United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 25, 2006
Charles R. Fulbruge III
Clerk
No. 05-20649
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FAUSTINO TRUJILLO-BAZA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No.4:05-CR-29-ALL
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Before Jolly, Dennis, and Clement, Circuit Judges.
PER CURIAM:*
Faustino Trujillo-Baza appeals his 30-month sentence imposed
following his guilty plea conviction to being found unlawfully
present in the United States following deportation. Trujillo-
Baza argues that the district court plainly erred in including
two criminal history points in his criminal history calculation
based on a prior 1988 Washington state felony drug conviction
because he received a 13-month sentence for that conviction.
Because Trujillo-Baza did not object in district court, our
review is for plain error. United States v. Mares, 402 F.3d 511,
*
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this opinion should not be published and is not precedent except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. 05-20649
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520 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005). We will find
plain error if “(1) there was an error; (2) the error was clear
and obvious, and (3) the error affected [the defendant’s]
substantial rights.” United States v. Gracia-Cantu, 302 F.3d
308, 310 (5th Cir. 2002). If these elements are established, we
may exercise our discretion to correct the error “only if it
‘seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.’” Id.
The Guidelines provide that a sentence of less than one year
and one month that is more than ten years old at the time of the
instant offense should not be counted in determining a criminal
history score. See U.S.S.G. § 4A1.1, comment. (n.2); U.S.S.G.
§ 4A1.2(e)(2). Thus, the district court erred in increasing
Trujillo-Baza’s criminal history points based on the Washington
conviction. However, Trujillo-Baza has failed to show that the
error affected his substantial rights because the district court
could impose the same sentence upon remand and he has not shown
that there is a reasonable probability that, but for the
miscalculation of the Guidelines, the district court would have
imposed a substantially lesser sentence. See United States v.
Jones, 444 F.3d 430, 437-38 (5th Cir.), cert. denied, 126 S. Ct.
2958 (2006).
Trujillo-Baza argues that his sentence is unreasonable
because he received one criminal history point for an uncounseled
Illinois state guilty plea conviction. If a misdemeanor
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conviction results only in a stand-alone sentence of probation,
the Sixth Amendment right to counsel does not apply. United
States v. Perez-Macias, 335 F.3d 421, 428 (5th Cir. 2003). The
record does not reflect that any sentence other than one year of
probation and $50 in costs was imposed at the time of Trujillo-
Baza’s guilty plea, and there is no indication that Trujillo-Baza
received a suspended sentence. Illinois law does provide for
sentences of probation alone. 730 ILL. COMP. STAT. ANN. 5/5-5-3
(West, Westlaw through Jan. 1, 2006). Thus, Trujillo-Baza was
not entitled to counsel during that proceeding. In any event,
once the Government proves a valid conviction the burden is on
the defendant to show, by a preponderance of the evidence, that
the conviction is constitutuionally invalid. United States v.
Osborne, 68 F.3d 94, 100 (5th Cir. 1995). Even if Trujillo-Baza
had been entitled to counsel at his Illinois guilty plea, he has
not carried his burden of showing that the conviction was
uncounseled or that he did not competently and intelligently
waive his right to the assistance of counsel. Thus, the district
court did not err in assessing a criminal history point for the
Illinois conviction.
Trujillo-Baza challenges the constitutionality of 8 U.S.C.
§ 1326(b)’s treatment of prior felony and aggravated felony
convictions as sentencing factors rather than elements of the
offense that must be found by a jury in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). The argument is foreclosed by
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Almendarez-Torres v. United States, 523 U.S. 224 (1998), in which
the Supreme Court held that treatment of prior convictions as
sentencing factors in § 1326(b)(1) and (2) was constitutional.
Although Trujillo-Baza contends that a majority of the Supreme
Court would now consider Almendarez-Torres to be incorrectly
decided in light of Apprendi, “[t]his court has repeatedly
rejected arguments like the one made by [Trujillo-Baza] and has
held that Almendarez-Torres remains binding despite Apprendi.”
United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert.
denied, 126 S. Ct. 298 (2005). Trujillo-Baza concedes as much,
but he raises the argument to preserve it for further review.
The sentence is AFFIRMED.