                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                                 SEP 20 2002
                              FOR THE TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                    Clerk

    UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

    v.                                                    No. 01-2195
                                                    (D.C. No. CR-00-662-BB)
    GUSTAVO MOLINA-BARAJAS,                             (D. New Mexico)
    also known as Gustavo Lopez-Ibarra,

                  Defendant - Appellant.


                               ORDER AND JUDGMENT         *




Before O’BRIEN and PORFILIO , Circuit Judges, and             KANE , ** Senior
District Judge.



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

unanimously that oral argument would not materially assist the determination

of this appeal.    See Fed. R. App. P. 34(a)(2); 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      This order and judgment is not binding precedent, except under the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.
**
      The Honorable John L. Kane, Senior District Judge, United States District
Court for the District of Colorado, sitting by designation.
                                          I.

      Defendant-appellant Gustavo Molina-Barajas was indicted in the United

States District Court for the District of New Mexico for one count of reentering

the United States in violation of 8 U.S.C. §§ 1326(a)(1), (a)(2), and (b)(2).

Defendant pled guilty to the charge, and the district court sentenced him to

fifty-seven months’ imprisonment and three years of supervised release.

Defendant appeals his sentence, claiming the district court erred in calculating his

criminal history category under USSG § 4A1.1. We exercise jurisdiction under 18

U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm defendant’s sentence.

      Following the entry of defendant’s guilty plea, a United States probation

officer prepared a presentence report (PSR), recommending that defendant be

sentenced based on a criminal history category of IV and an offense level of 21.

Defendant filed objections to the PSR, arguing, inter alia, that the district court

could not assess one criminal history point under USSG § 4A1.1(c) for a prior

misdemeanor burglary conviction in municipal court in Los Angeles, California,

because he was not represented by counsel in that case. In response to

defendant’s objection, the probation officer prepared an addendum to the PSR in

which she stated that defendant waived his right to counsel in the California case.

As evidence of the waiver, the probation officer produced a document entitled




                                          -2-
“Case Summary” from the Municipal Court of Los Angeles, case No. 91R19658.

The Case Summary states as follows:

       Defendant is present in court, and not represented by counsel . . .
       Defendant advised of the following rights via video cassette:
       Defendant arraigned and advised of the following rights at
       mass advisement: speedy public trial, trial within 30/45 days, right
       to remain silent, subpoena power of court, confrontation and
       cross examination, jury trial, court trial, right to attorney, self
       representation, reasonable bail, citizenship, effect of priors, pleas
       available probation. . . .

       Defendant personally waives right to counsel, appearing in propria
       persona. Court advises defendant that self-representation is almost
       always an unwise choice, and will not work to his advantage; further,
       that he will not be helped or treated with special leniency by the
       court or the prosecutor, and that he will be held to the same standards
       of conduct as an attorney. Further, if he wishes to represent himself,
       he will not be able to claim later that he made a mistake, or that he
       received ineffective assistance of counsel. . . . [Court] determines
       that defendant is competent to represent himself.

       Defendant advised of and personally and explicitly waives the
       following rights: representation by counsel . . . .

See Ex. B to Appellee’s Answer Br. at 3-4 (type face modified).

       At the sentencing hearing, defendant’s counsel reiterated the objection to

the assessment of one criminal history point for the California conviction.    See R.,

Vol. V at 5. However, defendant’s counsel did not offer any evidence to rebut the

statement in the Case Summary that defendant had waived his right to counsel.

Instead, counsel only informed the court that she had requested that the

government produce a copy of a written waiver signed by defendant, but the


                                            -3-
government had not produced any such document to her.            See id. The district

court overruled defendant’s objection to the assessment of one criminal history

point for the California conviction,      see id. at 6, and the court adopted the factual

findings and guideline applications in the PSR,       see id. at 9.

       On appeal, defendant again argues that the district court erred in assessing

one criminal history point for the California conviction, and he again points to the

lack of a signed waiver of his right to counsel. For the first time, defendant also

claims on appeal that: (1) he could not have knowingly and intelligently waived

his right to counsel because he only has a fifth grade education; he suffered a

head injury prior to the waiver; and there is no indication an interpreter was

provided for him; and (2) there is a question of fact as to whether he committed

the burglary charged in the California case. To support the latter assertion,

defendant points to the fact that the name of the defendant in the California case

was “Gustavo Adolfo Juarez.”     1
                                       See Ex. B to Appellee’s Answer Br. at 1. He also

points out that, according to the Case Summary, the defendant in the California

case was born on November 18, 1965,          see id. , while he was born on

November 19, 1966, according to the PSR.




1
       According to the addendum to the PSR, the Federal Bureau of Investigation
had linked defendant to the alias “Gustavo Adolfo Juarez” through fingerprint
analysis.

                                              -4-
                                              II.

       We review the district court’s application of the sentencing guidelines de

novo and its factual findings for clear error, giving due deference to the court’s

application of the guidelines to the facts.     See United States v. Henry , 164 F.3d

1304, 1310 (10th Cir. 1999). Likewise, we review de novo the question of

whether a waiver of counsel is voluntary, knowing, and intelligent.       See United

States v. Taylor , 113 F.3d 1136, 1140 (10th Cir. 1997).

       Because defendant was imprisoned on the California conviction,        2
                                                                                 there is

no question he had a right to counsel under the Sixth Amendment.          See

Argersinger v. Hamlin , 407 U.S. 25, 37 (1972). There is also no question that

defendant may collaterally attack the use of the California conviction to enhance

his sentence in this case if the conviction was obtained in complete violation of

his right to counsel.   See United States v. Garcia    , 42 F.3d 573, 581 (10th Cir.

1994). On the other hand, it is equally well established that defendant has a

constitutional right to waive his right to counsel.     See United States v. Windle , 74

F.3d 997, 1001 (10th Cir. 1996). Further, if defendant entered into a valid

waiver, the waiver precludes him from collaterally attacking the California

conviction.   Id.



2
       Defendant was sentenced to twenty days in jail and twenty-four months’
probation for the burglary charge. See Ex. B to Appellee’s Answer Br. at 1.

                                              -5-
      Because the Case Summary shows that defendant expressly waived his right

to counsel in the California case, it was defendant’s burden to prove the waiver

was not knowingly and intelligently made, or is otherwise constitutionally infirm.

See United States v. Williamson   , 806 F.2d 216, 220 (10th Cir. 1986);   see also

Windle , 74 F.3d at 1001 (holding that, “[o]nce the prosecution establishes the

existence of a [prior] conviction for use in enhancing the defendant’s sentence,

the defendant must prove by a preponderance of the evidence that the conviction

was constitutionally infirm”). As set forth above, defendant failed to put forth

any evidence in the district court proceedings to show that the Case Summary was

in any way inaccurate, and he likewise offered no evidence to establish that the

waiver of counsel summarized therein was not voluntary, knowing, and

intelligent. Instead, defendant’s only objection was that the government had not

produced a signed waiver, and that objection was irrelevant given defendant’s

failure to offer any substantive evidence to contradict the Case Summary.

Accordingly, we agree with the district court that the California conviction is

constitutionally valid for enhancement purposes.     See Windle , 74 F.3d at 1001

(holding that 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).




                                           -6-
       Finally, for the first time on appeal, defendant has put forth several vague

and conclusory reasons as to why the waiver of counsel in the California case was

invalid. However, each of the reasons put forth by defendant involve factual

issues that must be raised in the district court in the first instance or they are

waived. See United States v. Saucedo , 950 F.2d 1508, 1518 (10th Cir. 1991),

overruled on other grounds , Stinson v. United States , 508 U.S. 36 (1993).

Moreover, “[a] factual dispute concerning the applicability of a particular

guideline, not brought to the attention of the district court, does not rise to the

level of plain error.”   Id. This same waiver rule also applies to defendant’s claim

that there is a question of fact as to whether he committed the burglary charged in

the California case, and we are prohibited from considering that claim for the first

time on appeal.    See United States v. Jones , 80 F.3d 436, 438 (10th Cir. 1996)

(holding that a defendant’s claim of innocence with respect to a prior conviction

that was asserted for the first time on appeal “involve[d] a factual dispute

concerning the applicability of a particular guideline, which . . . does not rise to

the level of plain error”).

       The sentence imposed by the district court is AFFIRMED.


                                                       Entered for the Court


                                                       John L. Kane
                                                       Senior District Judge

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