IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-50866

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

June 27, 2012

Lyle W. Cayce

Clerk

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: 1 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. DelgadoMartinez, 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 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).

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