
       and, for a subsequent commission of any such offense,
       be fined under title 18 or imprisoned not more than 2
       years, or both.

8 U.S.C. § 1325(a) (2000).
       3
          Though Perez-Macias entered the United States illegally
many times, he was only prosecuted twice, for the May 7, 2002
offense and for the May 20, 2002 offense.

                                       2
United States.    He was arrested by border patrol agents in Three

Rivers, Texas, on May 21, 2002.

     On June 13, 2002, Perez-Macias was indicted in federal

district court in Corpus Christi on one felony count of illegal

entry in violation of 8 U.S.C. § 1325(a)(1) (2000)4 and two

counts of transporting illegal aliens in violation of 8 U.S.C.

§§ 1324(a)(1)(A)(ii) and 1324(a)(1)(B)(ii) (2000).   Because of

this second offense, the magistrate judge who sentenced Perez-

Macias in the first case began proceedings to revoke Perez-

Macias’s probation.   The district court in this case sought and

received transfer of the probation revocation proceedings to it

in order to consolidate the revocation and the sentencing on the

second offense.

     As part of a plea agreement, Perez-Macias agreed to plead

guilty to the illegal entry count in exchange for the United

States’s agreement to recommend the maximum credit for acceptance

of responsibility and to dismiss the other two counts.   The

district court accepted Perez-Macias’s guilty plea and considered

the appropriate sentence.   The district court sentenced Perez-

Macias for the charged felony illegal entry offense, rather than

     4
          The indictment charged:

     On or about May 20, 2002, in the Southern District of
     Texas and within the jurisdiction of the Court, the
     defendant, RICARDO PEREZ-MACIAS, an alien, having been
     convicted previously on May 9, 2002, for illegally
     entering the United States in violation of Title 8,
     United States Code, Section 1325, did knowingly enter
     the United States at a place other than as designated
     by the immigration officers.

                                  3
a misdemeanor offense, because he had previously been convicted

of illegal entry.     The Presentence Report (“PSR”) recommended

Perez-Macias be sentenced with an offense level of 6.5        This

reflected a base offense level of 8 for a repeat violation of 8

U.S.C. § 1325(a) with two levels subtracted for acceptance of

responsibility.     See U.S. SENTENCING GUIDELINES MANUAL § 2L1.2 (2001).

The PSR also added three points for criminal history: one for

Perez-Macias’s prior illegal entry conviction and two because he

was on probation for that offense when he committed the instant

offense.   See U.S. SENTENCING GUIDELINES MANUAL § 4A1.1 (2001).     These

three criminal history points put Perez-Macias in a criminal

history category of II.

     Perez-Macias objected to the use of his prior uncounseled

misdemeanor to enhance his sentence, arguing that under Alabama

v. Shelton, 535 U.S. 654 (2002), the misdemeanor conviction was

obtained in violation of his Sixth Amendment right to counsel.

Specifically, Perez-Macias objected to the use of his prior

conviction to both: (1) enhance his offense from misdemeanor

illegal entry (for which the maximum sentence is six months) to

felony illegal entry (for which the maximum sentence is two

years) under 8 U.S.C. § 1325(a) and (2) add three criminal

history points to place him in a criminal history category of II

under the Sentencing Guidelines.

     The district court agreed with Perez-Macias, finding that

     5
          The district court used the 2001 version of the United
States Sentencing Guidelines.

                                    4
Shelton bars the use of his prior uncounseled misdemeanor because

Perez-Macias received probation in that case.6   Therefore, the

district court relieved Perez-Macias of the probation sentence in

the first case and left only the $10 special assessment.7   The

district court then determined that, having vacated the sentence

of probation from the misdemeanor conviction, that conviction

could permissibly be used to enhance the instant offense from a

misdemeanor to a felony.   Alternatively, the district court held

that 8 U.S.C. § 1325(a)’s felony enhancement provision, which

states that a prior “commission” of an illegal entry offense may

be used to enhance a subsequent offense, does not require a

“conviction,” so that even if Perez-Macias’s previous conviction

was invalid under Shelton, his first offense may still be used to


     6
          The district court considered, and rejected, the United
States’s argument that Perez-Macias knowingly and intelligently
waived his right to counsel in the prior proceeding. The United
States has not appealed this holding.
     7
          The district court explained:

          Here’s what we’re going to do: We’re going to give
     you both something to appeal. . . . [W]ith respect to
     the Laredo cause number that’s been transferred up to
     me, 02-1759M, that probationary period of two [sic]
     years, he is relieved of that probation and he no
     longer stands subject to that probation. However, the
     conviction remains as well as does his requirement to
     pay $10. . . .
          With respect to Cause Number 02-168 out of this
     court, the Court does not find that he was under a
     sentence of probation. The Court, I guess, would
     presume – and I think it’s fair to presume – that that
     would have to be valid probation. And having
     determined in a contemporaneous proceeding that it is
     an invalid probation, the Court will not award those
     two points.

                                 5
enhance his second offense.    After holding that the previous

conviction could be used to enhance the offense under § 1325(a),

the district court decided to use the prior conviction, but not

the prior (and now vacated) sentence of probation, to determine

Perez-Macias’s criminal history category.     The district court

thus gave Perez-Macias one criminal history point (rather than

three), but then departed upward to a criminal history category

of III (under U.S. SENTENCING GUIDELINES MANUAL § 4A1.3) because

Perez-Macias had previously and repeatedly illegally entered the

United States.   The district court sentenced Perez-Macias to

eight months in prison, one year of supervised release, and a

$100 special assessment.    The district court then entered an

order dismissing the probation revocation proceedings because it

had “delet[ed] the term of probation.”8

     Perez-Macias appealed.    He now argues that: (1) under

Alabama v. Shelton, his prior uncounseled misdemeanor conviction

cannot be used to enhance his offense from a misdemeanor to a

felony and (2) the district court erred in its alternative

holding that 8 U.S.C. § 1325(a) requires only “commission” of an

offense and not a “conviction.”9


     8
          Neither Perez-Macias nor the United States has appealed
this order or questioned the power of the district court to
modify the sentence in the first case without holding a probation
revocation hearing.
     9
          Perez-Macias does not argue on appeal that his prior
conviction was unconstitutionally used to calculate his criminal
history category or that the district court erred in departing
upward in determining his criminal history category.

                                   6
                      II.    STANDARD OF REVIEW

     Constitutional questions are reviewed by this court de novo.

E.g., United States v. Aguilar-Tamayo, 300 F.3d 562, 564 (5th

Cir. 2002).   Issues of statutory interpretation are also reviewed

de novo.   E.g., United States v. Hanafy, 302 F.3d 485, 487 (5th

Cir. 2002).

                            III.   DISCUSSION

     A.    Whether Perez-Macias’s prior uncounseled misdemeanor
           conviction can be used to enhance his current illegal
           entry offense from a misdemeanor to a felony

     Perez-Macias argues that his prior uncounseled misdemeanor

cannot be used to enhance the offense in this case from a

misdemeanor to a felony.     Specifically, he reads the Supreme

Court’s recent ruling in Alabama v. Shelton, holding that there

is a Sixth Amendment right to counsel in misdemeanor cases where

a suspended sentence is imposed, to require counsel (or a valid

waiver of counsel) in misdemeanor cases where only probation is

imposed.   Assuming that his prior conviction was

unconstitutional, then, Perez-Macias argues it cannot be used to

enhance his current offense from a misdemeanor to a felony even

though the district court vacated the sentence of probation.

     The United States argues that Perez-Macias’s prior

misdemeanor may be used to enhance his current offense because

Shelton applies to require counsel only when suspended sentences,

and not when stand-alone sentences of probation, are imposed.

The United States argues that a defendant sentenced to probation

does not have a Sixth Amendment right to counsel so long as he

                                    7
never receives a sentence of imprisonment.    The United States

further argues that even if Shelton applies to require counsel

before a defendant may be sentenced to imprisonment upon

revocation of his probation, because the district court in this

case vacated the sentence of probation for the first offense,

Perez-Macias could never be sentenced to prison for that offense.

Hence, his previous conviction may be used to enhance his

sentence for the current offense.

     The district court determined that Shelton gave Perez-Macias

a Sixth Amendment right to counsel in his first case because he

was sentenced to probation.    The district court then vacated

Perez-Macias’s sentence of probation in the first case and held

that the first conviction could permissibly be used to enhance

the current offense from a misdemeanor to a felony under 8 U.S.C.

§ 1325(a).

     The Supreme Court has explained that a defendant has a Sixth

Amendment right to counsel in a misdemeanor case only under

certain circumstances.10    In Argersinger v. Hamlin, the Supreme

Court held that “absent a knowing and intelligent waiver, no

person may be imprisoned for any offense, whether classified as

petty, misdemeanor, or felony, unless he was represented by

counsel at his trial.”     407 U.S. 25, 37 (1972) (emphasis added).

In Scott v. Illinois, the Court clarified that the right to


     10
          In contrast to a misdemeanor case, a defendant charged
with a felony always has a Sixth Amendment right to counsel. See
Gideon v. Wainwright, 372 U.S. 335, 339-45 (1963).

                                   8
counsel only applies where the defendant is actually sentenced to

imprisonment and not merely where imprisonment is an authorized

penalty.11   See 440 U.S. 367, 370-74 (1979).    In Nichols v.

United States, the Court went one step further, explaining that

an uncounseled misdemeanor conviction that was valid under Scott

because no term of imprisonment was imposed may be used to

enhance the penalty for a subsequent offense.       See 511 U.S. 738,

748-49 (1994).

     In Alabama v. Shelton, the Court considered whether a

defendant sentenced to a suspended sentence of imprisonment has a

Sixth Amendment right to counsel.      See 535 U.S. 654, 122 S. Ct.

1764, 1767 (2002).   Shelton was convicted of third-degree assault

in Alabama state court and was sentenced to a suspended 30-day

prison sentence, two years’ unsupervised probation, and monetary

penalties.   See id. at 1767-68.    The Court held that a suspended

sentence is a “term of imprisonment” requiring counsel under

Argersinger and its progeny.     See id. at 1767.   The Court

explained that “[a] suspended sentence is a prison term imposed

for the offense of conviction.     Once the prison term is

triggered, the defendant is incarcerated not for the probation

violation, but for the underlying offense.”      Id. at 1770.

     Shelton did not address the sentence of probation at issue


     11
          Perez-Macias suggests that we hold that there is a
right to counsel in any case where imprisonment is an authorized
punishment. Because the Supreme Court has previously rejected
that argument, see Scott, 440 U.S. at 370-74, we reject the
argument as well.

                                   9
in this case because a suspended sentence is not the same as a

stand-alone sentence of probation.     The sentence under

consideration in Shelton was a suspended sentence coupled with

probation, while in this case, Perez-Macias received probation

without a suspended sentence.12   Many, if not all, states impose

probation only in connection with a suspended sentence.         See

Shelton, 122 S. Ct. at 1776 (noting “the Alabama Attorney

General’s acknowledgment at oral argument that he did not know of

any State that imposes, postconviction . . . a term of probation

unattached to a suspended sentence”).    In contrast, in the

federal system, probation is available as a stand-alone sentence

and suspended sentences are not used.     See U.S. SENTENCING

GUIDELINES MANUAL ch. 7, introductory cmt. (2001) (“The statutory

authority to ‘suspend’ the imposition or execution of a sentence

in order to impose a term of probation was abolished upon

implementation of the sentencing guidelines.     Instead, the

Sentencing Reform Act recognized probation as a sentence in

itself.”); see also 18 U.S.C. § 3561 (authorizing a sentence of

probation).   None of our sister circuits has yet addressed how

Shelton applies to federal stand-alone probation sentences.

     A suspended sentence is conceptually different from a

sentence of probation.   If a defendant receives a suspended


     12
          Perez-Macias was also sentenced to a $10 special
assessment, but this fine is not relevant to the Sixth Amendment
analysis because Scott made it clear that imposition of a fine
does not trigger the right to counsel. See Scott, 440 U.S. at
368-74.

                                  10
sentence, he is sentenced to a term of imprisonment that is

suspended.   See Shelton, 122 S. Ct. at 1770.    Suspended sentences

are usually imposed in conjunction with probation so that if a

defendant commits another crime or violates a condition of

probation, his suspended sentence is activated.     See id.    If a

defendant receives only a sentence of probation, he is sentenced

to community release with conditions; he does not receive a

sentence of imprisonment.13   See, e.g., Wayne R. LaFave et al.,

Criminal Procedure 1199-1200 (3d ed. 2000).     If a defendant

serving a stand-alone probation sentence violates a condition of

probation, his probation may be revoked after a hearing and he

may be sentenced to any punishment that was originally available

at sentencing.   See 18 U.S.C. § 3565 (2000); FED. R. CRIM. P.

32.1; see also Gagnon v. Scarpelli, 411 U.S. 778, 782, 787-90

(1973) (holding that a defendant has a due-process right to a

hearing before his probation is revoked).     At a probation

revocation hearing, federal law grants the defendant a right to

counsel, a right to written notice of the violation, disclosure

of evidence against him, the opportunity to hear and present

evidence, and the opportunity to question adverse witnesses.         See

18 U.S.C. § 3006A(a)(1)(c) (2000); FED. R. CRIM. P. 32.1.      The

district court does not retry issues of guilt or innocence; the

only issue is whether the defendant violated a condition of

     13
            Probation should be distinguished from supervised
release: probation is imposed instead of imprisonment, while
supervised release is imposed after imprisonment. See U.S.
SENTENCING GUIDELINES MANUAL ch. 7, introductory cmt. (2001).

                                 11
probation and what should be done about it.    See United States v.

Francischine, 512 F.2d 827, 829 (5th Cir. 1975).    The issue of

whether there was a violation need not be determined beyond a

reasonable doubt and the Federal Rules of Evidence generally need

not be followed.   See id.; FED. R. EVID. 1101(d)(3).

     The Shelton Court expressly refused to address whether its

holding applies to a sentence of probation uncoupled with a

suspended sentence.   Initially, the Court limited its holding to

suspended sentences: “We hold that a suspended sentence that may

‘end up in the actual deprivation of a person’s liberty’ may not

be imposed unless the defendant was accorded ‘the guiding hand of

counsel’ in the prosecution for the crime charged.”     Shelton, 122

S. Ct. at 1767 (quoting Argersinger, 407 U.S. at 40) (emphasis

added).   The Court then noted that though Alabama “invite[d]

[them] to regard two years’ probation for Shelton as a separate

and independent sentence” and hold that “probation uncoupled from

a prison sentence should trigger no immediate right to appointed

counsel,” the Court would not consider that argument because

“[t]here is not so much as a hint . . . in the decision of the

Supreme Court of Alabama[] that Shelton’s probation term is

separable from the prison term to which it was tethered.”

Shelton, 122 S. Ct. at 1775-76.    The Court thus stated: “Absent

any prior presentation of the position the State now takes, we

resist passing on it in the first instance.”    Id. at 1776

(citation omitted).   Shelton, by its very language, does not

address the right to counsel in misdemeanor cases where a

                                  12
defendant receives a stand-alone probation sentence.

     Further, we do not believe that the logic of Shelton compels

extension of the right to counsel to cases where the defendant

receives a sentence of probation uncoupled with a suspended

sentence.   The key to the Supreme Court’s jurisprudence

addressing the right to counsel in misdemeanor cases is whether

the defendant receives a sentence of imprisonment.     See Nichols,

511 U.S. at 749 (“[A]n uncounseled misdemeanor conviction, valid

under Scott because no prison term was imposed, is also valid

when used to enhance punishment at a subsequent conviction.”)

(emphasis added); Scott, 440 U.S. at 374 (“[N]o indigent criminal

defendant [may] be sentenced to a term of imprisonment unless the

State has afforded him the right to assistance of appointed

counsel in his defense.”); Argersinger, 407 U.S. at 37 (“[A]bsent

a knowing and intelligent waiver, no person may be imprisoned for

any offense . . . unless he was represented by counsel at his

trial.”) (emphasis added).   The Court has made it clear “that

actual imprisonment is a penalty different in kind from fines or

the mere threat of imprisonment” and that “actual imprisonment

[i]s the line defining the constitutional right to appointment of

counsel.”   Scott, 440 U.S. at 373.   The Shelton Court reaffirmed

the “actual imprisonment” standard.    See 122 S. Ct. at 1769-70.

Applying that standard to this case, we find the answer clear.      A

defendant who receives a suspended sentence is given a term of

imprisonment, while a defendant who receives a stand-alone

sentence of probation is not.   Perez-Macias was sentenced to

                                13
probation, not to prison, and thus his previous conviction may be

used to enhance his current offense.14

     At the same time, we are cognizant of the fact that a

misdemeanor defendant sentenced to probation could,

theoretically, receive a prison term upon revocation of his

probation.   Though this mere threat of imprisonment does not

dictate that the defendant be afforded counsel for his trial, the

actual imposition of a term of imprisonment upon probation

revocation may pose a Sixth Amendment problem.15   That is, it may

be the case that a misdemeanor defendant who was convicted

without counsel may not be sentenced to prison upon revocation of

his probation.   We need not address that issue, however.    Here,

the district court relieved Perez-Macias of the probation

sentence for his first offense, leaving only a fine.    See Scott,

440 U.S. at 370-74 (holding there is no Sixth Amendment right to

counsel when only a fine is imposed).    The district court then

dismissed the pending probation revocation proceedings for that

     14
          We thus disagree with the district court’s holding that
Shelton bars imposition of a sentence of probation on an
uncounseled misdemeanor defendant who did not validly waive his
right to counsel. Put simply, the district court erred in
equating suspended sentences with probation.
     15
          In its brief to this court, the United States conceded
that an uncounseled defendant sentenced to stand-alone probation
who violates a condition of probation may not be sentenced to
imprisonment at his probation revocation hearing. It stated that
“if Perez had not validly waived counsel at the time of his
original misdemeanor plea, then under Scott and Argersinger the
sentencing court would not be permitted to impose a sentence to
imprisonment upon revocation of Perez’s probation.” Upon inquiry
from this court, the United States Attorney confirmed that this
is also the position of the Department of Justice generally.

                                14
offense; neither party appeals that ruling.   Thus, Perez-Macias

did not and cannot receive a term of imprisonment for his first

offense.   As a result, there is no Sixth Amendment problem with

Perez-Macias’s first conviction and it may be used to enhance the

instant offense.   See Nichols, 511 U.S. at 748-49.

     B.    Whether the district court erred in alternatively
           holding that only commission of a prior offense, but
           not a conviction, is required to enhance a misdemeanor
           illegal entry offense to a felony under 8 U.S.C.
           § 1325(a)

     Because we affirm Perez-Macias’s conviction and sentence on

the grounds that Perez-Macias’s prior conviction was validly used

to enhance his current offense, we do not consider the district

court’s alternative holding that 8 U.S.C. § 1325(a) requires only

evidence of commission of an offense, and not a prior conviction,

to enhance a misdemeanor illegal entry offense to a felony.

                          IV.   CONCLUSION

     For the foregoing reasons, Perez-Macias’s conviction and

sentence are AFFIRMED.




                                 15
