United States v. Serna

United States Court of Appeals
Fifth Circuit
F I L E D
February 11, 2004
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-11190
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
NORMA SERNA,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 4:02-CR-29-ALL-BE
_________________________
Before JONES, MAGILL,* AND SMITH,
Circuit Judges.
PER CURIAM:**
* Circuit Judge of the United States Court of
Appeals for the Eighth Circuit, sitting by desig-
nation.
** Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

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2
Norma Serna was arrested, then arraigned
the next day before a federal magistrate judge.
She was charged with knowingly and willfully
aiding and abetting the illegal entry of Mexican
aliens by attempting to transport them.
Serna pleaded guilty without assistance of
counsel. The court explained the nature of the
charges against her and the consequences of
conviction. Without explicating the Sixth
Amendment right at length, the court asked
Serna whether she wished to proceed without
counsel, pursuant to a waiver of right to
counsel that she previously had signed. She
responded in the affirmative, and the court was
satisfied that her waiver was knowing and in-
telligent. She pleaded guilty and was
sentenced to twelve months’ probation.
Serna violated the terms of her probation.
After a parole revocation hearing at which she
contended that she had been deprived of her
Sixth Amendment rights at the time of her
plea, the district court revoked her probation
and sentenced her to four months’
imprisonment.
Serna appeals the revocation of parole, ar-
guing that her attempted waiver of counsel
was not “knowing and intelligent,” and ac-
cordingly that her Sixth Amendment rights
were violated. Imprisonment may not be im-
posed on a defendant who has not knowingly
and voluntarily waived his right to counsel.
See Alabama v. Shelton, 535 U.S. 654, 662
(2002); Argersinger v. Hamilton, 407 U.S. 25,
37 (1972). We review constitutional
challenges de novo. See United States v.
Joseph, 333 F.3d 587, 589 (5th Cir.), cert.
denied, 124 S. Ct. 446 (2003).
The government contends that Serna’s
present challenge to the validity of her waiver
cannot be raised on direct appeal from a
revocation hearing, but must be collaterally
attacked in a 28 U.S.C. § 2255 proceeding.
Although this circuit has yet to reach this
issue,1 we do not address it here, because,
even assuming, arguendo, that a direct appeal
is a proper vehicle for Serna’s challenge, the
record shows that the waiver of her Sixth
Amendment right to counsel was valid, so her
case fails on the merits.
We conclude, after a review of the record,
that Serna knowingly and intelligently waived
counsel at the time she pleaded guilty. The
court informed her of the nature of the charges
against her and the consequences of a guilty
plea. She signed a consent, acknowledging
that she agreed to waiver her right to the as-
sistance of counsel. We are especially mindful
that she failed to allege that she did not in fact
understand her right to appointed counsel.
Serna therefore validly waived her Sixth
Amendment rights. See Argersinger, 407 U.S.
at 37.
AFFIRMED.
1 In United States v. Francischine, 512 F.2d
827 (5th Cir. 1975), we prohibited the challenge of
underlying convictions at a parole revocation
hearing. Serna challenges only her imprisonment.

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