United States v. Carlos Franco-Lira

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 20, 2019
• Docket: 18-14733
• Status: Unpublished

Opinion

Case: 18-14733 Date Filed: 05/20/2019 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-14733 Non-Argument Calendar ________________________

D.C. Docket No. 1:18-cr-00066-ELR-RGV-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CARLOS FRANCO-LIRA,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(May 20, 2019)

Before WILLIAM PRYOR, GRANT, and EDMONDSON, Circuit Judges. Case: 18-14733 Date Filed: 05/20/2019 Page: 2 of 4

PER CURIAM:

Carlos Franco-Lira appeals his 18-month sentence. The challenged sentence

was imposed after Franco-Lira pleaded guilty (without a plea agreement) to re-

entering illegally the United States after being deported, in violation of 8 U.S.C.

§ 1326(a) and (b). Reversible error has been shown; we vacate Franco-Lira’s

sentence and remand to the district court for resentencing.

On appeal, Franco-Lira argues that the district court erred in applying a six-

level sentencing enhancement, pursuant to U.S.S.G. § 2L1.2(b)(2)(C). Franco-Lira

contends that the state sentence imposed in 2007 upon the revocation of Franco-

Lira’s probation was invalid and, thus, not countable for guidelines purposes. The

government agrees. Both parties request that this Court vacate Franco-Lira’s

sentence and remand for resentencing.

We review de novo the district court’s interpretation and application of the

Sentencing Guidelines. United States v. Rodriguez, 732 F.3d 1299, 1305 (11th

Cir. 2013). We review the district court’s factual findings for clear error. Id.

“When a defendant challenges one of the factual bases of his sentence . . .

the Government has the burden of establishing the disputed fact by a

preponderance of the evidence.” Id. To satisfy its burden, the government must

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come forward with “reliable and specific evidence.” Id. Courts may “not

speculate concerning the existence of a fact which would permit a more severe

sentence under the guidelines.” Id.

The fact in dispute at sentencing was whether Franco-Lira was able to read

or to speak English in 2007 when he signed a waiver of his right to have a lawyer

represent him during his probation-revocation proceedings. Franco-Lira contends

that, because he was unable to speak English and was not otherwise advised of his

rights in Spanish, his waiver was not made knowingly or voluntarily. We have

said that, where a defendant is unable to speak English, he waives his rights

knowingly and voluntarily when he has been advised of his rights and provided

with a waiver form in his native language. See United States v. Boon San Chong,

829 F.2d 1572, 1574-75 (11th Cir. 1987).

The record supports Franco-Lira’s contention that he was unable to read or

to speak English in 2007. Franco-Lira came to the United States from Mexico at

age 11, resided with Spanish-speaking family members, worked in construction

jobs with other Spanish-speakers, and received no formal education or training in

English. Meanwhile, the government presented no “reliable and specific evidence”

showing, by a preponderance of the evidence, that Franco-Lira could read or speak

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English when he signed the English-language waiver form or that Franco-Lira was

advised of his rights in Spanish.

Insufficient evidence exists from which the district court could have found

and concluded that Franco-Lira waived knowingly and voluntarily his right to legal

representation during his probation-revocation proceedings and, thus, that the

resulting sentence was valid and countable under section 2L1.2(b)(2)(C).

Accordingly, we vacate Franco-Lira’s sentence and remand to the district court for

resentencing.

SENTENCE VACATED AND REMANDED.