     Case: 13-50386      Document: 00512615324         Page: 1    Date Filed: 05/01/2014




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

                                                                                    FILED
                                    No. 13-50386                                 May 1, 2014
                                  Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

OTTO SAUL MARTINEZ-MIER,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:12-CR-1936-1


Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.
PER CURIAM: *
       Otto Saul Martinez-Mier (Martinez) appeals the sentence imposed
following his guilty plea conviction for one count of illegal reentry in violation
of 8 U.S.C. § 1326. The district court sentenced Martinez to 60 months of
imprisonment and to three years of non-reporting supervised release. On
appeal, Martinez contends that the district court erred by assigning criminal
history points to three uncounseled prior state convictions. Martinez further


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-50386

contends that the district court erred in applying a 16-level enhancement
pursuant to U.S.S.G § 2L1.2 and by not granting his request for a downward
variance based on his cultural assimilation.
      This court reviews a district court’s interpretation of the Guidelines de
novo and its findings of fact for clear error. United States v. Rubio, 629 F.3d
490, 492 (5th Cir. 2010). Under the clear error standard, this court “will uphold
a finding if it is plausible in the light of the entire record.” Id. A finding is
clearly erroneous if, based on the record, this court is “left with the definite and
firm conviction that a mistake has been committed.” Id. (internal citation and
quotation marks omitted).
      A defendant may collaterally attack a prior conviction used for
sentencing purposes if the prior conviction was obtained in violation of his
constitutional right to counsel. Custis v. United States, 511 U.S. 485, 487, 496
(1994). It is Martinez’s burden to prove that his prior Colorado convictions
were constitutionally invalid. United States v. Rubio, 629 F.3d 490, 492 (5th
Cir. 2010); United States v. Guerrero-Robledo, 565 F.3d 940, 944 (5th Cir.
2009); Sanchez-Martinez v. People, 250 P.3d 1248, 1255 (Colo. 2011).
      With regard to his 2005 Colorado theft conviction, Martinez argues that
he was not represented by counsel and that the state court documents are
unclear whether he validly waived his right to counsel because the form
advising him of his rights is unsigned; however, the state court documents
show that he waived his right to counsel in open court. In addition, the theft
conviction was rendered long after the Supreme Court established the
constitutional right to counsel for this offense such that a “presumption of
regularity” attaches to this conviction. See Guerrero-Robledo, 565 F.3d at 943-
44 (discussing Parke v. Raley, 506 U.S. 20, 31 (1992)). Further, at the time of
the conviction, Colorado law required that a criminal defendant be informed



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about his right to counsel. See COLO. R. CRIM. P. 44(a). Given that the state
documents show that Martinez waived his right to counsel in open court, that
the right to counsel was well-established, and that Colorado law required
admonishment about the right to counsel at the time of the theft conviction,
Martinez has not sustained his burden of showing that the conviction was
uncounseled. See Guerrero–Robledo, 565 F.3d at 945.
      Next, Martinez argues that he was uncounseled in connection with a
Colorado conviction for harassment and that the state court records are
unclear whether he validly waived his right to counsel. In that case, Martinez
was sentenced to probation in 2007, which was later revoked in 2008; a 60-day
jail sentence was imposed on revocation. Martinez argues that the state court
documents suggest that he was represented by appointed counsel at the 2008
revocation hearing but uncounseled in connection with the harassment
conviction. Because Martinez did not receive a term of imprisonment on the
harassment conviction, he was not entitled to counsel. See United States v.
Perez-Macias, 335 F.3d 421, 427-28 (5th Cir. 2003); United States v. Rios-Cruz,
376 F.3d 303, 304-05 (5th Cir. 2004).
      Martinez’s vague and conclusory argument that he was uncounseled on
a Nevada conviction for petty larceny and that the documents do not show he
validly waived his right to an attorney is reviewed at most for plain error
because although he objected in that regard prior to sentencing, he did not
reurge the objection at sentencing. See United States v. Arviso-Mata, 442 F.3d
384, 384 & n.7 (5th Cir. 2006). To show plain error, Martinez must show a
forfeited error that is clear or obvious and that affects his substantial rights.
See Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a
showing, this court has the discretion to correct the error, but it will do so only




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if the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings. See id.
      Questions of facts capable of resolution by the district court can never
constitute plain error. See United States v. Chung, 261 F.3d 536, 539 (5th Cir.
2001). Whether Martinez was represented by counsel on a prior conviction is
a question of fact that could have been resolved at sentencing following a
proper objection. See id. Because Martinez failed to make such an objection
and obtain a finding by the district court, he cannot show plain error. See id.
      In addition, regardless whether the district court erred by assigning one
point to the Nevada conviction, any error was harmless. See United States v.
Scroggins, 485 F.3d 824, 834-35 (5th Cir. 2007). In particular, if one point is
deducted from Martinez’s criminal history score of 8, his criminal history
category and guidelines range remain the same. Consequently, any error in
scoring the Nevada conviction was harmless because it did not affect the
sentencing range.
      Next, Martinez asserts that the district court erred by applying a 16-
level enhancement pursuant to § 2L1.2 as a result of his conviction in Idaho
for aggravated assault. In support of this assertion, Martinez contends that
the state court judgment is unclear whether he was convicted of assault or
aggravated assault; he appears to concede that an Idaho conviction for
aggravated assault is a crime of violence. Because Martinez did not object in
the district court on this ground, review is for plain error only. See United
States v. Gonzalez-Terrazas, 529 F.3d 293, 296 (5th Cir. 2008). Our review of
the state court documents confirms that Martinez was convicted of aggravated
assault. Thus, he has not established error, plain or otherwise, in connection
with the 16-level enhancement. See Puckett, 556 U.S. at 135.




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      Finally, Martinez’s argument that the district court erred by failing to
grant his request for a downward variance based on his cultural assimilation
is without merit. We review sentences for substantive reasonableness, in light
of the 18 U.S.C. § 3553(a) factors, under an abuse of discretion standard. Gall
v. United States, 552 U.S. 38, 49-51 (2007). A within-guidelines sentence is
entitled to a presumption of reasonableness.       United States v. Campos-
Maldonado, 531 F.3d 337, 338 (5th Cir. 2008) “The presumption is rebutted
only upon a showing that the sentence does not account for a factor that should
receive significant weight, it gives significant weight to an irrelevant or
improper factor, or it represents a clear error of judgment in balancing
sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
The district court considered Martinez’s request for a downward variance, the
Government’s argument in favor of a within-guidelines sentence, and the
§ 3553(a) factors. Martinez’s arguments concerning his cultural assimilation
and personal circumstances fail to rebut the presumption of reasonableness.
See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).
      AFFIRMED.




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