F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 25 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 04-4090
v. (D.C. No. 2:02-CR-768-02-TC)
JESUS DUARTE-GUTIERREZ, (D. Utah)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.
Defendant Jesus Duarte-Gutierrez pleaded guilty to attempted distribution
and aiding and abetting in the attempted distribution of 50 grams or more of
actual methamphetamine. See 21 U.S.C. § 841(a)(1) (distribution); 18 U.S.C. § 2
(aiding and abetting) The presentence report (PSR), citing two prior state-court
convictions, awarded Defendant two criminal history points and concluded he
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
belonged in criminal history category II. Defendant’s total offense level and
criminal-history category II yielded a 120-to-151-month sentencing range.
In written objections and at the sentencing hearing, Defendant objected to
the use of a driving-under-the-influence (DUI) conviction in Tooele County
Justice Court, Utah, in assessing his criminal history category. He conceded that
the prosecution established the fact of conviction, but contended that the
conviction is constitutionally infirm because he did not knowingly and voluntarily
waive his right to counsel.
The prosecution produced a single-page document from the Justice Court
proceedings, signed by Defendant and the presiding judge, that includes the
following statement:
Prior to acceptance of the guilty plea, the court made the
following findings:
X If the defendant is not represented by counsel, he has
knowingly waived his right to counsel and does not desire
counsel.
R. Vol. I, Doc. 102, Exhibit B. Defendant, who does not speak English, admitted
both that a translator was present at the hearing and that his signature appears on
the document, although he did not recollect signing it. He testified, however, that
there was no public defender present; that he had not slept the night before his
hearing; that the judge did not advise him of the maximum sentence for the
offense or the perils of proceeding without an attorney; and that the judge had
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informed him that if he pleaded guilty, he would not need an attorney and would
be released that afternoon.
The district court, after reviewing the document and hearing this testimony,
concluded that Defendant had not overcome the presumption of regularity that
attaches to final judgments and that the waiver of counsel was knowing and
voluntary. The court explained:
There is no question but that he was convicted. There is a
presumption of validity that goes with that conviction. Looking at
the limited focus of this collateral attack, [the Justice Court
document], which is filled out by the judge and signed by
[Defendant] with the aid of an interpreter, shows that he knowingly
and voluntarily waived his right to counsel, and shows that the court
questioned him on it. That is sufficient.
R. Vol. II at 27. The court rested its ruling on its finding that Defendant’s
testimony was not credible:
The reason I found that [Defendant] was not denied counsel is that
his testimony did not overcome the presumption [of regularity]. I
find that his testimony simply was not believable in light of the
written record, the findings by the judge, and the fact that he signed
his name and had an interpreter. So I did not find his testimony
credible.
Id. at 30. Defendant was sentenced to the guidelines minimum of 121 months and
60 months of supervised release.
Defendant appeals, arguing that the DUI conviction is constitutionally
infirm because he did not knowingly and voluntarily waive his right to counsel
and the district court’s contrary finding is clear error. “We review the district
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court’s interpretation and application of the Sentencing Guidelines de novo and
its factual findings for clear error.” United States v. Cruz-Alcala, 338 F.3d 1194,
1196 (10th Cir. 2003) (internal quotation marks omitted). We also apply de novo
review when determining the constitutionality of state court convictions used in
sentencing proceedings. United States v. Wicks, 995 F.2d 964, 975 (10th Cir.
1993). Finally, “[w]e defer to the district court’s credibility determinations.”
Cruz-Alcala, 338 F.3d at 1198.
Like the Cruz-Alcala defendant, Defendant does not dispute that the
government established the existence of the disputed conviction.
Once the prosecution establishes the existence of a conviction, the
defendant must prove by a preponderance of the evidence that the
conviction was constitutionally infirm. Moreover, there is a
presumption of regularity that attaches to final judgments, even when
the question is waiver of constitutional rights. To overcome this
presumption, a defendant may not simply point to a silent or
ambiguous record, but must come forward with affirmative evidence
establishing that the prior convictions were obtained in violation of
the Constitution.
Cruz-Alcala, 338 F.3d at 1197 (internal citations, quotation marks, and emphasis
omitted). The presumption applies even where there are no records of the court
proceedings underlying the conviction. Parke v. Raley, 506 U.S. 20, 30-31
(1992).
Defendant marches through the various requirements for establishing a
knowing and voluntary waiver of the right to counsel, see generally United States
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v. Padilla, 819 F.2d 952, 956-57 (10th Cir. 1987), and argues that the
prosecution’s proffered document does not meet the requirements. This
argument, however, misses the point of the presumption. Once the existence of a
conviction is established, the presumption of regularity attaches and we assume
that the convicting court complied with the law in all respects, including the
requirements for establishing a waiver of the right to counsel. The government is
not required to offer any evidence of compliance; Defendant must prove
noncompliance. Defendant provides no authority to support his contention that
this presumption vanishes for a court if the qualifications for judges of the court
is too low.
The only evidence of noncompliance was Defendant’s own testimony, and
the district court concluded that he was not credible. Thus, the presumption of
regularity was not overcome. Here, the district court properly counted the DUI
conviction when calculating Defendant’s criminal-history score.
The judgment of the district court is AFFIRMED.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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