                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         APR 25 2005
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 04-4090
          v.                                   (D.C. No. 2:02-CR-768-02-TC)
 JESUS DUARTE-GUTIERREZ,                                  (D. Utah)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Defendant Jesus Duarte-Gutierrez pleaded guilty to attempted distribution

and aiding and abetting in the attempted distribution of 50 grams or more of

actual methamphetamine. See 21 U.S.C. § 841(a)(1) (distribution); 18 U.S.C. § 2

(aiding and abetting) The presentence report (PSR), citing two prior state-court

convictions, awarded Defendant two criminal history points and concluded he


      *
        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not binding precedent, except under the doctrines of law of the case, res judicata,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.
belonged in criminal history category II. Defendant’s total offense level and

criminal-history category II yielded a 120-to-151-month sentencing range.

      In written objections and at the sentencing hearing, Defendant objected to

the use of a driving-under-the-influence (DUI) conviction in Tooele County

Justice Court, Utah, in assessing his criminal history category. He conceded that

the prosecution established the fact of conviction, but contended that the

conviction is constitutionally infirm because he did not knowingly and voluntarily

waive his right to counsel.

      The prosecution produced a single-page document from the Justice Court

proceedings, signed by Defendant and the presiding judge, that includes the

following statement:

             Prior to acceptance of the guilty plea, the court made the
             following findings:

        X    If the defendant is not represented by counsel, he has
             knowingly waived his right to counsel and does not desire
             counsel.

R. Vol. I, Doc. 102, Exhibit B. Defendant, who does not speak English, admitted

both that a translator was present at the hearing and that his signature appears on

the document, although he did not recollect signing it. He testified, however, that

there was no public defender present; that he had not slept the night before his

hearing; that the judge did not advise him of the maximum sentence for the

offense or the perils of proceeding without an attorney; and that the judge had

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informed him that if he pleaded guilty, he would not need an attorney and would

be released that afternoon.

      The district court, after reviewing the document and hearing this testimony,

concluded that Defendant had not overcome the presumption of regularity that

attaches to final judgments and that the waiver of counsel was knowing and

voluntary. The court explained:

             There is no question but that he was convicted. There is a
      presumption of validity that goes with that conviction. Looking at
      the limited focus of this collateral attack, [the Justice Court
      document], which is filled out by the judge and signed by
      [Defendant] with the aid of an interpreter, shows that he knowingly
      and voluntarily waived his right to counsel, and shows that the court
      questioned him on it. That is sufficient.

R. Vol. II at 27. The court rested its ruling on its finding that Defendant’s

testimony was not credible:

      The reason I found that [Defendant] was not denied counsel is that
      his testimony did not overcome the presumption [of regularity]. I
      find that his testimony simply was not believable in light of the
      written record, the findings by the judge, and the fact that he signed
      his name and had an interpreter. So I did not find his testimony
      credible.

Id. at 30. Defendant was sentenced to the guidelines minimum of 121 months and

60 months of supervised release.

      Defendant appeals, arguing that the DUI conviction is constitutionally

infirm because he did not knowingly and voluntarily waive his right to counsel

and the district court’s contrary finding is clear error. “We review the district

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court’s interpretation and application of the Sentencing Guidelines de novo and

its factual findings for clear error.” United States v. Cruz-Alcala, 338 F.3d 1194,

1196 (10th Cir. 2003) (internal quotation marks omitted). We also apply de novo

review when determining the constitutionality of state court convictions used in

sentencing proceedings. United States v. Wicks, 995 F.2d 964, 975 (10th Cir.

1993). Finally, “[w]e defer to the district court’s credibility determinations.”

Cruz-Alcala, 338 F.3d at 1198.

      Like the Cruz-Alcala defendant, Defendant does not dispute that the

government established the existence of the disputed conviction.

      Once the prosecution establishes the existence of a conviction, the
      defendant must prove by a preponderance of the evidence that the
      conviction was constitutionally infirm. Moreover, there is a
      presumption of regularity that attaches to final judgments, even when
      the question is waiver of constitutional rights. To overcome this
      presumption, a defendant may not simply point to a silent or
      ambiguous record, but must come forward with affirmative evidence
      establishing that the prior convictions were obtained in violation of
      the Constitution.

Cruz-Alcala, 338 F.3d at 1197 (internal citations, quotation marks, and emphasis

omitted). The presumption applies even where there are no records of the court

proceedings underlying the conviction. Parke v. Raley, 506 U.S. 20, 30-31

(1992).

      Defendant marches through the various requirements for establishing a

knowing and voluntary waiver of the right to counsel, see generally United States


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v. Padilla, 819 F.2d 952, 956-57 (10th Cir. 1987), and argues that the

prosecution’s proffered document does not meet the requirements. This

argument, however, misses the point of the presumption. Once the existence of a

conviction is established, the presumption of regularity attaches and we assume

that the convicting court complied with the law in all respects, including the

requirements for establishing a waiver of the right to counsel. The government is

not required to offer any evidence of compliance; Defendant must prove

noncompliance. Defendant provides no authority to support his contention that

this presumption vanishes for a court if the qualifications for judges of the court

is too low.

      The only evidence of noncompliance was Defendant’s own testimony, and

the district court concluded that he was not credible. Thus, the presumption of

regularity was not overcome. Here, the district court properly counted the DUI

conviction when calculating Defendant’s criminal-history score.

      The judgment of the district court is AFFIRMED.


                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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