*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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

May 29, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 05-51506

_____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MANUEL SAENZ-MACIAS,

Defendant - Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas, El Paso

USDC No. 3:05-CR-870-ALL

_________________________________________________________________

Before JONES, Chief Judge, and JOLLY and STEWART, Circuit Judges.

PER CURIAM:*

Manuel Saenz-Macias (“Saenz”) appeals his 57-month sentence

for illegal reentry. We AFFIRM.

I.

On March 27, 2005, Saenz pleaded guilty to illegal reentry, in

violation of 8 U.S.C. § 1326. The presentence report (“PSR”)

recommended a Guidelines sentence of 57 to 71 months imprisonment,

based on a total offense level of 21 and a criminal history

category of IV. The criminal history category of IV was based on

7 criminal history points: 3 points for a 1994 assault conviction,
1 Saenz may collaterally attack his previous convictions

because he asserts a violation of his right to counsel. See Custis

v. United States, 511 U.S. 485, 493-95 (1994).

2

1 point for a 2001 DWI conviction, 1 point for a 2004 DWI

conviction, and 2 points for committing the instant offense while

on probation for the 2004 DWI conviction. For both DWI

convictions, the PSR noted that Saenz appeared pro se and received

a suspended sentence, but the evidence did not show whether Saenz

had waived his right to counsel. The district court sentenced

Saenz to 57 of months imprisonment, at the bottom of the Guidelines

range.

II.

Saenz appeals his sentence, arguing that his two DWI

convictions, which were used for the sentence enhancement, are

unconstitutional under Alabama v. Shelton, 535 U.S. 654 (2002).

Under Shelton, when a defendant is given a suspended sentence, he

has a constitutional right to counsel. Id. at 674. Contending

that he was not afforded counsel, Saenz argues that the district

court erred by including the two DWI convictions in his criminal

history score.1

Because Saenz did not object below, we review under the plain

error standard. See United States v. Villegas, 404 F.3d 355, 358

(5th Cir. 2005). “This court finds plain error when: (1) there was

an error; (2) the error was clear and obvious; and (3) the error

affected the defendant’s substantial rights.” Id. “If all three
3

conditions are met an appellate court may then exercise its

discretion to notice a forfeited error but only if (4) the error

seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Id. at 358-59. Because plain error only

exists if the error affected the defendant’s substantial rights,

“we will uphold a defendant’s sentence if on remand the district

court could reinstate the same sentence by relying on a reasonable

application of the Sentencing Guidelines.” United States v.

Wheeler, 322 F.3d 823, 828 (5th Cir. 2003). 

Here, we find no plain error in the district court’s inclusion

of Saenz’s 2004 DWI conviction and related probation violation in

his criminal history score, because if error there be, it was not

plain. Saenz pleaded guilty in January 2004, twenty months after

the Supreme Court decided Shelton in May 2002. Therefore, the

question is whether twenty months was a sufficient amount of time

to establish a presumption of regularity, that is, a presumption

that the Colorado courts were aware of Shelton and properly applied

Shelton to Saenz’s 2004 DWI proceedings by offering him courtappointed counsel, which he then would have waived. The answer is

not readily ascertainable, however, because the law is unclear as

to whether twenty months is a sufficient amount of time to

establish a presumption of regularity. Compare Burgett v. Texas,

389 U.S. 109, 114-15 (1967) (no presumption of waiver where the law

in question had not yet been established at the time of the prior

conviction), with Parke v. Raley, 506 U.S. 20, 30 (1992)
2 Iowa v. Tovar, 541 U.S. 77 (2004), is not on-point because

there the evidence clearly demonstrated that the defendant waived

his right to counsel. See id. at 82. Here, the evidence does not

show whether Saenz waived his right to counsel.

4

(presumption of regularity existed where the law in question had

been established “for nearly a quarter century”).2 Accordingly,

any error was not plain. See United States v. Palmer, 456 F.3d

484, 491 (5th Cir. 2006) (“A ‘plain’ error is one which is clear

under current law.”).

Additionally, we find no plain error in the district court’s

inclusion of Saenz’s 2001 DWI conviction in his criminal history

score, because the error did not affect his substantial rights.

Saenz pleaded guilty to his 2001 DWI conviction before the Supreme

Court decided Shelton; therefore, under Burgett, we presume Saenz

did not waive his right to counsel and the conviction was

unconstitutional. See Burgett, 389 U.S. at 114-15. Accordingly,

the district court erred by including Saenz’s 2001 DWI conviction

in his criminal history. The inclusion, however, did not

constitute plain error because it did not affect Saenz’s

substantial rights. Without the inclusion of the 2001 DWI

conviction, Saenz would have received 6 criminal history points,

yielding a criminal history category of III. A criminal history

category of III, when combined with Saenz’s total offense level of

21, would result in a Guidelines range of 46 to 57 months. Thus,

even if we were to remand, the district court could reinstate the
5

same sentence of 57 months. Accordingly, under the plain error

standard of review, we leave the district court judgment in place.

See Wheeler, 322 F.3d at 828.

III.

Saenz also argues that his sentence violates due process

because it exceeds the statutory maximum sentence for violations of

8 U.S.C. § 1326(a). As this argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), it

fails.

IV.

For the foregoing reasons, Saenz’s sentence is 

AFFIRMED.