IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-10079
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDIBERTO AYALA-FERNANDEZ,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
(3:96-CR-210)
October 24, 1997
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
Ediberto Ayala-Fernandez appeals from his guilty plea
conviction for illegally reentering the United States after
deportation in violation of 8 U.S.C. § 1326(a) & (b). We affirm.
Ayala-Fernandez’s first argument on appeal is that the
district court failed to inquire into the relinquishment of his
right of counsel at sentencing or to warn him of the disadvantages
of self-representation. Accordingly, he contends his waiver was
*
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this opinion should not be published and is not precedent except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.
not knowingly and intelligently made. In this circuit, we do not
require a formal colloquy between defendant and trial judge when
the defendant waives counsel; rather, district courts must look to
the circumstances of the case and the background of the defendant
to determine whether the right to counsel was knowingly and
voluntarily waived. See Wiggins v. Procunier, 753 F.2d 1318, 1320
(5th Cir. 1985). We have reviewed the record and the parties’
briefs, and we are convinced that his decision to waive his right
to counsel was knowingly and voluntarily made. See Neal v. Texas,
870 F.2d 312, 314-15 (5th Cir. 1989). Ayala-Fernandez was thirty-
four years old, he had twelve years of education, he had the
assistance of an interpreter at sentencing, and he was represented
by counsel up through the sentencing. His decision to waive
counsel was a tactical move to enable him to make certain arguments
to the trial court that his counsel found meritless. We find that
he knew what he was doing.
Ayala-Fernandez also argues that the district court erred in
sentencing him above the two-year statutory term of imprisonment
for “simple” illegal reentry as provided for in 8 U.S.C. § 1326(a),
because § 1326(b) is a separate offense and, thus, his prior felony
conviction is an element which must be alleged in the indictment.
We have previously held, however, that a prior felony conviction is
not an element of the offense which had to be alleged in the
indictment. See United States v. Vasquez-Olvera, 999 F.2d 943,
944-47 (5th Cir. 1993).
2
AFFIRMED.
3