Opinion
No. 07-50976 Summary Calendar.
June 10, 2008.
Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.
Miguel A. Torres, El Paso, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas, USDC No. 3:07-CR-523-ALL.
Before STEWART, OWEN and SOUTHWICK, Circuit Judges.
Benjamin Rubalcaba-Vazquez was convicted of one count of attempted illegal reentry into the United States and sentenced to serve 76 months in prison. Rubalcaba-Vazquez appeals his sentence. He argues that the district court erred by including three of his prior convictions in his criminal history score. He contends that these convictions should not have been scored because he was not represented by counsel in connection with these convictions. He thus contends that the district court used the wrong guidelines sentencing range when sentencing him and that his range should have been significantly lower.
When reviewing a sentence, we typically consider whether the district court committed procedural error at sentencing and whether the sentence imposed is substantively reasonable. See Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (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.
Rubalcaba-Vazquez's sentencing claim, however, is reviewed for plain error only because it was not presented to the district court. See United States v. Hernandez-Martinez, 485 F.3d 270, 272 (5th Cir. 2007). Under the plain error standard of review, "reversal is not required unless there is (1) an error; (2) that is clear or plain; (3) that affects the defendant's substantial rights; and (4) that seriously affects the fairness, integrity or public reputation of judicial proceedings." United States v. Vasquez, 216 F.3d 456, 459 (5th Cir. 2000).
Rubalcaba-Vazquez's claim is unavailing. The record does confirm Rubalcaba-Vazquez's assertion that the disputed convictions were uncounseled. However, the record does not show whether these convictions were uncounseled because Rubalcaba-Vazquez validly waived his right to counsel or because he was uninformed of his right to counsel. Consequently, Rubalcaba-Vazquez has not carried his burden of showing that the disputed convictions were constitutionally infirm, nor has he shown plain error in connection with his sentence. See United States v. Osborne, 68 F.3d 94, 100-01 (5th Cir. 1995). The judgment of the district court is AFFIRMED.