United States v. Ramirez-Perez ( 2005 )


Menu:
  •                                                        United States Court of Appeals
                                                                    Fifth Circuit
                                                                   F I L E D
                   IN THE UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT                     June 1, 2005
    
                                                                Charles R. Fulbruge III
                                                                        Clerk
                                 No. 04-40855
                               Summary Calendar
    
    
    UNITED STATES OF AMERICA,
    
                                          Plaintiff-Appellee,
    
    versus
    
    RODOLFO RAMIREZ-PEREZ,
    
                                          Defendant-Appellant.
    
    
    
                               Consolidated with
                                  No. 04-40909
    
    
    UNITED STATES OF AMERICA,
    
                                          Plaintiff-Appellee,
    
    versus
    
    ROLANDO RODRIGUEZ-PINON,
    
                                          Defendant-Appellant.
    
                           --------------------
              Appeals from the United States District Court
                    for the Southern District of Texas
                            USDC No. 1:02-M-714
                         USDC No. 1:04-CR-137-ALL
                           --------------------
    
    Before DAVIS, SMITH and DENNIS, Circuit Judges.
    
    PER CURIAM:*
    
    
         *
           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    this opinion should not be published and is not precedent except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.
                                No. 04-40855
                              c/w No. 04-40909
                                     -2-
    
         Rolando Rodriguez-Pinon, also known as Rodolfo Ramirez-Perez
    
    (Ramirez) was convicted in 2002 of unlawfully being present in
    
    the United States.    He was sentenced to six months of
    
    imprisonment and was placed on three years of probation with the
    
    condition that he not reenter the United States illegally.    In
    
    2004, he pleaded guilty to unlawful reentry in violation of 18
    
    U.S.C. § 1326(a), (b).    The Government also sought to revoke his
    
    probation.
    
         At sentencing, Ramirez’s counsel informed the district court
    
    that Ramirez wanted to represent himself.    The district court
    
    made no inquiry as to the request and proceeded to conduct the
    
    sentencing hearing.    Immediately after sentencing Ramirez for his
    
    unlawful reentry, the district court conducted a probation
    
    revocation hearing.    Ramirez contends on appeal that the district
    
    court denied him his Sixth Amendment right to represent himself
    
    during the sentencing and probation revocation proceedings.    The
    
    Government counters that, by failing to renew his request and by
    
    allowing his counsel to represent him in the sentencing and
    
    revocation hearings, Ramirez waived his right to represent
    
    himself.
    
         As a threshold matter, we hold that, although Ramirez had a
    
    Sixth Amendment right to represent himself at sentencing, see
    
    United States v. Davis, 
    285 F.3d 378
    , 384 (5th Cir. 2002), he had
    
    no such right with respect to the probation revocation
                               No. 04-40855
                             c/w No. 04-40909
                                    -3-
    
    proceeding.   See Gagnon v. Scarpelli, 
    411 U.S. 778
    , 781 (1973);
    
    Loud v. Estelle, 
    556 F.2d 1326
    , 1329 (5th Cir. 1977).
    
         We next hold that Ramirez was denied the right to represent
    
    himself at sentencing.   Ramirez’s counsel clearly and
    
    unequivocally informed the district court that Ramirez wished to
    
    represent himself.   See Faretta v. California, 
    422 U.S. 806
    , 835
    
    (1975).   Accordingly, we VACATE the sentence imposed for unlawful
    
    reentry (Appeal No. 04-40909) and REMAND for a new sentencing
    
    hearing at which the district court should conduct a hearing
    
    pursuant to Faretta in order to determine whether Ramirez’s
    
    waiver of his right to counsel is knowing and intelligent,
    
    employing the analysis set forth in United States v. Davis, 
    269 F.3d 514
    , 518-20 (5th Cir. 2001).
    
         We AFFIRM the judgment revoking Ramirez’s probation (Appeal
    
    No. 04-40855).
    
         In light of the remand for resentencing, we do not reach
    
    Ramirez’s claim that, pursuant to United States v. Booker, 
    125 S. Ct. 738
     (2005), his sentence violated the Sixth Amendment.
    
         SENTENCE VACATED AND CASE REMANDED (No. 04-40909); AFFIRMED
    
    (No. 04-40855).