* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** The Honorable John L. Kane, Senior District Judge, United States District Court for the District of Colorado, sitting by desi gnation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 20 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. GUSTAVO MOLINA-BARAJAS, also known as Gustavo Lopez-Ibarra,

Defendant - Appellant. No. 01-2195 (D.C. No. CR-00-662-BB) (D. New Mexico)

ORDER AND JUDGMENT *

Before O’BRIEN and PORFILIO , Circuit Judges, and KANE , ** Senior District Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2- I. Defendant-appellant Gustavo Molina-Barajas was indi cted in the United States District Court for the District of New Mexic o for one count of reentering the United States in violation of 8 U.S.C. §§ 1326( a)(1), (a)(2), and (b)(2). Defendant pled guilty to the charge, and the distri ct court sentenced him to fifty-seven months’ imprisonment and three years of supervised release. Defendant appeals his sentence, claiming the distri ct court erred in calculating his criminal history category under USSG § 4A1.1. We e xercise jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm d efendant’s sentence. Following the entry of defendant’s guilty plea, a United States probation officer prepared a presentence report (PSR), recomm ending that defendant be sentenced based on a criminal history category of I V and an offense level of 21. Defendant filed objections to the PSR, arguing, int er alia, that the district court could not assess one criminal history point under U SSG § 4A1.1(c) for a prior misdemeanor burglary conviction in municipal court in Los Angeles, California, because he was not represented by counsel in that c ase. In response to defendant’s objection, the probation officer prepar ed an addendum to the PSR in which she stated that defendant waived his right to counsel in the California case. As evidence of the waiver, the probation officer pr oduced a document entitled-3-

“Case Summary” from the Municipal Court of Los Ange les, case No. 91R19658. The Case Summary states as follows: Defendant is present in court, and not represented by counsel . . . Defendant advised of the following rights via videocassette: Defendant arraigned and advised of the following ri ghts at mass advisement: speedy public trial, trial within 30/45 days, right to remain silent, subpoena power of court, confront ation and cross examination, jury trial, court trial, right t o attorney, self representation, reasonable bail, citizenship, effec t of priors, pleas available probation. . . . Defendant personally waives right to counsel, appearing in propria persona. Court advises defendant that self-represe ntation is almost always an unwise choice, and will not work to his a dvantage; further, that he will not be helped or treated with special leniency by the court or the prosecutor, and that he will be held t o the same standards of conduct as an attorney. Further, if he wishes t o represent himself, he will not be able to claim later that he made a m istake, or that he received ineffective assistance of counsel. . . . [Court] determines that defendant is competent to represent himself. Defendant advised of and personally and explicitly waives the following rights: representation by counsel . . . .
See Ex. B to Appellee’s Answer Br. at 3-4 (type face m odified). At the sentencing hearing, defendant’s counsel reit erated the objection to the assessment of one criminal history point for the California conviction. See R., Vol. V at 5. However, defendant’s counsel did not offer any evidence to rebut the statement in the Case Summary that defendant had wa ived his right to counsel. Instead, counsel only informed the court that she h ad requested that the government produce a copy of a written waiver signe d by defendant, but the1 According to the addendum to the PSR, the Federal B ureau of Investigation

had linked defendant to the alias “Gustavo Adolfo Juarez” through fingerprint analysis. -4- government had not produced any such document to her. See id. The district court overruled defendant’s objection to the assess ment of one criminal history point for the California conviction, see id. at 6, and the court adopted the factual findings and guideline applications in the PSR, see id. at 9. On appeal, defendant again argues that the districtcourt erred in assessing one criminal history point for the California convi ction, and he again points to the lack of a signed waiver of his right to counsel. F or the first time, defendant also claims on appeal that: (1) he could not have knowin gly and intelligently waived his right to counsel because he only has a fifth gr ade education; he suffered a head injury prior to the waiver; and there is no in dication an interpreter was provided for him; and (2) there is a question of fa ct as to whether he committed the burglary charged in the California case. To support the latter assertion, defendant points to the fact that the name of the d efendant in the California case was “Gustavo Adolfo Juarez.” 1 See Ex. B to Appellee’s Answer Br. at 1. He also points out that, according to the Case Summary, the defendant in the California case was born on November 18, 1965, see id. , while he was born on November 19, 1966, according to the PSR.2 Defendant was sentenced to twenty days in jail and twenty-four months’

probation for the burglary charge. See Ex. B to Appellee’s Answer Br. at 1. -5- II. We review the district court’s application of the s entencing guidelines de novo and its factual findings for clear error, givi ng due deference to the court’s application of the guidelines to the facts. See United States v. Henry , 164 F.3d 1304, 1310 (10th Cir. 1999). Likewise, we review d e novo the question of whether a waiver of counsel is voluntary, knowing, and intelligent. See United States v. Taylor , 113 F.3d 1136, 1140 (10th Cir. 1997). Because defendant was imprisoned on the California conviction, 2there is no question he had a right to counsel under the Sixth Amendment. See Argersinger v. Hamlin , 407 U.S. 25, 37 (1972). There is also no questio n that defendant may collaterally attack the use of the Ca lifornia conviction to enhance his sentence in this case if the conviction was obt ained in complete violation of his right to counsel. See United States v. Garcia , 42 F.3d 573, 581 (10th Cir. 1994). On the other hand, it is equally well estab lished that defendant has a constitutional right to waive his right to counsel. See United States v. Windle , 74 F.3d 997, 1001 (10th Cir. 1996). Further, if defen dant entered into a valid waiver, the waiver precludes him from collaterally attacking the California conviction. Id.-6-

Because the Case Summary shows that defendant expre ssly waived his right to counsel in the California case, it was defendant ’s burden to prove the waiver was not knowingly and intelligently made, or is oth erwise constitutionally infirm. See United States v. Williamson , 806 F.2d 216, 220 (10th Cir. 1986); see also Windle , 74 F.3d at 1001 (holding that, “[o]nce the prosec ution establishes the existence of a [prior] conviction for use in enhanc ing the defendant’s sentence, the defendant must prove by a preponderance of the evidence that the conviction was constitutionally infirm”). As set forth above, defendant failed to put forth any evidence in the district court proceedings to s how that the Case Summary was in any way inaccurate, and he likewise offered no e vidence to establish that the waiver of counsel summarized therein was not volunt ary, knowing, and intelligent. Instead, defendant’s only objection w as that the government had not produced a signed waiver, and that objection was irrelevant given defendant’s failure to offer any substantive evidence to contra dict the Case Summary. Accordingly, we agree with the district court that the California conviction is constitutionally valid for enhancement purposes. See Windle , 74 F.3d at 1001 (holding that a record indicating counsel was waive d in the predicate misdemeanor case is sufficient, in the absence of c ontrary allegations, to make the conviction constitutionally valid for enhancement p urposes).-7-

Finally, for the first time on appeal, defendant ha s put forth several vague and conclusory reasons as to why the waiver of coun sel in the California case was invalid. However, each of the reasons put forth bydefendant involve factual issues that must be raised in the district court inthe first instance or they are waived. See United States v. Saucedo , 950 F.2d 1508, 1518 (10th Cir. 1991), overruled on other grounds , Stinson v. United States , 508 U.S. 36 (1993). Moreover, “[a] factual dispute concerning the appli cability of a particular guideline, not brought to the attention of the district court, does not rise to the level of plain error.” Id. This same waiver rule also applies to defendant’s claim that there is a question of fact as to whether he c ommitted the burglary charged in the California case, and we are prohibited from con sidering that claim for the first time on appeal. See United States v. Jones , 80 F.3d 436, 438 (10th Cir. 1996) (holding that a defendant’s claim of innocence withrespect to a prior conviction that was asserted for the first time on appeal “inv olve[d] a factual dispute concerning the applicability of a particular guidel ine, which . . . does not rise to the level of plain error”). The sentence imposed by the district court is AFFIRMED.

Entered for the Court

John L. Kane Senior District Judge