[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 25, 2012
No. 11-10428 JOHN LEY
________________________ CLERK
D. C. Docket No. 1:10-cr-00402-WSD-LTW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE LUIS ACUNA-REYNA,
a.k.a. Rudy Solano-Palacios,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 25, 2012)
Before CARNES, PRYOR and RIPPLE,* Circuit Judges.
*
Honorable Kenneth F. Ripple, United States Circuit Judge for the Seventh Circuit, sitting
by designation.
PRYOR, Circuit Judge:
This appeal presents the issue whether a sentencing court may assess a
criminal history point for an uncounseled misdemeanor conviction where the
defendant was sentenced to probation and a monetary fine. Jorge Acuna-Reyna
appeals his sentence of imprisonment of 27 months for illegal reentry after
deportation, 8 U.S.C. § 1326(a), (b)(1), and argues that the district court should not
have assessed a criminal history point for his previous misdemeanor conviction for
driving under the influence because he was not represented by counsel when he
was convicted of that offense. The government argues that the right to counsel did
not attach during Acuna-Reyna’s prosecution for that misdemeanor offense
because he was sentenced to probation and a monetary fine, but not imprisonment.
In the alternative, the government contends that, even if the imposition of a
sentence of probation violated Acuna-Reyna’s right to counsel, under the Sixth
Amendment, the sentencing judge was entitled to assess the criminal history point
for the monetary fine because that portion of the sentence remained valid. We
agree with the alternative argument of the government and need not address
whether Acuna-Reyna’s sentence of probation violated the Sixth Amendment. We
affirm Acuna-Reyna’s sentence for illegal reentry after deportation.
I. BACKGROUND
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Jorge Acuna-Reyna is a citizen of Peru who entered the United States
illegally in 1998. Between 2001 and 2010, various Georgia courts convicted
Acuna-Reyna of multiple criminal offenses, including felony cocaine possession,
driving under the influence of alcohol, driving without a valid license, driving with
a suspended license, and eluding examination by federal immigration officers.
One of these convictions occurred in 2002, when Acuna-Reyna pleaded guilty to
driving under the influence of alcohol, a misdemeanor offense, and received a
sentence of 12 months of probation and a fine of $940.00. There is no evidence
that Acuna-Reyna was represented by counsel or that he waived his right to
counsel in connection with that conviction.
In 2008, an immigration judge ordered Acuna-Reyna removed from the
United States. The government deported Acuna-Reyna to Mexico, but Acuna-
Reyna reentered the United States in violation of the judge’s removal order without
permission.
In 2010, Immigration and Customs Enforcement agents located
Acuna-Reyna in Georgia after local law enforcement officers had arrested him for
driving without a valid license and driving under the influence. A federal grand
jury indicted Acuna-Reyna on one count of being found in the United States
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illegally after having been previously deported, 8 U.S.C. § 1326(a), (b)(1).
Acuna-Reyna pleaded guilty to this charge.
The presentencing investigation report calculated Acuna-Reyna’s sentence
in accordance with sections 4A1.1 and 4A1.2 of the Sentencing Guidelines. See
U.S.S.G. §§ 4A1.1(c), 4A1.2. The report listed Acuna-Reyna’s total offense level
as 10, his total number of criminal history points as 10, his criminal history
category as V, and his advisory guideline range as 21 to 27 months of
imprisonment. That calculation of Acuna-Reyna’s total criminal history points
included the assessment of one point attributable to the uncounseled misdemeanor
conviction he received in 2002. The assessment of that point had the effect of
increasing his criminal history category from IV to V and increasing his advisory
guideline range from 15 to 21 months of imprisonment to 21 to 27 months of
imprisonment.
Acuna-Reyna objected to the assessment of the criminal history point
attributable to his misdemeanor conviction in 2002 on the ground that it was
uncounseled. At his sentencing hearing, Acuna-Reyna argued that his
misdemeanor conviction was presumptively void because he was not offered
assistance of counsel and the probation sentence he received for that conviction
could have resulted in an actual deprivation of liberty. The government did not
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dispute that the misdemeanor conviction was uncounseled, but argued that the right
to counsel does not attach where a defendant receives a stand-alone sentence of
probation for a misdemeanor conviction. The district court assessed a criminal
history point for Acuna-Reyna’s uncounseled misdemeanor conviction, see
U.S.S.G. § 4A1.2, because no prison sentence had been imposed in connection
with the conviction. The court sentenced Acuna-Reyna to 27 months of
imprisonment.
II. STANDARD OF REVIEW
We review the issues presented in this appeal de novo. “We review de novo
the district court’s interpretation and application of the United States Sentencing
Guidelines.” United States v. Barakat, 130 F.3d 1448, 1452 (11th Cir. 1997). “We
may affirm the decision of the district court on any ground that finds support in the
record.” United States v. Campa, 529 F.3d 980, 998 (11th Cir. 2008). “We review
questions of constitutional law de novo.” United States v. Paige, 604 F.3d 1268,
1275 (11th Cir. 2010).
III. DISCUSSION
Acuna-Reyna argues that his uncounseled misdemeanor conviction for
driving under the influence is void and cannot be counted in calculating his
criminal history score under the Sentencing Guidelines. Acuna-Reyna relies on
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Alabama v. Shelton, 535 U.S. 654, 662, 122 S. Ct. 1764, 1770 (2002), to support
his argument that the mere threat of incarceration in a future proceeding to revoke
his probation entitled him to counsel. The government responds that the right to
counsel under the Sixth Amendment did not apply to Acuna-Reyna’s misdemeanor
conviction because Acuna-Reyna did not receive a sentence of imprisonment,
suspended or otherwise, but instead received a sentence of probation only. See
United States v. Pollard, 389 F.3d 101, 105–06 (4th Cir. 2004) (holding that the
right to counsel does not attach where misdemeanor conviction results in a
sentence of probation only); United States v. Perez-Macias, 335 F.3d 421, 427–28
(5th Cir. 2003) (same). In the alternative, the government contends that we need
not decide this constitutional issue because the district court was permitted to
assess one criminal history point for Acuna-Reyna’s misdemeanor conviction
regardless of whether Acuna-Reyna was entitled to have counsel represent him in
connection with that conviction. We agree with the alternative argument of the
government that, regardless of whether the stand-alone probation sentence was
imposed in violation of the Sixth Amendment, the district court did not err when it
assessed one criminal history point for Acuna-Reyna’s misdemeanor conviction.
The Supreme Court has recognized that “cases involving Sixth Amendment
deprivations are subject to the general rule that remedies should be tailored to the
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injury suffered from the constitutional violation and should not unnecessarily
infringe on competing interests,” such as “the necessity for preserving society’s
interest in the administration of criminal justice.” United States v. Morrison, 449
U.S. 361, 364–65, 101 S. Ct. 665, 667–68 (1980). In the light of that rule, four of
our sister circuits have held that, when a sentence is imposed in violation of a
defendant’s Sixth Amendment right to counsel, “the proper remedy [is] to vacate
that portion of the sentence offensive to the Sixth Amendment without doing harm
to the defendant’s conviction or the remaining, constitutionally inoffensive,
portions of his sentence.” United States v. Jackson, 493 F.3d 1179, 1183 (10th Cir.
2007); see also United States v. Ortega, 94 F.3d 764, 769 (2d Cir. 1996) (“The
appropriate remedy for a [Sixth Amendment] violation . . . is vacatur of the invalid
portion of the sentence, and not reversal of the conviction itself.”); United States v.
Moskovits, 86 F.3d 1303, 1309 (3d Cir. 1996) (vacating prison sentence but
affirming uncounseled conviction); United States v. White, 529 F.2d 1390, 1394
(vacating suspended prison sentence but affirming uncounseled conviction and $50
fine). We agree with that approach.
Shelton is instructive. Shelton involved “the Sixth Amendment right of an
indigent defendant charged with a misdemeanor punishable by imprisonment, fine,
or both, to the assistance of court-appointed counsel.” Shelton, 535 U.S. at 657,
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122 S. Ct. at 1767. The trial court “at no time offered [the defendant] assistance of
counsel at state expense,” and after representing himself, the defendant was
convicted of third-degree assault and sentenced to thirty days in jail, “which the
trial court immediately suspended, placing [the defendant] on probation for two
years.” Id. at 658, 122 S. Ct. at 1767–68. The Supreme Court held that “a
suspended sentence that may end up in the actual deprivation of a person’s liberty
may not be imposed unless the defendant was accorded the guiding hand of
counsel in the prosecution for the crime charged.” Id., 122 S. Ct. at 1767 (internal
quotation marks and citation omitted). The Supreme Court affirmed in entirety the
decision of the Alabama Supreme Court to “affirm[] Shelton’s conviction and the
monetary portion of his punishment, but invalidate[] that aspect of his sentence
imposing 30 days of suspended jail time.” Id. at 659–60, 122 S. Ct. at 1768.
Even if we assume that, under Shelton, the Sixth Amendment barred the
imposition of a stand-alone sentence of probation in connection with Acuna-
Reyna’s uncounseled misdemeanor conviction, the remedy for that violation would
be a vacatur of that portion of the sentence only. Acuna-Reyna’s conviction for
driving under the influence and the monetary fine that the court imposed for that
conviction would remain valid, see Scott v. Illinois, 440 U.S. 367, 373, 99 S. Ct.
1158, 1162 (1979), and “an uncounseled conviction valid under Scott may be
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relied upon to enhance the sentence for a subsequent offense,” Nichols v. United
States, 511 U.S. 738, 746–47, 114 S. Ct. 1921, 1927 (1994). So even if Shelton
barred the district court from considering the stand-alone sentence of probation to
calculate Acuna-Reyna’s criminal history score, the district court was entitled to
consider the conviction itself and corresponding monetary fine to be valid.
We join two of our sister circuits that have affirmed the assessment of
criminal history points for a constitutionally valid portion of a sentence associated
with an uncounseled misdemeanor conviction. See Ortega, 94 F.3d at 769–70;
Jackson, 493 F.3d at 1183. In Ortega, a defendant objected to the assessment of a
criminal history point attributable to an uncounseled misdemeanor conviction for
which he had received a suspended sentence of imprisonment, a sentence of
probation, and a monetary fine. 94 F.3d at 766, 768–69. The Second Circuit
rejected the defendant’s challenge and concluded that, even if his suspended prison
sentence or his sentence of probation had violated his right to counsel, under the
Sixth Amendment, the defendant’s “conviction and the monetary portion of his
sentence were clearly valid . . . and were properly considered in his criminal
history . . . .” Id. at 768–70. Likewise, in Jackson, the defendant complained that
the “federal district court charged with assessing an appropriate sentence for his
participation in a conspiracy to distribute cocaine erred by considering his prior
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uncounseled state misdemeanor sentences.” 493 F.3d at 1179. The government
conceded that a suspended prison sentence that the defendant had received for one
of the misdemeanors had “violated the Sixth Amendment,” but argued that “the
conviction itself, together with the portion of the sentence imposing a fine, was
both constitutional and sufficient to sustain the assessment of a criminal history
point . . . .” Id. at 1181. The Tenth Circuit affirmed the assessment of the criminal
history point, on the ground that the payment of a fine is a sentence “that . . . poses
no Sixth Amendment problems and . . . may be employed as a sentencing
enhancement.” Id. at 1180, 1183.
The district court did not err when it assessed one criminal history point for
Acuna-Reyna’s uncounseled misdemeanor conviction. Section 4A1.1 of the
Guidelines provides that one criminal history point should be assessed for a
sentence of a fine imposed in connection with a conviction for driving under the
influence of alcohol. See U.S.S.G. § 4A1.1(c), § 4A1.1 cmt. 3, § 4A1.1 cmt.
background, § 4A1.2(c). The district court assessed one criminal history point
attributable to Acuna-Reyna’s misdemeanor conviction for which a fine had been
imposed. We affirm the assessment of that point on the basis of Acuna-Reyna’s
monetary sentence alone.
IV. CONCLUSION
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We AFFIRM Acuna-Reyna’s sentence of 27 months of imprisonment for
illegal reentry after deportation.
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