FI LED U. S . COURT OF AP PE ALS E L E V E N T H C IR C U IT Se pt e m be r 16, 2005 T HOM AS K. KAHN CL E RK 

### [ DO NO T P UB L I S H]
I N THE UN I TE D STATE S C OU RT OF APPE ALS F O R T H E E L E V E N T H C IR C U IT

________________________ N o. 05- 10602 N on -A rgum ent C al endar

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. D ocket N o. 04 -000 41 -C R -01-W C O -2 U N I T E D S T A T E S O F A M E R I C A ,
P la in tif f

- A p p e lle e ,
v ersu s A R T U R O A L V A R A D O
- R O B L E S , D e f e n d a n t- A p p e lla n t.

________________________ A pp ea l fr om t he U ni t ed S t at es D i st ri ct C ou rt f o r th e N o r th e r n D is tr ic t o f G e o r g ia

_________________________ ( S e pt e m be r 16, 2005) B efo re H U L L , W IL S O N an d K R A V IT C H , C i rcu i t Ju d g es. P E R C U R I A M: D e f e n d a n t- a p p e lla n t Arturo Alva rado- Robles (“Robles”) was indicted f or illeg al re

entry afte r depor

tation, in violation of 8 U.S.C . § 1326. Robles had bee n deporte d in 1998 after2

his state c onvic tio n f

or fo rg e ry . H e re e nte re d th e Un ite d St ate s in 19 99 , a nd su bs e qu e ntl y

wa s convicted twic e on drugrelated cha rg es. Robles waive d his right to an a ttorney and admitted that he ha d r e -e nte re d th e Un ite d St ate s w ith out pe rm iss ion a ft e r d e po rt atio n. He ple a de d guil ty without a plea a g ree ment. The probation officer

calc ulated the guidelines rang e usinga base offe nse leve l of 8 under U .S.S.G. § 2L 1.2. That leve l was enha nced by 8 beca use Robles’ prior c onviction for fo rg e ry c ounte d a s an a g g ra

vate d f e lony un de r U .S. S.G . § 2L 1. 2( b) (1 )( C) and 8 U .S. C. § 1101(a) (43)( R). Wit h a 3-le vel re duction for a cce ptance of re sponsibili ty , Robles’s total offe nse leve l was 13. The pr obation office r then de termined Robles’s c riminal history cate g ory to be IV base d on the forg ery conviction and the pr ior drugoffe nses, althoug h the probation office r noted that Robles wa s not repre sented by counsel at the forg ery

proce eding s. Robles objected to the use of this conviction to enhanc e his sentenc e by 8 levels as we ll as in additional criminal history

points because he wa s not repre sented by counsel duringthe state c ourt pr oc e e din gand

he ha d n ot k

no wi ng ly wa ive d h is r ig ht t o c ouns e l. T he pr ob atio n o ff ic e r i nit ia lly ag ree d with Robles’s positi on, but later obtaine d a copy of the plea

colloquy from the f

org ery conviction and de termined that Robles had know ingly waived his right to counsel. The pr ob atio n o ff

ic e r f ur the r n ote d th at Ro ble s h a d c omp le te d p a pe rw or k in c onne c tio n w ithhis forg ery conviction in which he indica ted that he ha d had enough time to talk with his attorney . At sentenc ing, the court c onsidered whether the prior f

org ery conviction could be use d as an enha nceme nt. Reviewingthe plea c olloquy from state c ourt, the district court f ound that Robles, with the assistance of an interpr eter , had bee n informed of his rights a

nd indicated that h e w i s h e d

t o w a i v e h i s r i g h t s an d

p l e a d g u i l ty . T h e d i s tr i c tc o urto v e r r u l e d th e o b j e c t i o n . It imposed a sentenc e of 20 months imprisonment beca use this term of imprisonment wasGene rally , on direc t appea l, the gover nment would bear

the burde n of provingan ef fec tive 1 waiver . Gre ene, 880 F .2d at 1303 n
. 6
. I n contrast, in a collatera l attack on a conviction and sentenc e, the bur den is on the movant. I d. Although this is a dire ct appe al from a crimi nal conviction and sentenc e, Robles is collater ally attacking his state court c onviction, and, there fore , he bea rs the burde n of provingthe waive r wa s invalid. See J ackson, 57 F .3d at 1019. 3 re a so na ble un de r Unit e d St ate s v . B oo ke r, 54 3 U .S. –, 12 5 S. Ct. 73 8, 16 0 L .E d. 2d 62 1. Th is appea l followed. In revie wingthe sentenc ing guidelines, we r eview the district court’s fa ctual finding s for clea r er ror a nd its application of the guidelines to those fac ts de novo. United States v. Cooper, 203 F.3d 1279, 1286 ( 11th Cir. 2000). Whether a de fenda nt knowingly

and voluntarily

waived his right to counse l is a mix ed question of law and fa ct that we a lso review de novo. Gre ene v. United States, 880 F.2d 1299, 1303 ( 11th Cir. 1989). Sentencingcourts do not have the authority to examine the constituti onality of a pr ior state c ourt

c onvic tio n e xce pt i n n arr owc ir c ums tanc e s su c h a s w he n th e c onvic tio n is “pre sumptively

void” bec ause it wa s obtained without counsel. United States v. Roman, 989 F.2d 1117, 1118, 1120 ( 11th Cir. 1993); Gree ne, 880 F .2d at 1303. Convictions obtained with a knowingand voluntary

waiver of the right to counsel, howeve r, ar e not pre sumptively void. United States v. J ackson, 57 F .3d 1012, 1019 (11th Cir. 1995). The de fenda nt bear s the burden of showingthat a convic tion is presumptively void, and must put forth specific fac ts in support of his claim. I d.; Roman, 989 F.2d at 1118; see also United States v. Cooper, 203 F .3d 1279,

1 1287 (11th Cir. 2000). For a wa iver to be know ing a nd intelligent, the c ourt must inform the de fe nd ant “ of

the natur e of

the c ha rg e s a g a ins t hi m, o f h is r ig ht t o b e c ouns e le d r e g ard inghis plea, a nd of the ra

ng e of a llowable punishments attendant upon the e ntry of a guilty

plea.” I owa v. Tovar, 541 U .S. 77, 81, 124 S.C t, 1379, 1384, 158 L .Ed.2d 209 (2004). The re is no rig id setRobles does not contend that the w aiver was involuntary . Rather, he asser ts that it was not 2 m a d e kn o w i n g l y an d

i n t e l l i g e n t l y. 4 of questions that must be addre ssed bef ore a waiver is valid; the level of inquiry depends on the circ umstances, includingthe def endant’ s education, backg round, and the nature of the c harg es ag ainst him. I d. at 88. Her e, Robles asser

ts that his prior conviction is presumptively void beca

use he did not kn ow ing ly

wa ive his ri g ht t o c ouns e l. In s up po rt of thi s c la im, he argue s th at he wa s young , d id 2 not speak Eng lish, and there w as no evide nce that the interpre ter a ssisted him properly or that the
c ourt inf or me d h im that he ha d th e ri g ht t o a n atto rn e y duri ngple a

ne g oti atio ns . Upon re view of the rec ord, we conclude that the district court prope rly deter mined that Rob le s h a d n ot m e t hi s b ur de n o f s ho wi nga fa c tua l pr e dic ate that th e wa ive r w a s inva lid . F ir st, althoug h Robles did not speak Eng lish, he was g iven an inter prete r and he offe rs no evidenc e th atth e i n t er

p re t er wa s i n s u ff

i ci en t . S ec o n d , th e r ec o rdre fl ec t s th atth e s t at e c o urtj u d ge informed Robles of his rig hts, the possible penalties, and what he would be wa iving if he enter ed
a p l e a . R o b l e s r e p e at e d l y s t at e d th ath e w a s g u i l ty an d

w i s h e d t o e n t e r a p l e a . A d d i t i o n a l l y, Robles completed the pe tition t o enter a plea , which also infor

med him of his rig hts. Third, Robles did not testi fy

or submit an aff

idavit to support his claim that his waiver wa s not valid. Thus, Robles did not meet his burden, and the district c ourt proper ly deter mined that the prior conviction could be use d to enhanc e Robles’s sente nce. Gre ene doe s not dictate a c ontrary result. In Gre ene, the rec ord wa s devoid of any indication that the waive r wa s made knowing ly and intellige ntly . Her e, the r ecor d demonstrates that Robles was informe d of his rig hts and had the a ssistance of a n interpre ter. The re is nothing in the rec ord to show that the interpr eter was not compe tent or that Robles’s wa iver wa s not5

made knowing ly

and intellige ntly . There fore , beca use Robles has not met his burden, we AFF I RM.