United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 14, 2005
Charles R. Fulbruge III
Clerk
No. 04-50057
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO PEREZ-GOMEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-03-CR-365-1-AML
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Francisco Perez-Gomez appeals from his guilty-plea
conviction for improper entry by alien, subsequent offense, in
violation of 8 U.S.C. § 1325(a)(1).
Perez-Gomez argues that the district court abused its
discretion when it denied his request for a continuance of his
sentencing hearing because he was unable to gather the materials
necessary to file objections to two prior uncounseled misdemeanor
convictions that were used to calculate his criminal history score.
*
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opinion should not be published and is not precedent except under the limited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.
Perez-Gomez’s argument that more time was needed is not
supported by the record, because the record indicates that at the
sentencing hearing Perez-Gomez had the necessary information to
challenge at least one of the convictions at issue, yet he did not
submit this information into evidence. The record also indicates
that the uncounseled misdemeanor convictions arose out of the same
division and district as the instant conviction, and neither the
record nor Perez-Gomez’s arguments explain why more time was needed
to secure the relevant documentation before his sentencing hearing,
nor do his arguments explain why he only offers conjecture to this
court more than one year after the sentencing hearing.
Finally, Perez-Gomez does not argue that in connection
with his two prior uncounseled pleas he did not fully understand
the charge or the range of potential imprisonment, he does not
articulate the additional information that counsel could have
provided, nor does he argue that he was unaware of his right to be
counseled prior to and at his arraignment. See Iowa v. Tovar, 541
U.S. 77, 92-93 (2004). Perez-Gomez concedes that he was informed
of his right to an attorney, that he was told that he could hire an
attorney or have a court-appointed attorney if he could not afford
to hire counsel, and that he was told that he had the right to give
up his right to an attorney and plead guilty immediately. His
argument thus does not indicate that he did not competently and
intelligently waive his right to the assistance of counsel in
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connection with the uncounseled misdemeanor convictions that are at
issue. Id. at 91-92.
Based on the foregoing, Perez-Gomez has failed to
establish that the district court’s denial of his motion for a
continuance resulted in specific and compelling, or serious,
prejudice. He has therefore failed to establish that the denial
was an abuse of the district court’s discretion. See United States
v. Barnett, 197 F.3d 138, 144 (5th Cir. 1999).
The district court’s judgment is AFFIRMED.
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