USA v. Josue L. Feliciano, 06-3423.  Josue Feliciano’s appeal focuses on the district court’s reliance for purposes of a federal sentence on an earlier misdemeanor conviction he received in Florida, in a case where he proceeded without counsel.

Feliciano was before the federal court on charges of distributing methamphetamine in Wisconsin, in violation of 21 U.S.C. § 841(a)(1). He pleaded guilty to those charges. At his sentencing hearing, he objected to the part of the pre-sentence report that recommended use of the Florida conviction in calculating his criminal history for purposes of the federal Sentencing Guidelines. The district court overruled that objection, finding that Feliciano had no constitutional right to counsel under the circumstances presented there.

The government concedes that this finding was erroneous, but it argues that the record supports a finding that Feliciano waived his right to counsel in the Florida proceeding and urges us to affirm his 55-month prison sentence on that basis.

At arraignment, the judge advised Feliciano about the offense with which he was charged and that he was facing up to a year of prison, up to a year of probation, and a fine of up to $1000. The judge also told him that he had the right to be represented by a lawyer and that one would be appointed for him if he could not afford one.

Feliciano confirmed that he understood that he had the right to counsel. Feliciano indicated that he wished to enter his plea without the assistance of counsel, and he said that he had read and understood everything on the written plea form and the form for waiving counsel. He also signed the written waiver form, which said "I hereby waive my right to consult an attorney or to have an attorney appointed." The judge then asked him how he wished to plead, to which he responded "Guilty."

The judge also assured Feliciano that he would not impose any jail sentence for a plea of guilty, and that if the judge did so, he would give Feliciano an opportunity to change his plea. After granting this assurance, the judge then asked Feliciano if he had read and understood everything contained in the plea form and waiver form, and wished to enter a plea without representation. Feliciano responded "Yes."

The judge next examined the voluntariness of Feliciano’s plea in the standard manner.  The judge again asked him how he wished to plead, and he again answered, "Guilty." The judge accepted his plea.

Then, without offering Feliciano a chance to withdraw his plea, the judge sentenced him to two days in jail, with two days’ credit for time already served, and one year of probation. (From a "glass half full" perspective, this was consistent with the judge’s promise not to give jail time, if by that he had meant additional jail time; from the "glass half empty" perspective, it contradicted the promise the judge had just made and gave rise to the problems Feliciano was soon to face in Wisconsin.)

The Supreme Court has held that because a conviction obtained in violation of the Sixth Amendment is "void," it would undermine the fundamental principles of Gideon v. Wainwright, 372 U.S. 335 (1963), to enhance a sentence with an invalid conviction and thereby further restrict the defendant’s liberty. Custis v. United States, 511 U.S. 485, 494-95 (1994); see Johnson v. United States, 544 U.S. 295, 303 (2005). For purposes of the Sentencing Guidelines, if the defendant proves that a Sixth Amendment violation occurred, the prior conviction cannot be counted in his criminal history score. See 21 U.S.C. § 851(c)(2). He is thus entitled to raise his argument about the Florida proceeding now, for that limited purpose.

The government concedes that Feliciano had this right, and our independent examination of the issue shows that it is correct to do so.

The Supreme Court has held that, absent a knowing and intelligent waiver, no person may be imprisoned for any length of time, regardless of the classification of the person’s offense, unless that person was represented by counsel. Glover v. United States, 531 U.S. 198, 203 (2001); Scott v. Illinois, 440 U.S. 367, 373-74 (1979); Argersinger v. Hamlin, 407 U.S. 25, 31, 37 (1972).

By contrast, when a defendant is convicted without the assistance of counsel but is not sentenced to a period of incarceration, there is no Sixth Amendment violation and thus that conviction may be considered in subsequent sentencing proceedings. Nichols v. United States, 511 U.S. 738, 748-49 (1994). Accordingly, Feliciano had a right to counsel in the Florida case if the right to counsel applies to a sentence of imprisonment that is satisfied by time already served before conviction.

This court’s decision in United States v. Staples, 202 F.3d 992, 997 (7th Cir. 2000), supports his argument, though the case is not directly on point.

Since Feliciano did have a right to counsel, we must finally consider whether he waived that right.

The Supreme Court has held that waiver of the right to counsel must be knowing, voluntary, and intelligent. Iowa v. Tovar, 541 U.S. 77, 81, 88 (2004). The accused does not need to appreciate all the consequences flowing from his choice, but he or she must understand the nature of the right and how it would apply in general under the circumstances. Tovar, 541 U.S. at 92. In the context of a guilty plea, a trial court must inform a defendant "of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea." Tovar, 541 U.S. at 81; Speights v. Frank, 361 F.3d 962, 964-65 (7th Cir. 2004) ("It is enough, Tovar held, if the accused knows of his right to counsel and the plea itself is voluntary.").

The Supreme Court has held that waiver of the right to counsel must be knowing, voluntary, and intelligent. Iowa v. Tovar, 541 U.S. 77, 81, 88 (2004). The accused does not need to appreciate all the consequences flowing from his choice, but he or she must understand the nature of the right and how it would apply in general under the circumstances. Tovar, 541 U.S. at 92. In the context of a guilty plea, a trial court must inform a defendant "of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea." Tovar, 541 U.S. at 81; Speights v. Frank, 361 F.3d 962, 964-65 (7th Cir. 2004) ("It is enough, Tovar held, if the accused knows of his right to counsel and the plea itself is voluntary.").

Feliciano had a right to counsel in the Florida proceedings, but we conclude that he waived it. We therefore AFFIRM the judgment of the district court.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

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