United States v. Fernandez-Elizalde

35 F. App'x 626

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 24, 2002
• Docket: No. 01-10267; D.C. No. CR-00-01371-JMR
• Status: Published

Opinion

MEMORANDUM

**

Francisco Fernandez-Elizalde appeals the 37-month sentence imposed after his guilty-plea conviction to illegal re-entry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 18 U.S.C. § 3742, and affirm.

Fernandez-Elizalde contends the district court erred by improperly calculating his criminal history score. We review de novo the district court’s determination that a prior conviction may be used in calculating the criminal history score, see United States v. Allen, 153 F.3d 1037, 1040 (9th Cir.1998), and find no error.

Fernandez-Elizalde argues the district court’s use of his 1995 misdemeanor conviction violated United States v. Akins, 276 F.3d 1141, 1149 (9th Cir.2002), which held a defendant must be advised of the dangers of self-representation before the waiver of the right of counsel can be deemed knowing and intelligent.

Fernandez-Elizalde’s reliance on Akins is misplaced, however, because the record in Akins did not contain a colloquy regarding Akins’ Sixth Amendment rights. Id. at 1145 & n. 1. In contrast, the record here demonstrates Fernandez-Elizalde was orally informed of his right to counsel, and the trial court found he knowingly and intelligently waived his right to counsel. Cf id. at 1147. Moreover, FernandezElizalde has failed to present any evidence that the waiver was invalid. See Allen, 153 F.3d at 1041.

As such, the district court did not err by including the 1995 conviction when it computed Fernandez-Elizalde’s criminal history score.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.