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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-11878
Non-Argument Calendar
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D.C. Docket No. 1:17-cr-00420-LMM-JSA-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HUMBERTO DE JESUS ANAYA-PLASCENCIA,
a.k.a. Humberto D. Anaya Plascencia,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(November 20, 2018)
Before JORDAN, BRANCH, and HULL, Circuit Judges.
PER CURIAM:
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Humberto Anaya-Plascencia challenges his six-month sentence for illegal
reentry, in violation of
8 U.S.C. § 1326(a). He argues that the district court erred
when calculating his criminal history category in considering his earlier guilty
pleas for misdemeanors from 2012 and 2017.1
In 2012, Anaya pled guilty to driving without a license and driving under the
influence of alcohol and received a two-day sentence with twelve months’
probation and fines. Anaya signed a Spanish-language waiver-of-rights form that
included an attestation signed by the judge that “The defendant has knowingly,
intelligently, and understandingly waived his rights, including . . . his right to be
represented by an attorney.”
Similarly, in 2017, Anaya again pled guilty to driving under the influence
and driving without a license, and received a ten-day sentence with twelve months’
1
The timing and nature of this appeal prompts us to address the likelihood that the case is moot,
even though neither party confronted that possibility in the briefs. We note that Anaya challenges
only his completed term of custody, and not his conviction or his one-year ongoing term of
supervised release. Thus, he bears the burden of “identifying some ongoing collateral
consequence that is traceable to the challenged portion of the sentence and likely to be redressed
by a favorable judicial decision, otherwise the case is moot.” United States v. Juvenile Male,
564
U.S. 932, 936 (2011) (citations omitted). A successful challenge to his term of custody would not
automatically result in an earlier end to his supervised release. United States v. Johnson,
529
U.S. 53, 54 (2000) (holding that excess prison time should not be “credited to the supervised
release term, reducing its length”). But “equitable considerations of great weight exist when an
individual is incarcerated beyond the proper expiration of his prison term,” and the district court
could use those equitable considerations to modify the conditions of his supervised release under
18 U.S.C. § 3583(e)(2). Johnson,
529 U.S. at 60. Under these circumstances, there is “an
ongoing collateral consequence that is traceable to the challenged portion of the sentence,” so the
case is not moot. See Dawson v. Scott,
50 F.3d 884, 886 n.2 (11th Cir. 1995); United States v.
Page,
69 F.3d 482, 487 n.4 (11th Cir. 1995). We therefore proceed to reach the merits.
2
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probation and a fine. The record includes an English-language “Defendant’s
Acknowledgement of Rights,” which states, “I can ask the Court to appoint an
attorney to represent me if I am indigent. Once I pay the application fee, I can
complete an application for a court appointed lawyer. If the court determines that I
meet the guidelines for indigence, it will appoint a lawyer to represent me.” The
form includes an attestation signed by the judge that “The Court finds further that
the Defendant knowingly, voluntarily and intelligently waives: (a) all his/her
Constitutional Rights enumerated above, [including] (b) The right to an
attorney . . . .”
Anaya argues that there was no evidence in the records of those pleas that he
was provided an interpreter. He also asserts that the translated language in the
waiver-of-rights forms used at those pleas was confusing, and the language
suggested that his right to court-appointed counsel had preconditions such as an
“application fee.” Thus, he insists, his pleas were uncounseled and therefore
presumptively void. In his reply brief, he argues for the first time that even if we
determine that harmless error occurred, remand is necessary for a finding as to
whether his criminal history score overrepresents his criminal history or whether a
downward variance would be appropriate.
We review questions of constitutional law de novo. United States v.
Acuna-Reyna,
677 F.3d 1282, 1284 (11th Cir. 2012). District courts have discretion
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to review the constitutional validity of a prior conviction for purposes of
determining a defendant’s criminal history score if the defendant “sufficiently
asserts facts that show that the prior conviction is presumptively void,” but such
cases “are small in number” and may be limited to cases of uncounseled
convictions. United States v. Roman,
989 F.2d 1117, 1120 (11th Cir. 1993) (en
banc) (quotation marks omitted). However, a conviction obtained following a
defendant’s knowing, intelligent, and voluntary waiver of his right to counsel is not
presumptively void. United States v. Jackson,
57 F.3d 1012, 1019 (11th Cir. 1995).
The law ordinarily considers a waiver knowing, intelligent, and voluntary if the
defendant fully understands the nature of the right and how it would likely apply in
the circumstances, even if the defendant does not know the specific consequences
of invoking it. Iowa v. Tovar,
541 U.S. 77, 92 (2004). In a collateral attack on an
uncounseled conviction, it is the defendant’s burden to prove that he did not
competently and intelligently waive that right.
Id.
When a defendant has demonstrated a prior conviction is presumptively
void, the appropriate remedy is to vacate the invalid portion of the sentence rather
than to vacate the conviction itself or any constitutionally inoffensive portions of
the sentence. Acuna-Reyna,
677 F.3d at 1284–85 (adopting the principle that
“when a sentence is imposed in violation of a defendant’s Sixth Amendment right
to counsel, the proper remedy is to vacate that portion of the sentence offensive to
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the Sixth Amendment without doing harm to the defendant’s conviction or the
remaining, constitutionally inoffensive, portions of his sentence”).
“Any error, defect, irregularity, or variance that does not affect substantial
rights must be disregarded.” Fed. R. Crim. P. 52(a). This harmless error analysis
applies to sentencing cases, and remand is unnecessary where we conclude, on the
record as a whole, that the error was harmless. Williams v. United States,
503 U.S.
193, 202–04 (1992). We may affirm the decision of the district court on any
ground supported by the record. United States v. Campa,
529 F.3d 980, 998 (11th
Cir. 2008).
Here, Anaya-Plascencia fails to carry his burden of alleging sufficient facts
to show that his waiver was not knowing, intelligent, or voluntary. Specifically,
despite offering arguments and interpretations of the limited record available, he
does not assert that a translator was not provided, that he did not understand the
right-to-counsel clause in the Spanish-language waiver-of-rights form, that the
Spanish-language waiver-of-rights form led him to believe he would not be able to
receive counsel, or that the judges relied solely on the forms to advise him of his
right to counsel.
Even if the pleas were presumptively void, however, the remedy in that
situation would be vacatur of the confinement and probationary portions of the
sentence rather than of the conviction as a whole. Because the convictions and
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fines from those pleas would still count toward his criminal history score, his
criminal history score would not change. Accordingly, we conclude that any error
was harmless.
Although Anaya-Plascencia urges us to remand for factfinding as to whether,
in light of any vacatur, his criminal history score overrepresents his criminal
history or for finding whether a downward variance would be warranted, he
abandoned that argument by failing to raise it in his initial brief. Where an
appellant fails to offer argument on an issue in his initial brief, even if he raises it
in a reply brief, it is abandoned. United States v. Curtis,
380 F.3d 1308, 1310 (11th
Cir. 2004).
AFFIRMED.
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