United States v. Ramirez-Perez , 132 F. App'x 558 ( 2005 )

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.
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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
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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this opinion should not be published and is not precedent except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).