                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              JAN 28 1997
                                  TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
 v.                                                        No. 96-6185
                                                     (D.C. No. CR-96-15-L)
 ENRIQUE ENRIQUEZ,                                (Western District of Oklahoma)

       Defendant-Appellant.



                       __________________________________

                             ORDER AND JUDGMENT*




Submitted on the Briefs:
                       __________________________________


Before SEYMOUR, Chief Judge, PORFILIO, Circuit Judge, and MURPHY, Circuit
Judge.




  *
     This order and judgment is not binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. This 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.
          Defendant Enrique Enriquez was convicted of conspiracy to possess with intent to

distribute and to distribute marihuana under 21 U.S.C. § 846 and extortion under

18 U.S.C. § 894. He was sentenced to two concurrent terms of 104 months. Defendant

appeals, raising issues relating to the sufficiency of the evidence and sentencing. We

affirm.

          The critical evidence against the defendant was presented essentially through the

testimony of Kirby Kyles, a former confederate in the drug business, and tape recordings

of telephone conversations between them. Mr. Enriquez contends the evidence of his

participation in the charged conspiracy was insufficient because the government failed to

prove when the defendant became a member of the conspiracy, with whom he conspired,

and when he possessed marihuana with intent to distribute. He maintains the evidence of

extortion was devoid of proof that his extortionate acts were committed to collect an

extension of credit as required by § 894(a)(1). Our review of the record indicates these

arguments are without foundation.

          Kirby Kyles testified he had purchased marihuana from the defendant and a

“Mexican organization here in Oklahoma City” since the summer of 1995. Kyles stated

the organization was headed by “a Mexican male, Raymond, last name unknown.” When

arrested, Kyles owed the organization $120,000 for marihuana he purchased from the

Mexican organization and sold.




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       Kyles obtained marihuana from the organization under a practice he identified as a

“week to two week front.” Kyles would receive from 50 to 200 pound shipments of

marihuana which he would package and sell to others. Those customers would, in turn,

sell the contraband and pay Kyles at a later date. Within one to two weeks after receiving

his shipment, Kyles would pay Raymond the money he owed on the “front.” Kyles

defined “the front” as “buy[ing] on credit.”

       After Kyles’ arrest for dealing in marihuana, defendant visited him in his place of

business to collect the $120,000. On that occasion, Mr. Enriquez was driving a vehicle

Kyles had seen driven by Raymond and known to Kyles as an automobile “the

organization used for some time.”

       In telephone conversations between Kyles and defendant, Mr. Enriquez made

efforts to get Kyles to pay the $120,000 debt he owed Raymond. In one such

conversation, after Kyles asked for some forbearance on payment, defendant said

Raymond might be agreeable, but “there’s somebody top of him and then somebody top

of that other guy and ah, you know how it goes, it [sic] a big old chain that ah . . . never

finish [sic].”

       We are satisfied from this evidence the government established defendant

conspired with Kyles, Raymond, and others to possess for sale and to sell marihuana and

that defendant was a knowing and voluntary participant in the conspiracy. This




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sufficiently established his guilt. United States v. Angulo-Lopez, 7 F.3d 1506, 1510

(10th Cir. 1993).

       Next, defendant challenges the sufficiency of the evidence of extortion. Although

the original intent of Congress in passing 18 U.S.C. § 894 may have been to deter loan

sharking, the language employed in the law reaches beyond that nefarious conduct.

Indeed, the statute makes illegal the knowing participation in the use of extortionate

means to collect “any extension of credit.” (Emphasis added.) An extension of credit is

defined to include “any agreement . . . whereby the repayment or satisfaction of any debt .

. . may . . . be deferred.” 18 U.S.C. § 891(1). The explicit language of this statute makes

clear the debt itself does not have to be valid because the essential aspect of the offense is

the use of extortionate means of collection. United States v. Briola, 465 F.2d 1018, 1021,

(10th Cir. 1972).

       Mr. Enriquez admits the evidence demonstrated he exercised extortionate conduct,

but he maintains it failed to show he did so to force payment of an extension of credit. He

suggests Kyles merely received the marihuana “on consignment,” and no credit was

extended to him. Notwithstanding there is no evidence in the record to support that

suggestion, there is ample evidence of defendant’s guilt.

       First, there was Kyles’ own testimony that goods were shipped to him under terms

of what he specifically defined as a credit transaction. Next, although the telephone

conversations between defendant and Kyles were semi-cryptic, there is enough said


                                             -4-
between the two from which the jury could infer the existence of a debt owed by Kyles to

Raymond arising from the shipment of marihuana. Finally, during those conversations,

defendant several times set deadlines for payment which he later postponed, demanding

payment after the expired deferred date. We believe these constituted sufficient evidence

showing the existence of an extension of credit within the meaning of the statute. United

States v. Goode, 945 F.2d 1168, 1170 (10th Cir. 1991).

       Defendant next argues the district court erred by using a prior uncounseled

conviction in Texas for driving while intoxicated to enhance his sentence in this case. He

contends even though the offense was a misdemeanor, he was entitled to counsel because

he was sentenced to seven days’ incarceration. Citing Nichols v. United States, 511 U.S.

738 (1994), defendant argues the enhancement was invalid.

       After Nichols, we held: “prior uncounseled misdemeanor convictions that are

themselves constitutional may be used to enhance punishment for subsequent

convictions.” United States v. Lockhart, 37 F.3d 1451, 1454 (10th Cir. 1994). Once the

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

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

States v. Windle, 74 F. 3d 997, 1001 (10th Cir. 1996) (citing United States v. Johnson,

973 F.2d 857, 862 (10th Cir. 1992)). Moreover, a record indicating counsel was waived

in the predicate misdemeanor case is sufficient, in the absence of contrary allegations, to

make the conviction constitutionally valid for enhancement purposes. Id.


                                            -5-
       In this case, the record includes documentation of defendant’s written and sworn

waiver of counsel. In the statement, the defendant swears he knows “the dangers and

disadvantages of representation of himself . . . that he knows what he is doing, and that he

does this after full explanation of his rights . . . [to] an attorney in all proceedings herein,”

and certifies that he is “financially able to employ counsel and is not indigent.” Yet,

defendant now argues under Texas law at the time of his conviction he was not entitled to

appointed counsel; therefore, he could not waive a right he did not have.

       Although that argument is irrelevant in light of defendant’s own sworn statement

he was not indigent and was able to employ counsel, we believe defendant has not shown

the waiver invalid or that the conviction was constitutionally infirm. The Sixth

Amendment right about which the constitutional issue here revolves is the right of an

indigent accused to the appointment of counsel. No violation of the Sixth Amendment

occurs when a well informed defendant who can afford to do so elects not to retain

counsel and enters a plea without representation. We believe defendant’s argument is

without substance, and the district court did not err by using the misdemeanor conviction

to enhance the sentence.

       Finally, defendant argues the counts of conviction should have been grouped for

the purpose of sentencing under U.S.S.G. § 3D1.2. Because both counts were part of “a

common criminal objective”; the extortion count was an overt act cited in the conspiracy




                                              -6-
count; and there was only one victim, defendant maintains the district court erred by

refusing to group the counts.

       The guideline mandates grouping when there is but one victim and all criminal

transactions are “connected by a common criminal objective” or are part of a “common

scheme or plan.” First, as the government points out, Kyles was not a victim of the

conspiracy, he was one of the conspirators. Kyles, however, was the victim of the

extortion. Therefore, the first step of § 3D1.2 is never reached, and the offenses of

conviction did not require grouping.



       AFFIRMED.



                                          ENTERED FOR THE COURT



                                          John C. Porfilio
                                          Circuit Judge




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