United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 2, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-41403
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
RICARDO PEREZ-MACIAS
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before KING, Chief Judge, and DAVIS, Circuit Judge, and
ROSENTHAL, District Judge.*
KING, Chief Judge:
Ricardo Perez-Macias appeals his conviction and sentence,
arguing that under the Supreme Court’s recent decision in Alabama
v. Shelton, 535 U.S. 654 (2002), his prior uncounseled
misdemeanor conviction for illegal entry under 8 U.S.C.
§ 1325(a), for which he received a probated sentence, violated
his Sixth Amendment right to counsel and therefore cannot form
the predicate for the instant felony conviction for illegal entry
under § 1325(a). We affirm.
I. FACTUAL AND PROCEDURAL HISTORY
A. The First Offense
*
United States District Judge Lee H. Rosenthal of the
Southern District of Texas, sitting by designation.
On May 7, 2002, Defendant-Appellant Ricardo Perez-Macias1
illegally entered the United States; he was arrested the next
day. On May 9, he was charged in federal district court in
Laredo with a misdemeanor offense of illegal entry in violation
of 8 U.S.C. § 1325(a) (2000).2 Perez-Macias is a Mexican citizen
with no legal status in the United States who has entered the
United States illegally approximately fifteen times.3 He
appeared pro se, entered a plea of guilty, and was sentenced to a
three-year term of unsupervised probation and a $10 special
assessment. The Immigration and Naturalization Service then
allowed Perez-Macias to voluntarily return to Mexico.
B. The Second Offense
Less than two weeks later, on May 20, 2002, Perez-Macias
crossed the Rio Grande River and again illegally entered the
1
The defendant explained in the sentencing hearing for
his first offense that his last name is actually Perez-Marcias,
not Perez-Macias. However, because both parties and all of the
court documents refer to the defendant as Perez-Macias, we will
as well.
2
The statute provides:
Any alien who (1) enters or attempts to enter the
United States at any time or place other than as
designated by immigration officers . . . shall, for the
first commission of any such offense, be fined under
title 18 or imprisoned not more than 6 months, or both,
and, for a subsequent commission of any such offense,
be fined under title 18 or imprisoned not more than 2
years, or both.
8 U.S.C. § 1325(a) (2000).
3
Though Perez-Macias entered the United States illegally
many times, he was only prosecuted twice, for the May 7, 2002
offense and for the May 20, 2002 offense.
2
United States. He was arrested by border patrol agents in Three
Rivers, Texas, on May 21, 2002.
On June 13, 2002, Perez-Macias was indicted in federal
district court in Corpus Christi on one felony count of illegal
entry in violation of 8 U.S.C. § 1325(a)(1) (2000)4 and two
counts of transporting illegal aliens in violation of 8 U.S.C.
§§ 1324(a)(1)(A)(ii) and 1324(a)(1)(B)(ii) (2000). Because of
this second offense, the magistrate judge who sentenced Perez-
Macias in the first case began proceedings to revoke Perez-
Macias’s probation. The district court in this case sought and
received transfer of the probation revocation proceedings to it
in order to consolidate the revocation and the sentencing on the
second offense.
As part of a plea agreement, Perez-Macias agreed to plead
guilty to the illegal entry count in exchange for the United
States’s agreement to recommend the maximum credit for acceptance
of responsibility and to dismiss the other two counts. The
district court accepted Perez-Macias’s guilty plea and considered
the appropriate sentence. The district court sentenced Perez-
Macias for the charged felony illegal entry offense, rather than
4
The indictment charged:
On or about May 20, 2002, in the Southern District of
Texas and within the jurisdiction of the Court, the
defendant, RICARDO PEREZ-MACIAS, an alien, having been
convicted previously on May 9, 2002, for illegally
entering the United States in violation of Title 8,
United States Code, Section 1325, did knowingly enter
the United States at a place other than as designated
by the immigration officers.
3
a misdemeanor offense, because he had previously been convicted
of illegal entry. The Presentence Report (“PSR”) recommended
Perez-Macias be sentenced with an offense level of 6.5 This
reflected a base offense level of 8 for a repeat violation of 8
U.S.C. § 1325(a) with two levels subtracted for acceptance of
responsibility. See U.S. SENTENCING GUIDELINES MANUAL § 2L1.2 (2001).
The PSR also added three points for criminal history: one for
Perez-Macias’s prior illegal entry conviction and two because he
was on probation for that offense when he committed the instant
offense. See U.S. SENTENCING GUIDELINES MANUAL § 4A1.1 (2001). These
three criminal history points put Perez-Macias in a criminal
history category of II.
Perez-Macias objected to the use of his prior uncounseled
misdemeanor to enhance his sentence, arguing that under Alabama
v. Shelton, 535 U.S. 654 (2002), the misdemeanor conviction was
obtained in violation of his Sixth Amendment right to counsel.
Specifically, Perez-Macias objected to the use of his prior
conviction to both: (1) enhance his offense from misdemeanor
illegal entry (for which the maximum sentence is six months) to
felony illegal entry (for which the maximum sentence is two
years) under 8 U.S.C. § 1325(a) and (2) add three criminal
history points to place him in a criminal history category of II
under the Sentencing Guidelines.
The district court agreed with Perez-Macias, finding that
5
The district court used the 2001 version of the United
States Sentencing Guidelines.
4
Shelton bars the use of his prior uncounseled misdemeanor because
Perez-Macias received probation in that case.6 Therefore, the
district court relieved Perez-Macias of the probation sentence in
the first case and left only the $10 special assessment.7 The
district court then determined that, having vacated the sentence
of probation from the misdemeanor conviction, that conviction
could permissibly be used to enhance the instant offense from a
misdemeanor to a felony. Alternatively, the district court held
that 8 U.S.C. § 1325(a)’s felony enhancement provision, which
states that a prior “commission” of an illegal entry offense may
be used to enhance a subsequent offense, does not require a
“conviction,” so that even if Perez-Macias’s previous conviction
was invalid under Shelton, his first offense may still be used to
6
The district court considered, and rejected, the United
States’s argument that Perez-Macias knowingly and intelligently
waived his right to counsel in the prior proceeding. The United
States has not appealed this holding.
7
The district court explained:
Here’s what we’re going to do: We’re going to give
you both something to appeal. . . . [W]ith respect to
the Laredo cause number that’s been transferred up to
me, 02-1759M, that probationary period of two [sic]
years, he is relieved of that probation and he no
longer stands subject to that probation. However, the
conviction remains as well as does his requirement to
pay $10. . . .
With respect to Cause Number 02-168 out of this
court, the Court does not find that he was under a
sentence of probation. The Court, I guess, would
presume – and I think it’s fair to presume – that that
would have to be valid probation. And having
determined in a contemporaneous proceeding that it is
an invalid probation, the Court will not award those
two points.
5
enhance his second offense. After holding that the previous
conviction could be used to enhance the offense under § 1325(a),
the district court decided to use the prior conviction, but not
the prior (and now vacated) sentence of probation, to determine
Perez-Macias’s criminal history category. The district court
thus gave Perez-Macias one criminal history point (rather than
three), but then departed upward to a criminal history category
of III (under U.S. SENTENCING GUIDELINES MANUAL § 4A1.3) because
Perez-Macias had previously and repeatedly illegally entered the
United States. The district court sentenced Perez-Macias to
eight months in prison, one year of supervised release, and a
$100 special assessment. The district court then entered an
order dismissing the probation revocation proceedings because it
had “delet[ed] the term of probation.”8
Perez-Macias appealed. He now argues that: (1) under
Alabama v. Shelton, his prior uncounseled misdemeanor conviction
cannot be used to enhance his offense from a misdemeanor to a
felony and (2) the district court erred in its alternative
holding that 8 U.S.C. § 1325(a) requires only “commission” of an
offense and not a “conviction.”9
8
Neither Perez-Macias nor the United States has appealed
this order or questioned the power of the district court to
modify the sentence in the first case without holding a probation
revocation hearing.
9
Perez-Macias does not argue on appeal that his prior
conviction was unconstitutionally used to calculate his criminal
history category or that the district court erred in departing
upward in determining his criminal history category.
6
II. STANDARD OF REVIEW
Constitutional questions are reviewed by this court de novo.
E.g., United States v. Aguilar-Tamayo, 300 F.3d 562, 564 (5th
Cir. 2002). Issues of statutory interpretation are also reviewed
de novo. E.g., United States v. Hanafy, 302 F.3d 485, 487 (5th
Cir. 2002).
III. DISCUSSION
A. Whether Perez-Macias’s prior uncounseled misdemeanor
conviction can be used to enhance his current illegal
entry offense from a misdemeanor to a felony
Perez-Macias argues that his prior uncounseled misdemeanor
cannot be used to enhance the offense in this case from a
misdemeanor to a felony. Specifically, he reads the Supreme
Court’s recent ruling in Alabama v. Shelton, holding that there
is a Sixth Amendment right to counsel in misdemeanor cases where
a suspended sentence is imposed, to require counsel (or a valid
waiver of counsel) in misdemeanor cases where only probation is
imposed. Assuming that his prior conviction was
unconstitutional, then, Perez-Macias argues it cannot be used to
enhance his current offense from a misdemeanor to a felony even
though the district court vacated the sentence of probation.
The United States argues that Perez-Macias’s prior
misdemeanor may be used to enhance his current offense because
Shelton applies to require counsel only when suspended sentences,
and not when stand-alone sentences of probation, are imposed.
The United States argues that a defendant sentenced to probation
does not have a Sixth Amendment right to counsel so long as he
7
never receives a sentence of imprisonment. The United States
further argues that even if Shelton applies to require counsel
before a defendant may be sentenced to imprisonment upon
revocation of his probation, because the district court in this
case vacated the sentence of probation for the first offense,
Perez-Macias could never be sentenced to prison for that offense.
Hence, his previous conviction may be used to enhance his
sentence for the current offense.
The district court determined that Shelton gave Perez-Macias
a Sixth Amendment right to counsel in his first case because he
was sentenced to probation. The district court then vacated
Perez-Macias’s sentence of probation in the first case and held
that the first conviction could permissibly be used to enhance
the current offense from a misdemeanor to a felony under 8 U.S.C.
§ 1325(a).
The Supreme Court has explained that a defendant has a Sixth
Amendment right to counsel in a misdemeanor case only under
certain circumstances.10 In Argersinger v. Hamlin, the Supreme
Court held that “absent a knowing and intelligent waiver, no
person may be imprisoned for any offense, whether classified as
petty, misdemeanor, or felony, unless he was represented by
counsel at his trial.” 407 U.S. 25, 37 (1972) (emphasis added).
In Scott v. Illinois, the Court clarified that the right to
10
In contrast to a misdemeanor case, a defendant charged
with a felony always has a Sixth Amendment right to counsel. See
Gideon v. Wainwright, 372 U.S. 335, 339-45 (1963).
8
counsel only applies where the defendant is actually sentenced to
imprisonment and not merely where imprisonment is an authorized
penalty.11 See 440 U.S. 367, 370-74 (1979). In Nichols v.
United States, the Court went one step further, explaining that
an uncounseled misdemeanor conviction that was valid under Scott
because no term of imprisonment was imposed may be used to
enhance the penalty for a subsequent offense. See 511 U.S. 738,
748-49 (1994).
In Alabama v. Shelton, the Court considered whether a
defendant sentenced to a suspended sentence of imprisonment has a
Sixth Amendment right to counsel. See 535 U.S. 654, 122 S. Ct.
1764, 1767 (2002). Shelton was convicted of third-degree assault
in Alabama state court and was sentenced to a suspended 30-day
prison sentence, two years’ unsupervised probation, and monetary
penalties. See id. at 1767-68. The Court held that a suspended
sentence is a “term of imprisonment” requiring counsel under
Argersinger and its progeny. See id. at 1767. The Court
explained that “[a] suspended sentence is a prison term imposed
for the offense of conviction. Once the prison term is
triggered, the defendant is incarcerated not for the probation
violation, but for the underlying offense.” Id. at 1770.
Shelton did not address the sentence of probation at issue
11
Perez-Macias suggests that we hold that there is a
right to counsel in any case where imprisonment is an authorized
punishment. Because the Supreme Court has previously rejected
that argument, see Scott, 440 U.S. at 370-74, we reject the
argument as well.
9
in this case because a suspended sentence is not the same as a
stand-alone sentence of probation. The sentence under
consideration in Shelton was a suspended sentence coupled with
probation, while in this case, Perez-Macias received probation
without a suspended sentence.12 Many, if not all, states impose
probation only in connection with a suspended sentence. See
Shelton, 122 S. Ct. at 1776 (noting “the Alabama Attorney
General’s acknowledgment at oral argument that he did not know of
any State that imposes, postconviction . . . a term of probation
unattached to a suspended sentence”). In contrast, in the
federal system, probation is available as a stand-alone sentence
and suspended sentences are not used. See U.S. SENTENCING
GUIDELINES MANUAL ch. 7, introductory cmt. (2001) (“The statutory
authority to ‘suspend’ the imposition or execution of a sentence
in order to impose a term of probation was abolished upon
implementation of the sentencing guidelines. Instead, the
Sentencing Reform Act recognized probation as a sentence in
itself.”); see also 18 U.S.C. § 3561 (authorizing a sentence of
probation). None of our sister circuits has yet addressed how
Shelton applies to federal stand-alone probation sentences.
A suspended sentence is conceptually different from a
sentence of probation. If a defendant receives a suspended
12
Perez-Macias was also sentenced to a $10 special
assessment, but this fine is not relevant to the Sixth Amendment
analysis because Scott made it clear that imposition of a fine
does not trigger the right to counsel. See Scott, 440 U.S. at
368-74.
10
sentence, he is sentenced to a term of imprisonment that is
suspended. See Shelton, 122 S. Ct. at 1770. Suspended sentences
are usually imposed in conjunction with probation so that if a
defendant commits another crime or violates a condition of
probation, his suspended sentence is activated. See id. If a
defendant receives only a sentence of probation, he is sentenced
to community release with conditions; he does not receive a
sentence of imprisonment.13 See, e.g., Wayne R. LaFave et al.,
Criminal Procedure 1199-1200 (3d ed. 2000). If a defendant
serving a stand-alone probation sentence violates a condition of
probation, his probation may be revoked after a hearing and he
may be sentenced to any punishment that was originally available
at sentencing. See 18 U.S.C. § 3565 (2000); FED. R. CRIM. P.
32.1; see also Gagnon v. Scarpelli, 411 U.S. 778, 782, 787-90
(1973) (holding that a defendant has a due-process right to a
hearing before his probation is revoked). At a probation
revocation hearing, federal law grants the defendant a right to
counsel, a right to written notice of the violation, disclosure
of evidence against him, the opportunity to hear and present
evidence, and the opportunity to question adverse witnesses. See
18 U.S.C. § 3006A(a)(1)(c) (2000); FED. R. CRIM. P. 32.1. The
district court does not retry issues of guilt or innocence; the
only issue is whether the defendant violated a condition of
13
Probation should be distinguished from supervised
release: probation is imposed instead of imprisonment, while
supervised release is imposed after imprisonment. See U.S.
SENTENCING GUIDELINES MANUAL ch. 7, introductory cmt. (2001).
11
probation and what should be done about it. See United States v.
Francischine, 512 F.2d 827, 829 (5th Cir. 1975). The issue of
whether there was a violation need not be determined beyond a
reasonable doubt and the Federal Rules of Evidence generally need
not be followed. See id.; FED. R. EVID. 1101(d)(3).
The Shelton Court expressly refused to address whether its
holding applies to a sentence of probation uncoupled with a
suspended sentence. Initially, the Court limited its holding to
suspended sentences: “We hold 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.” Shelton, 122
S. Ct. at 1767 (quoting Argersinger, 407 U.S. at 40) (emphasis
added). The Court then noted that though Alabama “invite[d]
[them] to regard two years’ probation for Shelton as a separate
and independent sentence” and hold that “probation uncoupled from
a prison sentence should trigger no immediate right to appointed
counsel,” the Court would not consider that argument because
“[t]here is not so much as a hint . . . in the decision of the
Supreme Court of Alabama[] that Shelton’s probation term is
separable from the prison term to which it was tethered.”
Shelton, 122 S. Ct. at 1775-76. The Court thus stated: “Absent
any prior presentation of the position the State now takes, we
resist passing on it in the first instance.” Id. at 1776
(citation omitted). Shelton, by its very language, does not
address the right to counsel in misdemeanor cases where a
12
defendant receives a stand-alone probation sentence.
Further, we do not believe that the logic of Shelton compels
extension of the right to counsel to cases where the defendant
receives a sentence of probation uncoupled with a suspended
sentence. The key to the Supreme Court’s jurisprudence
addressing the right to counsel in misdemeanor cases is whether
the defendant receives a sentence of imprisonment. See Nichols,
511 U.S. at 749 (“[A]n uncounseled misdemeanor conviction, valid
under Scott because no prison term was imposed, is also valid
when used to enhance punishment at a subsequent conviction.”)
(emphasis added); Scott, 440 U.S. at 374 (“[N]o indigent criminal
defendant [may] be sentenced to a term of imprisonment unless the
State has afforded him the right to assistance of appointed
counsel in his defense.”); Argersinger, 407 U.S. at 37 (“[A]bsent
a knowing and intelligent waiver, no person may be imprisoned for
any offense . . . unless he was represented by counsel at his
trial.”) (emphasis added). The Court has made it clear “that
actual imprisonment is a penalty different in kind from fines or
the mere threat of imprisonment” and that “actual imprisonment
[i]s the line defining the constitutional right to appointment of
counsel.” Scott, 440 U.S. at 373. The Shelton Court reaffirmed
the “actual imprisonment” standard. See 122 S. Ct. at 1769-70.
Applying that standard to this case, we find the answer clear. A
defendant who receives a suspended sentence is given a term of
imprisonment, while a defendant who receives a stand-alone
sentence of probation is not. Perez-Macias was sentenced to
13
probation, not to prison, and thus his previous conviction may be
used to enhance his current offense.14
At the same time, we are cognizant of the fact that a
misdemeanor defendant sentenced to probation could,
theoretically, receive a prison term upon revocation of his
probation. Though this mere threat of imprisonment does not
dictate that the defendant be afforded counsel for his trial, the
actual imposition of a term of imprisonment upon probation
revocation may pose a Sixth Amendment problem.15 That is, it may
be the case that a misdemeanor defendant who was convicted
without counsel may not be sentenced to prison upon revocation of
his probation. We need not address that issue, however. Here,
the district court relieved Perez-Macias of the probation
sentence for his first offense, leaving only a fine. See Scott,
440 U.S. at 370-74 (holding there is no Sixth Amendment right to
counsel when only a fine is imposed). The district court then
dismissed the pending probation revocation proceedings for that
14
We thus disagree with the district court’s holding that
Shelton bars imposition of a sentence of probation on an
uncounseled misdemeanor defendant who did not validly waive his
right to counsel. Put simply, the district court erred in
equating suspended sentences with probation.
15
In its brief to this court, the United States conceded
that an uncounseled defendant sentenced to stand-alone probation
who violates a condition of probation may not be sentenced to
imprisonment at his probation revocation hearing. It stated that
“if Perez had not validly waived counsel at the time of his
original misdemeanor plea, then under Scott and Argersinger the
sentencing court would not be permitted to impose a sentence to
imprisonment upon revocation of Perez’s probation.” Upon inquiry
from this court, the United States Attorney confirmed that this
is also the position of the Department of Justice generally.
14
offense; neither party appeals that ruling. Thus, Perez-Macias
did not and cannot receive a term of imprisonment for his first
offense. As a result, there is no Sixth Amendment problem with
Perez-Macias’s first conviction and it may be used to enhance the
instant offense. See Nichols, 511 U.S. at 748-49.
B. Whether the district court erred in alternatively
holding that only commission of a prior offense, but
not a conviction, is required to enhance a misdemeanor
illegal entry offense to a felony under 8 U.S.C.
§ 1325(a)
Because we affirm Perez-Macias’s conviction and sentence on
the grounds that Perez-Macias’s prior conviction was validly used
to enhance his current offense, we do not consider the district
court’s alternative holding that 8 U.S.C. § 1325(a) requires only
evidence of commission of an offense, and not a prior conviction,
to enhance a misdemeanor illegal entry offense to a felony.
IV. CONCLUSION
For the foregoing reasons, Perez-Macias’s conviction and
sentence are AFFIRMED.
15