                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                               May 29, 2007
                       FOR THE FIFTH CIRCUIT
                       _____________________             Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-51506
                       _____________________

UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

                              versus

MANUEL SAENZ-MACIAS,

                                           Defendant - Appellant.
_________________________________________________________________

           Appeal from the United States District Court
            for the Western District of Texas, El Paso
                     USDC No. 3:05-CR-870-ALL
_________________________________________________________________

Before JONES, Chief Judge, and JOLLY and STEWART, Circuit Judges.

PER CURIAM:*

     Manuel Saenz-Macias (“Saenz”) appeals his 57-month sentence

for illegal reentry.   We AFFIRM.

                                I.

     On March 27, 2005, Saenz pleaded guilty to illegal reentry, in

violation of 8 U.S.C. § 1326.        The presentence report (“PSR”)

recommended a Guidelines sentence of 57 to 71 months imprisonment,

based on a total offense level of 21 and a criminal history

category of IV.   The criminal history category of IV was based on

7 criminal history points: 3 points for a 1994 assault conviction,


     *
      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this opinion should not be published and is not precedent except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.
1    point for    a   2001    DWI    conviction,   1   point    for   a     2004   DWI

conviction, and 2 points for committing the instant offense while

on    probation    for   the       2004   DWI   conviction.         For    both    DWI

convictions, the PSR noted that Saenz appeared pro se and received

a suspended sentence, but the evidence did not show whether Saenz

had waived his right to counsel.                The district court sentenced

Saenz to 57 of months imprisonment, at the bottom of the Guidelines

range.

                                          II.

       Saenz   appeals       his    sentence,    arguing   that      his    two    DWI

convictions, which were used for the sentence enhancement, are

unconstitutional under Alabama v. Shelton, 535 U.S. 654 (2002).

Under Shelton, when a defendant is given a suspended sentence, he

has a constitutional right to counsel.                 Id. at 674.         Contending

that he was not afforded counsel, Saenz argues that the district

court erred by including the two DWI convictions in his criminal

history score.1

       Because Saenz did not object below, we review under the plain

error standard.       See United States v. Villegas, 404 F.3d 355, 358

(5th Cir. 2005).      “This court finds plain error when: (1) there was

an error; (2) the error was clear and obvious; and (3) the error

affected the defendant’s substantial rights.”                 Id.    “If all three


       1
       Saenz may collaterally attack his previous convictions
because he asserts a violation of his right to counsel. See Custis
v. United States, 511 U.S. 485, 493-95 (1994).

                                           2
conditions     are   met    an   appellate    court    may   then     exercise      its

discretion to notice a forfeited error but only if (4) the error

seriously affects the fairness, integrity, or public reputation of

judicial proceedings.”           Id. at 358-59.       Because plain error only

exists if the error affected the defendant’s substantial rights,

“we will uphold a defendant’s sentence if on remand the district

court could reinstate the same sentence by relying on a reasonable

application of the Sentencing Guidelines.”                    United States v.

Wheeler, 322 F.3d 823, 828 (5th Cir. 2003).

      Here, we find no plain error in the district court’s inclusion

of Saenz’s 2004 DWI conviction and related probation violation in

his criminal history score, because if error there be, it was not

plain.   Saenz pleaded guilty in January 2004, twenty months after

the Supreme Court decided Shelton in May 2002.                      Therefore, the

question is whether twenty months was a sufficient amount of time

to establish a presumption of regularity, that is, a presumption

that the Colorado courts were aware of Shelton and properly applied

Shelton to Saenz’s 2004 DWI proceedings by offering him court-

appointed counsel, which he then would have waived.                   The answer is

not readily ascertainable, however, because the law is unclear as

to   whether   twenty      months   is   a   sufficient      amount    of    time    to

establish a presumption of regularity.             Compare Burgett v. Texas,

389 U.S. 109, 114-15 (1967) (no presumption of waiver where the law

in question had not yet been established at the time of the prior

conviction),     with      Parke    v.   Raley,   506    U.S.    20,    30    (1992)

                                         3
(presumption of regularity existed where the law in question had

been established “for nearly a quarter century”).2                    Accordingly,

any error was not plain.          See United States v. Palmer, 456 F.3d

484, 491 (5th Cir. 2006) (“A ‘plain’ error is one which is clear

under current law.”).

       Additionally, we find no plain error in the district court’s

inclusion of Saenz’s 2001 DWI conviction in his criminal history

score, because the error did not affect his substantial rights.

Saenz pleaded guilty to his 2001 DWI conviction before the Supreme

Court decided Shelton; therefore, under Burgett, we presume Saenz

did   not   waive   his   right    to    counsel    and     the    conviction      was

unconstitutional.      See Burgett, 389 U.S. at 114-15.               Accordingly,

the district court erred by including Saenz’s 2001 DWI conviction

in    his   criminal   history.         The    inclusion,    however,       did    not

constitute     plain   error      because      it   did   not      affect    Saenz’s

substantial     rights.     Without      the    inclusion     of    the     2001   DWI

conviction, Saenz would have received 6 criminal history points,

yielding a criminal history category of III.                 A criminal history

category of III, when combined with Saenz’s total offense level of

21, would result in a Guidelines range of 46 to 57 months.                     Thus,

even if we were to remand, the district court could reinstate the


       2
       Iowa v. Tovar, 541 U.S. 77 (2004), is not on-point because
there the evidence clearly demonstrated that the defendant waived
his right to counsel. See id. at 82. Here, the evidence does not
show whether Saenz waived his right to counsel.


                                         4
same sentence of 57 months.      Accordingly, under the plain error

standard of review, we leave the district court judgment in place.

See Wheeler, 322 F.3d at 828.

                                 III.

     Saenz also argues that his sentence violates due process

because it exceeds the statutory maximum sentence for violations of

8   U.S.C.   §   1326(a).   As   this   argument   is   foreclosed   by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), it

fails.

                                 IV.

     For the foregoing reasons, Saenz’s sentence is

                                                             AFFIRMED.




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