     Case: 14-50816       Document: 00512982710         Page: 1     Date Filed: 03/26/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                     No. 14-50816                                  FILED
                                   Summary Calendar                           March 26, 2015
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

RAFAEL CASTILLO, JR.,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 6:14-CR-98


Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM: *
       Rafael Castillo, Jr. challenges his sentence, imposed following his guilty-
plea conviction for possession, with intent to distribute, methamphetamine, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(c). He claims the district court erred
in calculating his advisory Sentencing Guidelines sentencing range by
including three Texas convictions in his criminal-history calculation because




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                  No. 14-50816

they were uncounseled misdemeanor convictions that resulted in a term of
imprisonment.
      Although post-Booker, the Guidelines are advisory only, and a properly
preserved objection to an ultimate sentence is reviewed for reasonableness
under an abuse-of-discretion standard, the district court must still properly
calculate the advisory Guidelines-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines
is reviewed de novo; its factual findings, only for clear error. E.g., United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      Accordingly, we review whether “a prior conviction is covered under the
[Guidelines] . . . de novo, while factual matters concerning the prior conviction
are reviewed for clear error”. United States v. Haymer, 995 F.2d 550, 552 (5th
Cir. 1993) (citation and internal quotation marks omitted). “Under a clear
error standard, we will uphold a finding if it is plausible in the light of the
entire record.” United States v. Rubio, 629 F.3d 490, 492 (5th Cir. 2010)
(citation omitted). In other words, to find clear error, the court must be “left
with the definite and firm conviction that a mistake has been committed”. Id.
(internal citation and quotation marks omitted).
      Castillo has the burden of proving he did not competently and intelligibly
waive his right to the assistance of counsel in this collateral challenge to
incorporation of his Texas misdemeanor convictions. E.g., id. at 493 (quoting
Iowa v. Tovar, 541 U.S. 77, 92 (2004)). He has not satisfied his burden. While
an uncounseled misdemeanor conviction is generally unconstitutional if it
results in a term of imprisonment, e.g., Alabama v. Shelton, 535 U.S. 654, 661-
62 (2002), “an uncounseled misdemeanor conviction, valid . . . because no
prison term was imposed, is also valid when used to enhance punishment at a



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                                  No. 14-50816

subsequent conviction”, Nichols v. United States, 511 U.S. 738, 749 (1994). In
that regard, Castillo’s misdemeanor convictions were punishable only by a fine.
See Tex. Penal Code Ann. §§ 12.23, 22.01(a)(3), (c).
      In imposing sentence, the district court found that Castillo opted to serve
time in jail in lieu of paying a fine. This finding is supported by Texas state-
court records stating Castillo was given “full jail credit” for all three offenses,
and is consistent with Texas law. See Tex. Code Crim. Proc. Ann. art. 43.09(a).
Castillo offered no evidence to the contrary.
      Because Castillo has not demonstrated he was sentenced to a term of
imprisonment for the Texas misdemeanors, he was not entitled to an attorney.
E.g., Nichols, 511 U.S. at 743. Accordingly, the uncounseled misdemeanor
sentences for which no term of imprisonment was imposed were properly
included in Castillo’s criminal history for sentencing in district court. E.g.,
U.S.S.G. § 4A1.2, cmt. (backg’d); United States v. Perez-Macias, 335 F.3d 421,
425-29 (5th Cir. 2003).
      AFFIRMED.




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