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

                                                                FILED
                                                                June 10, 2008
                               No. 07-50976
                             Summary Calendar              Charles R. Fulbruge III
                                                                   Clerk

UNITED STATES OF AMERICA

                                          Plaintiff-Appellee

v.

BENJAMIN RUBALCABA-VAZQUEZ

                                          Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                         USDC No. 3:07-CR-523-ALL


Before STEWART, OWEN and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Benjamin Rubalcaba-Vazquez was convicted of one count of attempted
illegal reentry into the United States and sentenced to serve 76 months in
prison. Rubalcaba-Vazquez appeals his sentence. He argues that the district
court erred by including three of his prior convictions in his criminal history
score. He contends that these convictions should not have been scored because
he was not represented by counsel in connection with these convictions. He thus



      *
      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should not be published and is not precedent except under the limited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.
                                  No. 07-50976

contends that the district court used the wrong guidelines sentencing range
when sentencing him and that his range should have been significantly lower.
      When reviewing a sentence, we typically consider whether the district
court committed procedural error at sentencing and whether the sentence
imposed is substantively reasonable. See Gall v. United States, 128 S. Ct. 586,
594 (2007); see also United States v. Cisneros-Guiterrez, 517 F.3d 751, 764 (5th
Cir. 2008). The district court’s interpretation and application of the Guidelines
are reviewed de novo, and its findings of fact are reviewed for clear error. See
Cisneros-Guiterrez, 517 F.3d at 764.
      Rubalcaba-Vazquez’s sentencing claim, however, is reviewed for plain
error only because it was not presented to the district court. See United States
v. Hernandez-Martinez, 485 F.3d 270, 272 (5th Cir. 2007). Under the plain error
standard of review, “reversal is not required unless there is (1) an error; (2) that
is clear or plain; (3) that affects the defendant’s substantial rights; and (4) that
seriously affects the fairness, integrity or public reputation of judicial
proceedings.” United States v. Vasquez, 216 F.3d 456, 459 (5th Cir. 2000).
      Rubalcaba-Vazquez’s claim is unavailing.         The record does confirm
Rubalcaba-Vazquez’s assertion that the disputed convictions were uncounseled.
However, the record does not show whether these convictions were uncounseled
because Rubalcaba-Vazquez validly waived his right to counsel or because he
was uninformed of his right to counsel. Consequently, Rubalcaba-Vazquez has
not carried his burden of showing that the disputed convictions were
constitutionally infirm, nor has he shown plain error in connection with his
sentence. See United States v. Osborne, 68 F.3d 94, 100-01 (5th Cir. 1995). The
judgment of the district court is AFFIRMED.




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