United States Court of Appeals
Fifth Circuit
F I L E D
In the February 11, 2004
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 03-11190
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
NORMA SERNA,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 4:02-CR-29-ALL-BE
_________________________
Before JONES, MAGILL,* AND SMITH, PER CURIAM:**
Circuit Judges.
**
Pursuant to 5TH CIR. R. 47.5, the court has
*
Circuit Judge of the United States Court of determined that this opinion should not be pub-
Appeals for the Eighth Circuit, sitting by desig- lished and is not precedent except under the limited
nation. circumstances set forth in 5TH CIR. R. 47.5.4.
Norma Serna was arrested, then arraigned cannot be raised on direct appeal from a
the next day before a federal magistrate judge. revocation hearing, but must be collaterally
She was charged with knowingly and willfully attacked in a 28 U.S.C. § 2255 proceeding.
aiding and abetting the illegal entry of Mexican Although this circuit has yet to reach this
aliens by attempting to transport them. issue,1 we do not address it here, because,
even assuming, arguendo, that a direct appeal
Serna pleaded guilty without assistance of is a proper vehicle for Serna’s challenge, the
counsel. The court explained the nature of the record shows that the waiver of her Sixth
charges against her and the consequences of Amendment right to counsel was valid, so her
conviction. Without explicating the Sixth case fails on the merits.
Amendment right at length, the court asked
Serna whether she wished to proceed without We conclude, after a review of the record,
counsel, pursuant to a waiver of right to that Serna knowingly and intelligently waived
counsel that she previously had signed. She counsel at the time she pleaded guilty. The
responded in the affirmative, and the court was court informed her of the nature of the charges
satisfied that her waiver was knowing and in- against her and the consequences of a guilty
telligent. She pleaded guilty and was plea. She signed a consent, acknowledging
sentenced to twelve months’ probation. that she agreed to waiver her right to the as-
sistance of counsel. We are especially mindful
Serna violated the terms of her probation. that she failed to allege that she did not in fact
After a parole revocation hearing at which she understand her right to appointed counsel.
contended that she had been deprived of her Serna therefore validly waived her Sixth
Sixth Amendment rights at the time of her Amendment rights. See Argersinger, 407 U.S.
plea, the district court revoked her probation at 37.
and sentenced her to four months’
imprisonment. AFFIRMED.
Serna appeals the revocation of parole, ar-
guing that her attempted waiver of counsel
was not “knowing and intelligent,” and ac-
cordingly that her Sixth Amendment rights
were violated. Imprisonment may not be im-
posed on a defendant who has not knowingly
and voluntarily waived his right to counsel.
See Alabama v. Shelton, 535 U.S. 654, 662
(2002); Argersinger v. Hamilton, 407 U.S. 25,
37 (1972). We review constitutional
challenges de novo. See United States v.
Joseph, 333 F.3d 587, 589 (5th Cir.), cert.
denied, 124 S. Ct. 446 (2003).
1
In United States v. Francischine, 512 F.2d
The government contends that Serna’s 827 (5th Cir. 1975), we prohibited the challenge of
present challenge to the validity of her waiver underlying convictions at a parole revocation
hearing. Serna challenges only her imprisonment.
2