### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-50866 Summary Calendar
UNITED STATES OF AMERICA, Plaintiff-Appellee

v. ESTABAN ALFREDO LOZANO-GALVAN, also known as Esteban Alfre d o 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: * E staban Alfredo Lozano-Galvan appeals his sentence following hi s 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 procee di n g p r o se before he waived the right to c o u n s e l

. He further contends that the 16-level U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D June 27 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR
. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR
. R. 47.5 .4. Case: 11-50866 Document: 00511901791 Page: 1 Date Filed: 06/27/2012No. 11-50866

adjustment imposed pursuant to U.S.S

. G

. § 2 L1.2(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. DelgadoMartinez , 564 F.3d 750, 752-53 (5th Cir. 2009) (internal quotation marks and citation omitted). If t h ere 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 d e 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 Uni t e d S t a t es 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 c o unsel if he could not afford to retain

c o unsel, and that he knowingly and understandingly waived the right to c o u n s el

. Lo z ano - G alvan’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 LozanoGalvan’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).

2 Case: 11-50866 Document: 00511901791 Page: 2 Date Filed: 06/27/2012No. 11-50866

Lozano-Galvan concedes that his chall e n ge to th e 1 6

- l evel cri m e 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.

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