United States v. Dominguez-Gonzales

102 F. App'x 429

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 13, 2004
• Docket: 03-40004
• Status: Unpublished

Opinion

PER CURIAM: *

Appellant Eulogio Dominguez-Gonzales challenges his felony illegal reentry conviction under 8 U.S.C. § 1325(a) on the ground that his prior misdemeanor conviction for illegal entry was the result of an uncounseled plea and, therefore, was improperly used to enhance the instant felony offense. Appellant’s misdemeanor conviction resulted in a stand-alone sentence of probation that did not carry with it a term of imprisonment or a suspended sentence. Accordingly, he was not entitled to counsel when he pleaded guilty to the misdemeanor charge. See United States v. Perez-Macias, 335 F.3d 421, 427-28 (5th Cir.2003). 1 Appellant attempts to distinguish Perez-Macias because the court later revoked his probation and imposed a jail sentence. Nothing in Perez-Macias, however, “suggests that the plea and the conviction based on that guilty plea should be retroactively vacated because the defendant violated the terms of his probation and the court found it necessary to revoke the probation.” United States v. Rios-Cruz, No. 03-40074, 2004 WL 1469290, at *1 (5th Cir. May 17, 2004). Because there was no Sixth Amendment violation with respect to Appellant’s prior misdemeanor conviction, this conviction properly served to enhance the instant offense. See Nichols v. United States, 511 U.S. 738, 748-49, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994); Perez-Macias, 335 F.3d at 428-29. We, therefore, affirm.

AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

1 . Appellant challenges this Court’s holding in Perez-Macias. He concedes that the decision in Perez-Macias is binding on the Court, but raises the issue to preserve it for further review.