     Case: 11-50866     Document: 00511901791         Page: 1     Date Filed: 06/27/2012




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

                                                                            FILED
                                                                           June 27, 2012
                                     No. 11-50866
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ESTABAN ALFREDO LOZANO-GALVAN, also known as Esteban Alfredo
Lozano-Galvan,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:11-CR-102-1


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Estaban Alfredo Lozano-Galvan appeals his sentence following his
conviction of illegal reentry following deportation. He contends that the district
court erred by assigning one criminal history point to his uncounseled 2011 state
court conviction of driving while intoxicated (DWI) because the record does not
demonstrate that he was warned adequately of the perils of proceeding pro se
before he waived the right to counsel. He further contends that the 16-level


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-50866    Document: 00511901791      Page: 2   Date Filed: 06/27/2012

                                  No. 11-50866

adjustment imposed pursuant to U.S.S.G. § 2L1.2(b)(1)(A) (2010) for a prior
conviction of a crime of violence renders his sentence unreasonable because the
Guideline is not supported by empirical evidence.
      Pursuant to Gall v. United States, 552 U.S. 38, 49-51 (2007), we first
consider whether the district court committed a “significant procedural error,”
such as miscalculating the advisory guidelines range. United States v. Delgado-
Martinez, 564 F.3d 750, 752-53 (5th Cir. 2009) (internal quotation marks and
citation omitted). If there is no error or the error is harmless, we may then
review the substantive reasonableness of the sentence imposed for an abuse of
discretion. Id. at 753. We review the district court’s interpretation of the
Sentencing Guidelines de novo and its factual findings for clear error. United
States v. Pino Gonzalez, 636 F.3d 157, 159 (5th Cir.), cert. denied, 132 S. Ct. 178
(2011).
      The burden of demonstrating that the waiver of the right to counsel was
unknowing and involuntary is on Lozano-Galvan. See United States v. Rubio,
629 F.3d 490, 493 (5th Cir. 2010). The state court waiver form indicated that
Lozano-Galvan was informed that he had a right to hire and retain an attorney,
had the right to request appointed counsel if he could not afford to retain
counsel, and that he knowingly and understandingly waived the right to counsel.
Lozano-Galvan’s argument that the record does not show that he was adequately
informed of the perils of proceeding pro se is unsupported by any evidence, and
the argument itself is inadequate to carry the burden of proving that the waiver
was involuntary. See United States v. Osborne, 68 F.3d 94, 101 (5th Cir. 1995).
Lozano-Galvan has failed to show that the district court erred. Moreover, any
error in assigning the criminal history point was harmless because Lozano-
Galvan’s criminal history score of 14 would have been lowered to 13 without the
disputed point, and he would still have been in criminal history category VI. See
United States v. Jackson, 22 F.3d 583, 585 (5th Cir. 1994).



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   Case: 11-50866   Document: 00511901791     Page: 3   Date Filed: 06/27/2012

                                 No. 11-50866

      Lozano-Galvan concedes that his challenge to the 16-level crime of violence
adjustment based on § 2L1.2(b)(1)(A) lacking an empirical basis is foreclosed ;
he raises the issue to preserve it for further review. Lozano-Galvan is correct;
his contention is foreclosed. See United States v. Duarte, 569 F.3d 528, 529-31
(5th Cir. 2009).
      AFFIRMED.




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