United States v. Martinez , 71 F. App'x 764 ( 2003 )

MEMORANDUM ^**

Jose Martinez appeals the 211-month sentence imposed following his guilty plea conviction of possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1), possession of a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A), and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Martinez argues that the district court erred by including a conviction obtained without counsel in calculating his criminal history under the Sentencing Guidelines. We disagree. We have held that “[a] defendant must prove the invalidity of a pri- or conviction by a preponderance of the evidence^]” and that to carry this burden the defendant “must make an affirmative showing ... that the prior conviction is invalid[.]” United States v. Dominguez, 316 F.3d 1054, 1056-57 (9th Cir.2003) (internal quotations omitted). Here, Martinez argues that his waiver in a prior case was invalid, but cites no evidence in support of this contention. We conclude that, in these circumstances, he has failed to sustain his burden. Id.; United States v. Allen, 153 F.3d 1037, 1041 (9th Cir.1998).

Martinez also argues that the district court erred by considering the methamphetamine found in his car as relevant conduct under the Sentencing Guidelines. United States v. Fox, 189 F.3d 1115, 1118 (9th Cir.1999). We disagree. The preponderance of the evidence, including the information provided by the informant and the location of the drugs, supports the district court’s conclusion that the methamphetamine was relevant conduct for purposes of the Sentencing Guidelines. United States v. Asagba, 77 F.3d 324, 325-26 (9th Cir.1996) (district court’s factual findings must be supported by a preponderance of the evidence).

AFFIRMED.

2.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.