                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                            April 19, 2007
                                  TENTH CIRCUIT                          Elisabeth A. Shumaker
                             __________________________                      Clerk of Court

 U N ITED STA TES O F A M ER ICA,

           Plaintiff-Appellee,

 v.                                                         No. 06-4032
                                                              (D. Utah)
 AD AM SANCH EZ,                                   (D.Ct. No. 2:05-CR-531-DAK)

           Defendant-Appellant.
                         ____________________________

                                 OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




       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.

       Adam Sanchez (Sanchez), appeals from his sentence, arguing the district

court erred in using several prior convictions obtained in violation of the Sixth

Amendment right to counsel to calculate his criminal history. W e AFFIRM .



       *
         This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      I. Background

      On November 8, 2005, Sanchez pled guilty to possession of a firearm by a

convicted felon in violation of 18 U.S.C. § 922(g)(1). A Presentence Report

(PSR ) was prepared on December 12, 2005. In calculating his sentence under the

2004 United States Sentencing Guidelines (USSG ), the Presentence Investigation

Report (PSR) assigned Sanchez a base offense level of 20 under USSG

§2K2.1(a)(4)(A) and subtracted 3 levels for acceptance of responsibility under

USSG §3E1.1 resulting in a total offense level of 17. The PSR also calculated

Sanchez’s criminal history category under USSG §4A1.1 based on prior

convictions resulting in a subtotal of 9 criminal history points. An additional 2

points were added to his criminal history calculation under USSG §4A1.1(e)

because Sanchez committed his current offense less than two years after being

released from confinement for his 2000 attempted robbery felony conviction.

This amounted to a total criminal history score of 11, which established a

criminal history category of V. Based on a total offense level of 17 and a

criminal history category of V, Sanchez’s guideline range of imprisonment was

46 to 57 months. See USSG §5A.

      On January 13, 2006, Sanchez filed written objections to the inclusion of

his DUI conviction in 2000, retail theft conviction in 2001, theft by deception

conviction in 2003, and possession of drug paraphernalia conviction in 2005 when

calculating his criminal history category. Because nothing in the record

                                         -2-
specifically stated he waived his right to counsel in those convictions, Sanchez

claimed they could not be used in the calculation of his criminal history category.

See Alabama v. Shelton, 535 U .S. 654, 658 (2002) (a defendant who receives a

suspended or probated sentence to imprisonment has a constitutional right to

counsel); Custis v. United States, 511 U.S. 485, 487 (1994) (except for

convictions obtained in violation of the right to counsel, a defendant has no right

to collaterally attack the validity of previous state convictions that are used to

enhance his sentence); Burgett v. Texas, 389 U.S. 109, 114 (1967) (convictions

obtained in violation of the right to counsel cannot be used against a person either

to support guilt or enhance punishment for another offense). Attached to

Sanchez’s objections were the docket sheets for each of the four contested

convictions used to calculate his criminal history category and a letter from

Justice Court Judge Kunz who presided over each conviction except the one in

2005. 1




          1
        The relevant portion of the letter from Judge Kunz stated: “At the time Mr.
Sanchez entered his plea on the DUI, it was my practice to discuss a defendant’s rights
and ask one to sign a waiver document. My docket reflects the discussion. But no waiver
form appears in the file, and I have no idea why one does not. I would not have required
a signed waiver before proceeding to trial before the Alabama vs. Shelton came down.”
[535 U.S. 654 (2002).” (R. Vol. I, Def.’s Obj.’n to PSR, Ex. 5.)
       Prior to Alabama v. Shelton, the Supreme Court had held counsel must be
appointed for any charged crime that “actually leads to imprisonment.” Argersinger v.
Hamlin, 407 U.S. 25, 33 (1972). In Shelton, the Court expanded the right to counsel for
any charge that may end up in the actual deprivation of a persons liberty.” Shelton, 535 at
658 (internal quotations omitted).

                                            -3-
         On January 11, 2006, the probation officer filed an addendum to the PSR

stating no changes w ere to be made because the docket sheets for the 2000 DUI

conviction, 2001 retail theft conviction, and 2003 theft by deception conviction

all indicated Sanchez had been advised of rights and penalties. Furthermore, the

PSR did not change its reference to the 2005 possession of drug paraphernalia

conviction. The PSR stated the docket sheet did not reflect an advisement of

rights or attorney representation, however, the right to legal representation for

indigent defendants had been mandated since 1980 for each case in which

imprisonment is likely to be adjudged, pursuant to Utah Code Annotated § 77-32-

301. 2

         On January 17, 2006, the government responded to Sanchez’s objections to

the PSR by arguing Sanchez failed to present evidence to establish by a

preponderance that his prior pleas were involuntary or unknowing. See United

States v. Windle, 74 F.3d 997, 1001 (10th Cir. 1996) (“the defendant must prove

by a preponderance of the evidence that the conviction was constitutionally

infirm.”); United States v. Wicks, 995 F.2d 964, 978 (10th Cir. 1993) (the

defendant has the entire burden of proving the invalidity of a conviction). After

hearing from both sides on January 19, 2006, the district court determined the




         2
        A review of the docket sheet reveals Sanchez was “advised of his rights” the
same day he pled guilty to possession of drug paraphernalia in 2005. (R. Vol. I, Def.’s
Obj.’n to PSR, Ex. 4.)

                                           -4-
notations in the docket sheets were sufficient for a presumption that Sanchez had

been advised of his rights and ruled the guideline calculations were correct. The

district court sentenced Sanchez to 46 months imprisonment.

      II. Discussion

      W e review the district 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).

      Sanchez had a right to counsel for the prior misdemeanor convictions in

which he was actually imprisoned and for those which he received a suspended

term of imprisonment. 3 See Argersinger, 407 U.S. at 37; Shelton, 535 U.S. at

657-58. But the right to counsel can be waived. Cruz-Alcala, 338 F.3d at 1197.

Once the government establishes the existence of a prior conviction, it becomes

the defendant's burden to prove by a preponderance of the evidence that the

conviction was unconstitutional. Id.; Windle, 74 F.3d at 1001. This is so

because a “presumption of regularity” attaches to final judgments even when

questions of waivers of constitutional rights are raised. Parke v. Raley, 506 U.S.



      3
         We have not determined whether Alabama v. Shelton applies retroactively. See
United States v. Cousins, 455 F.3d 1116, 1126-27 (10th Cir.), cert. denied, 127 S.Ct. 162
& 127 S.Ct. 706 (2006). Nevertheless, we need not address that issue because Sanchez’s
suspended sentence in the 2000 DUI case was revoked and he was actually imprisoned
for that offense. Additionally, while the 2001 retail theft sentence was suspended,
Sanchez served thirty days for possession of alcohol by a minor in the same case.
Therefore, Sanchez was actually imprisoned in connection with both offenses prior to the
2002 Shelton decision. The other two convictions were post-Shelton.

                                           -5-
20, 29 (1992).

      “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. “At a minimum, . . . a defendant

pointing to a silent or missing record of a prior plea proceeding must begin by

also submitting an affidavit or its equivalent asserting that the defendant's plea

was in fact not voluntary or was lacking the necessary understanding, and

specifying in detail the factual support for such assertion.” Wicks, 995 F.2d at

978. “Affidavits or testimony by judges, government and defense attorneys,

probation officers, and others involved in and knowledgeable about the

challenged proceedings, and directly supporting the defendant's position, would

be probative.” Id. at 979.

      On appeal, Sanchez relies heavily on Judge Kunz’s letter for the general

proposition that the convictions are invalid. Sanchez asserts it was Judge K unz’s

practice to have defendants sign a waiver of their right to counsel when they

plead guilty. Because there is no such waiver in any of his files or a notation on

any of the docket sheets to show this, Sanchez concludes this proves he did not

waive his right to counsel and renders those convictions constitutionally infirm.

It is well established that “absent a knowing and intelligent waiver, no person

may be imprisoned for any offense, whether classified as petty, misdemeanor, or

                                          -6-
felony, unless he was represented by counsel at his trial.” Argersinger, 407 U.S.

at 37. Contrary to Sanchez’s argument, however, this rule does not require a

signed written waiver. W hile Judge Kunz may have had the practice of requiring

a signed waiver, his letter did not state Sanchez failed to waive his right to

counsel. The letter does not breathe life into the silent or ambiguous record

presented here and therefore Sanchez has not overcome the presumption of

regularity assigned to his prior convictions.

      Sanchez also attacks the validity of each conviction on specific grounds.

W e address each separately.

      2000 DUI Conviction.

      Sanchez cites to Parke v. Raley, for the proposition that an “atypical” or

“suspicious” absence of a record supports an invalid conviction. 506 U.S. 20, 30

(1992). Sanchez misinterprets Parke. There, the Supreme Court determined that

where records are not kept or not available “it defies logic to presume from the

mere unavailability of a transcript (assuming no allegation that the unavailability

is due to governmental misconduct) that the defendant was not advised of his

rights.” 506 U.S. at 30. Sanchez has not alleged governmental misconduct and as

Judge Kunz explained in his letter “[t]he Justice Court is a court not of record as

mandated by the U tah Constitution and therefore no record of any proceeding [is]

ever made in my court.” (R. Vol. I, Def.’s Obj.’n to PSR , Ex. 5.) Sanchez has

not presented affirmative evidence that his D UI conviction was obtained in

                                          -7-
violation of the Constitution nor has he testified or presented an affidavit to this

effect. The docket sheet for the 2000 DUI conviction shows Sanchez was advised

of his rights and penalties and he has failed to overcome the presumption of

regularity attached to this conviction.

      2001 Retail Theft Conviction.

       Sanchez’s retail theft conviction is the only contested conviction which

involved a bench trial. He pled guilty to being a minor in possession of alcohol

and pled not guilty to retail theft and simple assault. After the bench trial,

Sanchez was found guilty of alcohol possession by a minor and retail theft, but

not guilty of simple assault. The docket sheet for this conviction reflects that

Sanchez cross examined one of the city’s w itnesses. (R. Vol. I, Def.’s O bj.’n to

PSR, Ex. 2.)

      On appeal, Sanchez asserts that because his 2001 retail theft conviction

occurred prior to Shelton and Judge Kunz did not require written waivers for

cases that proceeded to trial until after that case, Judge Kunz must have believed

the Sixth Amendment did not apply to misdemeanor cases that proceeded to trial.

W e decline to follow this line of reasoning. The fact Judge Kunz had the practice

of advising defendants of their rights, and the record reflects that Sanchez was

advised of his rights and penalties, proves the contrary. Since 1972, Argersinger

has applied the Sixth Amendment right to counsel to misdemeanor cases that

result in the actual deprivation of a person's liberty. 407 U.S. at 40.

                                          -8-
      Furthermore, Sanchez misinterprets the holding of Shelton to require signed

waivers prior to trial. Shelton merely extended the Argersinger standard (actual

imprisionment) to cases where a suspended sentence may result in the actual

deprivation of a person's liberty. Shelton, 535 U.S. at 658. Judge Kunz’s prudent

post-Shelton practice of requiring written waivers in cases where the defendant

may be given a suspended sentence cannot support the conclusion that Sanchez

did not waive his right to counsel prior to that decision. Sanchez has failed to

overcome the presumption of regularity attached to this conviction.

      2003 Theft by Deception Conviction.

      Sanchez argues the record for this conviction may be missing and therefore

the sentencing judge improperly relied solely on the PSR when it determined his

prior conviction was valid. United States v. Allen, 88 F.3d 765, 772 (9th Cir.

1996). In Allen, the district court applied prior convictions to the defendant’s

criminal history score even though the records did not reflect the defendant had

counsel or waived that right. The N inth Circuit determined a probation officer’s

statements in a PSR, in and of themselves, cannot be conclusive on the

constitutionality of a prior conviction. Id. In this case, the district court did not

rely solely on the PSR; it also took into account the notations in the docket sheets

provided by Sanchez that he had been advised of his rights and penalties. The

docket sheet for the 2003 theft by deception conviction shows Sanchez was

advised of his rights and penalties and he has failed to overcome the presumption

                                          -9-
of regularity attached to this conviction.

      2005 Possession of Drug Paraphernalia Conviction.

      Sanchez challenges his 2005 conviction by comparing it to the record from

his 1999 possession of a controlled substance conviction in a neighboring

jurisdiction. The 1999 record specifically states he waived his right to counsel.

From this, Sanchez believes the absence of the same notation in his 2005 record

casts doubt on his waiver of right to counsel in 2005. The fact one jurisdiction

may utilize a different docketing or record keeping system than another does not

prove by a preponderance of the evidence Sanchez did not waive his right to

counsel.

      Furthermore, prior experience with the criminal justice system is relevant

to the question of whether a defendant knowingly waived his constitutional rights.

Parke, 506 U.S. at 37; Wicks, 995 F.2d at 979. Sanchez certainly is no stranger to

the criminal justice system. He has thirty juvenile convictions for criminal or

status offenses. He concedes he waived his right to counsel in his 1999

conviction for possession of a controlled substance. He was represented by

counsel in his convictions for possession of a controlled substance and attempted

robbery, both in 2000. All of these convictions occurred prior to the four

convictions challenged here. The docket sheet for the 2005 possession of drug

paraphernalia conviction shows Sanchez was advised of his rights. He has failed

to overcome the presumption of regularity attached to this conviction.

                                         -10-
      Sanchez has not come forward by affidavit or testimony asserting he did

not waive his right to counsel. He only points to a silent record for the

proposition that there is no proof he w aived his right to counsel. Judge K unz’s

letter does not state Sanchez failed to waive his rights nor does it present any

evidence directly supporting his position. The letter merely states no signed

waiver is in the DUI case file. Sanchez has failed to overcome the presumption

of regularity and has not presented affirmative evidence to prove by a

preponderance to the contrary.

A FFIRME D.

                                        Entered by the C ourt:

                                        Terrence L. O ’Brien
                                        United States Circuit Judge




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