United States v. Gracia-Gracia

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 30, 2004
• Docket: 02-41790
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT January 30, 2004

Charles R. Fulbruge III Clerk No. 02-41756 c/w No. 02-41790 c/w No. 02-41791 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ELEUTERIO GRACIA-GRACIA,

Defendant-Appellant.

Appeals from the United States District Court for the Southern District of Texas USDC No. B:02-CR-619-1

Before JONES, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:*

Eleuterio Gracia-Gracia appeals his illegal reentry

conviction and the revocation of the probationary term imposed

pursuant to his misdemeanor conviction for unlawful entry.

He argues that the imposition of a sentence of imprisonment upon

the revocation of his probationary term was plain error because he

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. was not advised of the dangers of self-representation when he

waived his right to counsel and pleaded guilty to unlawful entry.

Assuming arguendo that a direct appeal is the proper

avenue for Gracia-Gracia’s challenge, and that the factual

questions in regard to waiver of counsel are susceptible of review,

the record evidence shows that he validly waived his Sixth

Amendment right to counsel. With the aid of an interpreter, the

magistrate judge informed Gracia-Gracia three times of his right to

appointment of counsel and explained the maximum possible sentence

for his misdemeanor charge. Gracia-Gracia also signed a written

waiver drafted in his native Spanish, in which he acknowledged but

waived his right to appointment of counsel. Although Gracia-Gracia

was arraigned in a group, had only a sixth-grade education, and

could not speak English, he has never complained that he did not

understand the right to counsel or the consequence of its waiver.

Moreover, Gracia-Gracia was able to appreciate the value of that

right during his prior adjudication on the charge of alien

transportation. We therefore hold that Gracia-Gracia validly

waived his Sixth Amendment right. See Argersinger v. Hamlin, 407

U.S. 25, 37 (1972).

Gracia-Gracia concedes that the issue whether 8 U.S.C.

§ 1326(b)(1)&(2) is unconstitutional in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000), is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224 (1998), and he raises it only to

preserve its further review. We must follow the precedent set

2 in Almendarez-Torres “unless and until the Supreme Court itself

determines to overrule it.” United States v. Dabeit, 231 F.3d 979,

984 (5th Cir. 2000) (internal quotation and citation omitted).

AFFIRMED.