Case: 09-20589 Document: 00511336886 Page: 1 Date Filed: 12/30/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 30, 2010
No. 09-20589 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JOVANNY RUBIO RUBIO, also known as Jovanny Rubio, also known as
Jovanny Rubio-Rubio, also known as Vedal Gomez,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before JONES, Chief Judge, and JOLLY and GARZA, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Appellant Jovanny Rubio Rubio (“Rubio”) appeals the sentence assigned
to him for violating 18 U.S.C. §§ 1326(a) and (b)(1). Rubio argues that the
presentence report (“PSR”) considered by the district court miscalculated his
criminal history points by including two uncounseled state misdemeanor
convictions for which waiver of counsel occurred too late. Rubio does not satisfy
his burden of proof in showing that his waiver of counsel was constitutionally
invalid. We therefore AFFIRM his sentence.
Case: 09-20589 Document: 00511336886 Page: 2 Date Filed: 12/30/2010
No. 09-20589
I.
Rubio, a Mexican citizen, pled guilty to illegal re-entry after deportation
subsequent to a conviction for a felony, in violation of 18 U.S.C. §§ 1326(a) and
(b)(1). The PSR recommended a base offense level of eight, with a four-level
enhancement for a prior felony conviction, and a two-level decrease for
acceptance of responsibility. Rubio’s criminal history calculation included eleven
criminal history points, which corresponded to a criminal history category of V.
At the sentencing hearing, Rubio objected to the PSR’s calculation of his
criminal history. He contended that two of his prior misdemeanor convictions
were improperly included because he was not offered, nor had he waived, counsel
during plea negotiations for those convictions.1 He further stated that he did not
waive his right to counsel until his sentencing hearings. Without the four points
relating to his uncounseled prior misdemeanor convictions, his criminal history
would be Category IV, which would result in a lower guidelines range of
imprisonment.
At the sentencing hearing, Rubio’s counsel informed the district court that
he had not signed a waiver prior to the plea negotiations of two of his prior state
misdemeanor proceedings. Rubio stated that he was offered a plea deal by the
state prosecutor, and told that if he did not want the deal, he could expect his
case to be protracted. Rubio testified that when he was offered a sentence of 180
days in exchange for his guilty plea for failure to identify, he had not been
offered an attorney. He also testified that when he was offered a sentence of 200
days in exchange for his guilty plea for assault, he had not been offered an
attorney. Rubio testified that he could not remember whether the judge in those
cases ever asked him if he wanted counsel at all. The district court judge asked
Rubio whether he had been advised about his right to counsel at the time of his
1
Rubio was entitled to court-appointed counsel in his state proceedings because he was
indigent.
2
Case: 09-20589 Document: 00511336886 Page: 3 Date Filed: 12/30/2010
No. 09-20589
arrests for the Nacogdoches County offenses. Rubio answered affirmatively.
Rubio also testified that he did not specifically ask for counsel, although he was
told he had a right to an attorney.
The district court examined the state court documents related to Rubio’s
plea and concluded that notations on the judgments indicated that Rubio had
waived counsel. Rubio’s counsel argued that the judgments did not specify when
the waiver occurred and that the appearance of the waiver notation in the
judgment indicated that the waiver happened at the end of the case. The district
court noted that it was unclear from the court documents when the waiver
occurred. The district court overruled Rubio’s objections to the PSR and
sentenced Rubio to twenty-four months of imprisonment and three years of
supervised release. Rubio timely appealed his sentence.
II.
We review a district court’s sentencing guidelines interpretations de novo
and its findings of fact for clear error. United States v. Longstreet, 603 F.3d 273,
275-76 (5th Cir. 2010). Under a clear error standard, we will uphold a finding
if it is plausible in the light of the entire record. Id. A finding will be found
clearly erroneous if, based on the record, “we are left with the definite and firm
conviction that a mistake has been committed.” Id. at 276.
III.
Rubio collaterally attacks his misdemeanor convictions by asserting that
they were obtained in violation of his Sixth Amendment right to counsel.
Specifically, Rubio contends that the district attorney presented “take it or leave
it” plea offers before Rubio was offered the assistance of counsel. We begin by
finding that a defendant bears the burden of proof in a collateral attack on a
state conviction. Then, we assess whether Rubio satisfied this burden of proof.
3
Case: 09-20589 Document: 00511336886 Page: 4 Date Filed: 12/30/2010
No. 09-20589
A.
The Sixth Amendment right to “counsel at all critical stages” applies in all
cases where an indigent defendant faces incarceration, regardless whether the
offense was a misdemeanor or felony. See Iowa v. Tovar, 541 U.S. 77, 87 (2004).
“[T]he negotiation of a plea bargain is a critical phase of litigation for purposes
of the Sixth Amendment right to effective assistance of counsel.” Padilla v.
Kentucky, 130 S. Ct. 1473, 1486 (2010). Generally, a defendant may not
collaterally attack a prior state judgment that is used to enhance his federal
sentence. But, “the Constitution requires collateral review of a defendant’s prior
conviction used to enhance a federal sentence . . . when the defendant alleges
that the conviction was obtained in violation of [his or] her Sixth Amendment
right to counsel.” Id. (citing Custis v. United States, 511 U.S. 485, 493-97
(1994)).
The Supreme Court has held that “in a collateral attack on an uncounseled
conviction, it is the defendant’s burden to prove that he did not competently and
intelligently waive his right to the assistance of counsel.” Iowa v. Tovar, 541 US
77, 92 (2004). We have held that “state law, not federal law, allocates the
appropriate burden of proof.” Mallard v. Cain, 515 F.3d 379, 382 (5th Cir. 2008).
Texas law allows attack of a prior conviction that is alleged in a later offense for
enhancement of punishment, if it is void or if it is tainted by a constitutional
defect. Galloway v. State, 578 S.W.2d 142, 143 (Tex. Crim. App. 1978); Wilson
v. State, 44 S.W.3d 602, 605 (Tex. App. 2001). Texas law further requires that
“[t]he burden of proof in a collateral attack on a conviction is on the applicant.”
Ex parte Guzman, 589 S.W.2d 461 (Tex. Crim. App. 1979). Therefore, in this
case, Rubio bears the burden of proving that he did not waive counsel prior to
plea negotiations.2
2
Rubio advances the novel argument that because a waiver of counsel obtained in
violation of certain procedural rules is presumed to be invalid, TEX . CODE . CRIM . PRO C . art.
4
Case: 09-20589 Document: 00511336886 Page: 5 Date Filed: 12/30/2010
No. 09-20589
B.
Rubio claims that his Sixth Amendment right to counsel was violated
because he did not receive counsel during plea negotiations, which are a critical
stage of proceedings. Rubio admits that he waived his right to counsel at
sentencing but contends that this did not retroactively cure the earlier
constitutional violation.
Rubio’s claim is grounded on two bases: (1) the absence of a document
showing that he waived counsel prior to entering plea negotiations, and (2) his
testimony. Rubio notes that no regularly-kept court documents would document
specific items of evidence to support his contentions. He submitted as exhibits
documents from the early hearings that did not include a signed waiver. Rubio
did, however, acknowledge that the judgment reflected that he waived counsel,
and that it was unclear where in the trial that occurred. Texas law holds that,
absent a showing to the contrary, there is a presumption of regularity to a
judgment and proceeding once a defendant pleads guilty. Ex Parte Wilson, 716
S. W.2d 953, 956 (Tex. Crim. App. 1986). Here, the record explicitly notes that
the waiver occurred, but does not specify when. On this basis, we find the lack
of entry of the time of the waiver in the record insufficient to sustain Rubio’s
claim. Second, Rubio testified that he was not offered a lawyer prior to entering
into plea negotiations with the government. When, as in this case, the federal
constitutional right to counsel was firmly established in the state, a defendant
must do more than merely say he was not offered counsel to satisfy his burden.
1.051(f), the government bears the burden of proof. He cites no case, nor could we locate one,
indicating that a defendant’s claim of a violation of article 1.051(f) is sufficient to establish
that a violation indeed took place, thus creating a presumption of invalidity. Therefore,
considering this statute within the context of Texas law allocating the burden of proof in these
situations, we do not read article 1.051(f) as shifting the burden from the defendant to the
state on the mere allegation that a waiver was invalid. We instead understand it to mean that
if Rubio satisfied his burden of proof in showing that waiver of counsel was obtained in
violation of these procedural rules, then the misdemeanor convictions would be presumed to
be invalid.
5
Case: 09-20589 Document: 00511336886 Page: 6 Date Filed: 12/30/2010
No. 09-20589
Id. We, therefore, find that Rubio fails to satisfy the burden of proof necessary
to sustain a claim of invalid waiver of counsel.
Accordingly, Rubio’s sentence is
AFFIRMED.
6