United States v. Esparza-Varela

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 10 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 03-2279
v. (D. New Mexico)
MARTIN ESPARZA-VARELA aka (D.C. No. CR-03-984-JP)
Gene Zamora,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, Chief Judge, ANDERSON and BALDOCK , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the
*
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Martin Esparza-Varela pled guilty to one count of reentry into the United
States following deportation and following a prior conviction for an aggravated
felony, in violation of 8 U.S.C. § 1326(a)(1), (a)(2) and (b)(2). He was sentenced
to twenty-four months’ imprisonment, followed by two years of unsupervised
release. Mr. Esparza-Varela appeals his sentence, arguing the government failed
to provide sufficient reliable evidence of two prior convictions that were counted
in the calculation of his criminal history category. For the reasons discussed
below, we affirm.
BACKGROUND
Mr. Esparza-Varela was arrested at a United States Border Patrol
checkpoint near Las Cruces, New Mexico, on March 20, 2003, after a background
check revealed that he had been deported to Mexico on November 12, 2001,
following his conviction on a charge of attempted forgery, an aggravated felony
under 8 U.S.C. § 1101(a)(43). Without entering into a plea agreement, he pled
guilty to the sole charge brought against him, illegal reentry in violation of 8
U.S.C. § 1326(a)(1), (a)(2), and (b)(2).
The presentence report (“PSR”) prepared by the U.S. Probation Office
calculated a criminal history category of IV for Esparza-Varela, based in part on a
prior conviction for battery domestic violence in the municipal court of Las
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Vegas, Nevada, on January 2, 2001, and a prior conviction for battery in the Clark
County Justice Court in Las Vegas, Nevada, on February 15, 2001. Together with
the calculated offense level of 13, this yielded a sentencing range of twenty-four
to thirty months. Among the other details included in the PSR were the following
facts: that Esparza-Varela was born on August 14, 1978, in Ciudad Juarez,
Chihuahua, Mexico; that he lived in Las Vegas, Nevada, from 1991 to 2001; that
he married Bonnie Lenore Campos in Las Vegas in 1998; and that he has a tattoo
depicting the name “Bonnie” in Old English on his lower abdomen.
Esparza-Varela objected to the PSR’s inclusion of three criminal history
points based on the two battery convictions, arguing that the computer printouts
indicating the convictions were not reliable evidence. He argued the convictions
should therefore not be included in the criminal history calculation, and thus his
category should be reduced from IV to III, yielding a sentencing range of eighteen
to twenty-four months.
At the subsequent sentencing hearing, in response to Esparza-Varela’s
objection that he had not received copies of the probation officer’s evidence of
these two convictions, the court issued a brief continuance to allow the officer to
produce his evidence. In support of the first conviction, the officer submitted, in
his description, a “computer printout generated by the probation office in Las
Vegas, Nevada,” together with a police report of the arrest. Tr. of Sentencing
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Hr’g at 11, R. Vol. IV. The printout indicated the defendant, listed as “Esparza,
Martin,” had pled guilty as charged to battery domestic violence. The police
report had the same “event number” as the printout and recorded the arrestee’s
name as “Esparaza, Martin,” with a birth date of August 14, 1978. The report
further indicated the arrest arose out of a dispute between “Martin Esparaza” and
his wife, “Bonnie Campos.” In support of the second conviction, the officer
submitted a “computer generated court proceedings printout” from the database of
the Las Vegas municipal court, together with a police report of the arrest. Id.The printout indicated the defendant, listed as “Esparca, Martin,” entered a plea
of nolo contendere to a charge of battery domestic violence. The police report,
again having the same “event number” as the printout, indicated “Martin Esparca”
had been arrested following a dispute with his ex-wife, “Bonnie Campos,” that
Esparca’s real date of birth was August 14, 1978, and that Esparca had a tattoo of
“Bonn” on his abdomen.
Reviewing the documents on the bench, the court noted the near identity of
the names of the defendants in the Las Vegas convictions with Esparza-Varela,
and the identical dates of birth. The court asked “whether the defendant seeks to
present any evidence in contradiction of the conclusion that was suggested by the
probation officer.” Id. at 10. Esparza-Varela made proffers that he had no
recollection of the convictions. The court then made a finding that the two Las
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Vegas convictions “are supported by a preponderance of the evidence,” id. at 14,
and proceeded to sentence Esparza-Varela in accord with the PSR’s
recommendation.
On appeal, Esparza-Varela renews his argument that the evidence of the
two Las Vegas convictions was insufficiently reliable and that the government
failed to meet its burden of proof. He also argues he had no reasonable
opportunity to contest the probation officer’s evidence because it was not made
available to him prior to the sentencing hearing.
DISCUSSION
We review a district court’s factual findings at sentencing for clear error
and its interpretation of the Sentencing Guidelines de novo. United States v.
Simpson , 94 F.3d 1373, 1380 (10th Cir. 1996).
Here, we discern no error in the district court’s finding that Esparza-Varela
had two prior battery convictions in Las Vegas and its conclusion that these
convictions were properly included in Esparza-Varela’s criminal history
calculation. “At sentencing, the district court may rely on facts stated in the
presentence report unless the defendant has objected to them.” United States v.
Shinault , 147 F.3d 1266, 1277 (10th Cir. 1998). However, “[w]hen a defendant
objects to a fact in a presentence report, the government must prove that fact at a
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sentencing hearing by a preponderance of the evidence.” Id. at 1278; see also
United States v. Torres , 182 F.3d 1156, 1162 (10th Cir. 1999) (holding the
government must show, by a preponderance of the evidence, “whatever facts are
needed to justify adding additional criminal history points” (further quotation
omitted)). The evidence offered need not be admissible under the Federal Rules
of Evidence. Fed. R. Evid. 1101(d)(3). Nevertheless, it must have “sufficient
indicia of reliability to support its probable accuracy.” United States Sentencing
Commission, Guidelines Manual (“USSG”) §6A1.3(a) (Nov. 2002).
In this case, the evidence produced by the probation officer in response to
Esparza-Varela’s objection was sufficiently reliable. The computer printouts
from the databases of the Las Vegas municipal court and the U.S. probation office
in Las Vegas, though the parties do not refer to them as docket sheets, contain
similar information to that found on a docket sheet. They indicate the history of
court proceedings in both cases, one ending in a guilty plea and one ending in a
nolo contendere plea. The probation office’s assertion that the subject of these
printouts is Esparza-Varela is corroborated by factual details in the accompanying
police reports – the defendant’s name, his date of birth, his residence in Las
Vegas, the name of his wife or ex-wife, and the tattoo.
Esparza-Varela’s sole quibble with the reliability of these documents
appears to be that they are not certified and are therefore “of uncertain
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provenance,” lacking proof “that they are accurate copies of court or other official
records.” Appellant’s Br. at 13. He cites no authority, however, and we have
found none, requiring such documents to be certified in order to be found reliable.
See, e.g. , Simpson , 94 F.3d at 1381 (holding “a certified docket sheet is adequate,
absent some contradictory evidence by the defendant, to establish the existence of
a prior conviction for this sentencing purpose,” but not indicating certification
was necessary to the adequacy holding). The presence of supporting
documentation from government sources, despite its lack of certification, is
sufficient, we believe, to distinguish this case from United States v. Floyd , 343
F.3d 363 (5th Cir. 2003), cited by Esparza-Varela, where a district court’s
criminal history finding was overturned because “[t]he only evidence . . . from
which the district court could have concluded that [the defendant] had a prior
conviction was the unsworn statements of the probation officer,” and no
“supporting documentation evidencing [the] conviction[] was ever provided.” Id.
at 373. Compare Shinault , 147 F.3d at 1277-78 (upholding prior conviction
findings based on charging documents citing names other than the defendant’s,
together with the probation officer’s testimony that the names were aliases of the
defendant).
We conclude that the government met its burden of proof and reject
Esparza-Varela’s claim that the district court improperly shifted the burden to
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him. “Once the government had established the fact of [a] prior conviction, the
burden then shifted to [the defendant] to challenge its validity.” United States v.
Ortiz , 63 F.3d 952, 955 (10th Cir. 1995). We also reject Esparza-Varela’s claim
that he had insufficient opportunity to mount such a challenge because he did not
see the probation office’s documentation until the sentencing hearing. Esparza-
Varela was made aware of the alleged prior convictions when he received the
PSR. His written objections to the PSR indicate he knew about the alleged prior
convictions and that the probation office was relying on “a computer printout and
not . . . an actual copy of the judgment and conviction.” Attach. to Second
Addendum to PSR, R. Vol. II. After the documents were produced at the
sentencing hearing, the court gave Esparza-Varela an opportunity to contradict the
probation office’s claim, but Esparza-Varela offered no evidence indicating the
documentation was unreliable or the information contained therein was
inaccurate, nor does he suggest on appeal that such evidence exists. Although the
probation office should have provided the documents to the defense earlier, its
failure to do so does not, we think, warrant reversal under these circumstances.
Compare United States v. Wise , 990 F.2d 1545, 1549-50 (10th Cir. 1992) (holding
defendant’s due process rights were violated where the district court did not allow
the defendant to question the probation officer at the sentencing hearing regarding
the factual basis for his conclusions).
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We therefore uphold the district court’s criminal history calculation.
CONCLUSION
For the foregoing reasons, the district court’s sentence is AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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