United States v. Jorge Luis Alicea

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-17545
Non-Argument Calendar
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D.C. Docket No. 8:15-cr-00520-RAL-AEP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE LUIS ALICEA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(November 9, 2017)
Before ED CARNES, Chief Judge, TJOFLAT, and WILLIAM PRYOR, Circuit
Judges.
PER CURIAM:
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Jorge Luis Alicea pleaded guilty to three counts of distributing controlled
substances, 21 U.S.C. § 841(a)(1) and (b)(1)(c), one count of possessing with
intent to distribute controlled substances, id., and one count of being a felon in
possession of a firearm, 18 U.S.C. § 922(g). Alicea contends that the court erred in
determining his base offense level and in calculating his criminal history score.
The district court determined that Alicea’s base offense level was 20 because
he committed the § 922(g) offense after previously being convicted of a controlled
substance offense. U.S.S.G. § 2K2.1(a)(4)(A). Alicea argues that the government
did not prove that he was convicted of a controlled substance offense. We review
the district court’s factual findings for clear error. United States v. Robertson, 493
F.3d 1322, 1329–30 (11th Cir. 2007). A finding is clearly erroneous where, after
reviewing all the evidence, we are “left with the definite and firm conviction that a
mistake has been committed.” Id. at 1330.
The presentence investigation report states that in 2006 Alicea was
convicted of the criminal sale of a controlled substance (heroin) on school grounds.
Alicea objected to the PSR because, according to him, there was insufficient
evidence to support the fact of that conviction. In response, the probation officer
produced a certificate of disposition from the “Supreme Court of the State of New
York, Bronx County,” signed by the court clerk, stating:
I hereby certify that it appears from an examination of the records on
file in this office that on 08/14/2006 the above named defendant was
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convicted of the crime(s) below before Justice Davidowitz, Edward
then a justice of this court. CRIMINAL SALE CONTOL [sic] SUB –
SCHOOL GROUNDS PL 220.44 02 BF (HEROIN).
The “above named defendant” is identified on the certificate as “Alicea, Jorge.”
Alicea acknowledges that the government need only prove the fact of his
conviction by a preponderance of the evidence, see United States v. Rodriguez,
398 F.3d 1291, 1296 (11th Cir. 2005), and that such proof need not be admissible,
U.S.S.G. § 6A1.3(a). Yet he asserts that the certificate is insufficient to prove the
fact of his conviction because of its “dubious wording,” because it is signed “by an
unidentified court clerk,” and because it lists a birthdate of 4/23/86 instead of
3/24/86.1
Under New York law, “[a] certificate issued by a criminal court, or the clerk
thereof, certifying that a judgment of conviction against a designated defendant has
been entered in such court, constitutes presumptive evidence of the facts stated in
such certificate.” N.Y. Crim. Proc. Law § 60.60(1). Although we have not
addressed whether a New York certificate of disposition is sufficient to establish
the fact of a defendant’s prior conviction, the Second and Fifth Circuits have held
as much. See United States v. Green, 480 F.3d 627, 632 (2d Cir. 2007) (“[A]
certificate [of disposition] . . . constitutes presumptive evidence of the facts stated
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Alicea defeats his assertion that the birthdate discrepancy suggests the certificate
“pertains to the wrong individual” by later acknowledging that he “did not dispute that he was
the defendant in that particular case.” And Alicea’s assertion that the certificate is signed “by an
unidentified court clerk” fails. Although the court clerk’s name is not printed on the certificate,
the certificate is signed, and the title “court clerk” appears beneath the signature line.
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in such certificate.”) (emphasis omitted) (quoting N.Y. Crim. Proc. Law
§ 60.60(1)); United States v. Neri-Hernandes, 504 F.3d 587, 592 (5th Cir. 2007)
(“[A] Certificate of Disposition is admissible to determine the nature of a prior
conviction and has sufficient indicia of reliability for the court to rely on it to
establish this fact.”).
Given that persuasive authority, we are not “left with the definite and firm
conviction” that the district court erred by relying on the certificate of disposition
to find that Alicea had been convicted of a controlled substance offense. See
Robertson, 493 F.3d at 1329–30. As a result, the district court did not clearly err in
applying a base offense level of 20. U.S.S.G. § 2K2.1(a)(4)(A).
Alicea also contends that the district court erred in calculating his criminal
history score. He argues that the government failed to provide reliable evidence to
prove his three prior New York convictions for the sale of a controlled substance
on school grounds, misdemeanor possession of a controlled substance, and
misdemeanor possession of marijuana. Had the district court disregarded those
convictions, Alicea asserts, he would have received three fewer criminal history
points and his criminal history category would have been one category lower. As
noted earlier, we review only for clear error the district court’s factual
determinations. See Robertson, 493 F.3d at 1329–30.
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We have already explained that the district court did not clearly err by
finding that Alicea was convicted of selling heroin on school grounds. Nor did it
err with respect to the other two New York convictions. The district court
accepted the probation officer’s undisputed notation that both convictions bore an
identification number identical to the one in Alicea’s National Crime Information
Center report. And although the arrests in those cases were made under the names
George Alicea and Joshua Alicea, the NCIC report indicates that those names are
Alicea’s known aliases. Given that evidence, the district court did not clearly err
by finding that Alicea had been convicted of those offenses.
Alternatively, even if the district court did err with respect to those New
York convictions, any such error was harmless. See United States v. Monzo, 852
F.3d 1343, 1351 (11th Cir. 2017). Section 4A1.1(c) of the Guidelines provides
that a defendant receives one criminal history point for each prior conviction that
does not receive criminal history points under either § 4A1.1(a) or (b). A
defendant may receive no more than four points under § 4A1.1(c). Alicea had six
qualifying convictions under § 4A1.1(c): the three New York convictions
discussed above and three Florida convictions that he does not challenge on appeal.
Consistent with § 4A.1(c), Alicea received only four criminal history points for
those convictions. Even excluding the two points assessed for the New York
misdemeanors, Alicea’s criminal history score would remain the same — he would
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still have four qualifying convictions under § 4A1.1(c), each yielding one criminal
history point. For that reason, any error with respect to the two contested New
York convictions was harmless. See Monzo, 852 F.3d at 1351.
AFFIRMED.
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