IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 18, 2008
No. 07-40115
c/w No. 07-40304 Charles R. Fulbruge III
Summary Calendar Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ANDRES LUGO-RODRIGUEZ
Defendant-Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-223-1
USDC No. 1:06-CR-842-1
Before JOLLY, DAVIS, and DeMOSS, Circuit Judges.
PER CURIAM:*
Andres Lugo-Rodriguez (Lugo) appeals the 30-month sentence imposed
following his conviction by guilty plea of being an alien unlawfully found in the
United States after deportation, having been previously convicted of an
aggravated felony. He also appeals the 18-month sentence imposed following the
*
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should not be published and is not precedent except under the limited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. 07-40115 c/w No. 07-40304
revocation of his supervised release for a 2003 attempted-illegal-reentry
conviction.
Lugo argues that the district court erred in sentencing him for the offense
of being an alien unlawfully found in the United States after deportation because
the court included two uncounseled prior convictions in his criminal history
score. When reviewing a sentence, we consider whether the district court
committed procedural error at sentencing and whether the sentence imposed is
substantively reasonable. See Gall v. United States, 128 S. Ct. 586, 594 (2007);
see also United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
The district court’s interpretation and application of the Guidelines are reviewed
de novo, and its findings of fact are reviewed for clear error. See Cisneros-
Gutierrez, 517 F.3d at 764.
“An uncounseled conviction that results in imprisonment is
unconstitutional only if the defendant did not waive his right to any attorney.”
United States v. Osborne, 68 F.3d 94, 100-01 (5th Cir. 1995). Lugo has the
burden of establishing that he did not voluntarily, knowingly, and intelligently
waive his right to counsel. See Iowa v. Tovar, 541 U.S. 77, 92 (2004); see also
Mallard v. Cain, 515 F.3d 379, 382 (5th Cir. 2008). The district court at
sentencing considered records pertaining to the prior convictions, which reflected
that Lugo knowingly, intelligently, and voluntarily waived his right to counsel
in the proceedings. Lugo has not met his burden of showing that the waivers of
counsel were invalid. See Osborne, 68 F.3d at 100-01.
Lugo also challenges the sentence imposed by the district court for the
revocation of his supervised release to the extent it was ordered to run
consecutively to the 30-month sentence imposed for being an alien unlawfully
found in the United States after deportation. This court has held that the
consecutive nature of a sentence is reviewed for unreasonableness and that a
consecutive sentence imposed within the parameters of the Sentencing
Guidelines is presumptively reasonable. United States v. Candia, 454 F.3d 468,
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No. 07-40115 c/w No. 07-40304
472-73 (5th Cir. 2006). This court has not yet determined, however, in the wake
of United States v. Booker, 543 U.S. 220 (2005), the proper standard of review to
be applied to sentences imposed upon the revocation of supervised release. See
United States v. McKinney, 520 F.3d 425, 428 (5th Cir. 2008). However, Lugo
has not shown that his revocation sentence was imposed as a result of
procedural error, is unreasonable, or is plainly unreasonable. See Gall, 128
S. Ct. at 596; McKinney, 520 F.3d at 428.
AFFIRMED.
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