United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 7, 2004
Charles R. Fulbruge III
Clerk
No. 03-41014
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER RIOS-LUNA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-03-CR-112-ALL
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Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Javier Rios-Luna (“Rios”) pleaded guilty to illegal reentry
after deportation and was sentenced to 24 months’ imprisonment
and one year’s supervised release. He argues that the
district court erred in considering his prior, uncounseled
misdemeanor convictions in assessing his criminal history points.
Specifically, Rios contends that he had a right to counsel in
his January and May 2000 federal misdemeanor cases under Alabama
v. Shelton, 535 U.S. 654 (2002). He acknowledges that this
court, in United States v. Perez-Macias, 335 F.3d 421, 427-28
*
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that this opinion should not be published and is not precedent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.
No. 03-41014
-2-
(5th Cir.), cert. denied, 124 S. Ct. 495 (2003), held that an
individual convicted of a federal misdemeanor who receives a
probationary sentence, not coupled with a suspended sentence,
does not have a right to counsel. Rios urges that Perez-Macias
misread Alabama v. Shelton in determining that a defendant
sentenced to “freestanding” probation has no right to counsel.
He contends that he had the right to counsel in his prior
misdemeanor cases because he was potentially subject to
imprisonment if his probation was revoked and because he actually
received a term of imprisonment upon revocation of his probation
in both cases. Rios argues that his case is distinguishable from
Perez-Macias because Perez-Macias’s probation was never actually
revoked.
Rios’s argument is unpersuasive. Nothing in Perez-Macias
“suggests that the plea and the conviction based on that guilty
plea should be retroactively vacated because the defendant
violated the terms of his probation and the court found it
necessary to revoke the probation.” United States v. Rios-Cruz,
376 F.3d 303, 305 (5th Cir. 2004), petition for cert. filed,
(Aug. 2, 2004). Rios thus had no Sixth Amendment right to
counsel in connection with his prior misdemeanor illegal reentry
guilty-plea convictions for which he received a sentence of
probation, irrespective of the fact that his probation was later
revoked. See id.; Perez-Macias, 335 F.3d at 428-29. The
district court’s judgment is AFFIRMED.