United States v. Zuniga-Chavez

F I L E D
United States Court of Appeals
Tenth Circuit

September 27, 2006
PU BL ISH
Elisabeth A. Shumaker
UNITED STATES COURT O F APPEALS Clerk of Court

TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff - Appellee,

v. No. 04-2293

LEOPOLD O ZU NIGA -CH AV EZ,

Defendant - Appellant.

Appeal from the United States District Court
for the District of New M exico
(D.C. No. CR-04-940-JB)

Robert E. Kinney, Assistant Federal Public Defender (Kurt J. M ayer, Assistant
Federal Public Defender, with him on the briefs), Las Cruces, NM , for the
Defendant-Appellant.

Terri J. Abernathy, Assistant United States Attorney (David C. Iglesias, United
States Attorney, with her on the brief), Las Cruces, NM , for the Plaintiff-
Appellee.

Before M U RPH Y, Circuit Judge, M cW ILL IAM S and EBEL, Senior Circuit
Judges.

EBEL, Circuit Judge.
 Defendant Leopoldo Zuniga-Chavez pleaded guilty to unlawful reentry

after deportation. At sentencing, the district court relied on the government’s

proffered evidence of Defendant’s five prior California state criminal convictions

— a certified docket sheet, a certified copy of an “abstract judgment,” and court

case summaries — to raise Defendant’s offense level and criminal history. Based

on those calculations, the district court sentenced Defendant to thirty-seven

months’ imprisonment — the bottom end of the then-mandatory Sentencing

Guidelines range. The district court also proposed an identical “alternative

sentence” in case the Guidelines w ere found unconstitutional.

On appeal, Defendant claims that we must remand for resentencing due to

the Supreme Court’s intervening decision in United States v. Booker, 543 U.S.

220 (2005), because the district court applied the Sentencing Guidelines in a

mandatory fashion and did not explicitly state that it was considering the factors

in 18 U.S.C. § 3553(a). Defendant also claims, citing the Supreme Court’s

decision in Shepard v. United States, 544 U.S. 13 (2005), that the documents

purporting to prove his prior convictions were not sufficiently reliable. W e reject

all of Defendant’s arguments and AFFIRM his sentence.

I. BACKGROUND

On M ay 19, 2004, Zuniga-Chavez pleaded guilty (without a plea

agreement) to one count of unlawful reentry by a deported alien. See 8 U.S.C.

§ 1326(a)(1)-(2). The Presentence Report (“PSR”) recommended a twelve-level

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enhancement to Defendant’s base offense level based on his prior felony

conviction for possession of marijuana for sale. 1 The PSR also allocated

Defendant a total of eight criminal history points — two points each for: a 1993

DW I conviction, a 1994 conviction for “Battery, Violation of Order of

Protection,” a 1996 conviction for “Possession Bad Checks/M oney Order,” and a

1996 conviction for receiving stolen property. All of Defendant’s prior

convictions, including the drug conviction, took place in California state court.

Under the then-mandatory Sentencing Guidelines, the applicable sentencing range

for Defendant’s offense level and criminal history was thirty-seven to forty-six

months in prison.

Defendant objected to the PSR, arguing that (1) he should not receive the

offense level increase or the eight criminal history points because the government

had not sufficiently proven his prior convictions; (2) the government should have

to prove to a jury beyond a reasonable doubt that his prior drug conviction was

for an aggravated felony; and (3) the sentencing guidelines are unconstitutional as

a result of Blakely v. W ashington, 542 U.S. 296 (2004).

At Defendant’s October 2004 sentencing hearing, the government

introduced five exhibits relating to Defendant’s prior California convictions: a

1
“If the defendant previously was deported, or unlawfully remained in the
United States, after . . . a conviction for a felony drug trafficking offense for
which the sentence imposed was 13 months or less, increase by 12 levels . . . .”
U.S.S.G. § 2L1.2(b)(1)(B).

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certified copy of an “abstract of judgment” relating to his conviction for

possession of marijuana for sale, a certified copy of the docket sheet relating to

Defendant’s conviction for receiving stolen property, and court case summaries of

Defendant’s three other convictions. The district court overruled D efendant’s

objection to the introduction and sufficiency of this evidence and concluded that

it established the prior convictions by a preponderance of the evidence. The court

also overruled Defendant’s other objections to the PSR. 2

The district court then sentenced Defendant to thirty-seven months’

imprisonment, the bottom end of the Guidelines range. The court further stated:

“Should the [G]uidelines be declared unconstitutional, the Court will propose an

alternative sentence. The alternative sentence . . . would also be 37 months w ith

all other conditions being the same.” Defendant’s attorney objected to the

alternative sentence “because if the guidelines were declared unconstitutional, I

believe that the procedures for sentencing would actually be much different,

where we would actually have evidentiary hearings and the court could consider

much more evidence than it actually has considered.” The court overruled this

objection, and Defendant now appeals.

2
The district court memorialized its holdings in a published M emorandum
Opinion. See United States v. Zuniga-Chavez, 376 F. Supp. 2d 1163 (D .N.M .
2004).

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 II. D ISC USSIO N

Defendant advances two main arguments on appeal. First, he argues that

we should remand for resentencing based on the Supreme Court’s intervening

decision in Booker, 543 U.S. 220. Second, he claims that under Shepard, 544

U.S. 13, there was insufficient evidence to prove the prior California convictions

and thus that they should not have been used to enhance his sentence. W e reject

his arguments and affirm the sentence imposed by the district court.

A. Booker Error

1. Standard of review

Defendant claims only “non-constitutional Booker error.” See United

States v. Gonzalez-Huerta, 403 F.3d 727, 731–32 (10th Cir. 2005) (en banc)

(describing “non-constitutional Booker error” as “applying the Guidelines in a

mandatory fashion, as opposed to a discretionary fashion”). The United States

correctly concedes that Defendant preserved this error by lodging a Blakely

objection at sentencing. W e therefore review for harmless error. United States v.

Labastida-Segura, 396 F.3d 1140, 1142–43 (10th Cir. 2005). A non-constitutional

Booker error is harmless w hen it does not affect a defendant’s substantial rights

by “affect[ing] the district court’s selection of the sentence imposed.” Id. at 1143

(quoting W illiams v. United States, 503 U.S. 193, 203 (1992)).

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 2. Analysis

Defendant makes a two-pronged Booker argument on appeal. First, he

contends that he must be resentenced because, as we recognized in Labastida-

Segura,

where [the sentence] was already at the bottom of the guidelines range,
to say that the district court would have imposed the same sentence
given the new legal landscape (even after consulting the Sentencing
Guidelines in an advisory capacity) places us in the zone of speculation
and conjecture— we simply do not know what the district court w ould
have done after hearing from the parties.

396 F.3d at 1143. Defendant argues that this language shows that resentencing is

required whenever a district court, applying the G uidelines in a m andatory

fashion, imposes a sentence at the bottom of the Guidelines range — even if the

district court specifies an identical alternative sentence.

This argument is easily dismissed. After the briefs in this case were filed,

we held in United States v. Corchado, 427 F.3d 815 (10th Cir. 2005), that

[n]on-constitutional B ooker errors . . . warrant a remand for
resentencing where we are unable to say, without undue speculation,
that the district court would have imposed the same sentence on
remand. Here, we are not required to engage in any speculation, undue
or otherwise, because the district court explained exactly what it would
do if the G uidelines were found unconstitutional. . . . Because w e are
confident that the district court would impose the sam e sentence upon
remand, we affirm the district court’s decision.

Id. at 821 (citations omitted). Similarly, in this case we need not speculate about

what the district court would have done absent mandatory application of the

Guidelines — the court specifically stated that it would impose the same sentence

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if the Guidelines were found unconstitutional. Therefore, the district court’s error

was harmless.

Second, Defendant argues that Booker requires that he be resentenced

because the district court failed to “explicitly state that it was applying or

considering all of the factors of [18 U.S.C.] § 3553(a).” 3 This argument is also

unavailing. In Corchado, we rejected this requirement, stating:

Although the district court did not specify that it was applying the
sentencing methodology suggested in Booker — namely consultation of
the advisory Guidelines and the factors listed in 18 U.S.C. § 3553(a) —
we know that the court consulted the Guidelines and adopted the
findings in the PSR, which analyzed several of the factors set forth in
18 U.S.C. § 3553(a).

427 F.3d at 821. Similarly, in United States v. Rines we concluded that it was not

error for a district court to fail to “march through” the § 3553(a) factors. 419

F.3d 1104, 1107 (10th Cir. 2005). W e stated:

[W ]e have never imposed such a requirement. . . . [T]he sentencing
court is not required to consider individually each factor listed in
§ 3553(a) before issuing a sentence. M oreover, we do not demand that
the district court recite any magic w ords to show that it fulfilled its
responsibility to be mindful of the factors that Congress has instructed
it to consider.

Id. (quotations omitted).

3
Section 3553(a) states that in calculating a sentence, the sentencing court
“shall consider,” inter alia, the nature of the offense, the need for deterrence, the
need to protect the public, the kinds of sentences available, the need to avoid
sentence disparity, and the need to provide restitution to victims.

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 As in Corchado, the district court in this case consulted the Guidelines and

“spent a considerable amount of time reviewing the presentence report and talking

to Probation as well as taking into account the comments here at the hearing, as

well as reviewing all the documentation that was submitted by Probation.” Even

though the district court did not “march through § 3553(a)’s sentencing factors,”

Rines, 419 F.3d at 1107, we have unmistakably rejected that as a requirement.

Therefore, we also reject Defendant’s second argument for resentencing based on

Booker error.

B. Proof of Prior Convictions

Next, Defendant contends that the government “failed to prove the

existence of the alleged California convictions with sufficiently reliable evidence”

and that he therefore “should be resentenced without the convictions being

considered when computing his sentencing guideline range.” W e conclude,

however, that the government has met its burden and therefore affirm the district

court’s decision.

1. Standard of review

“W e review the district court’s factual findings . . . under the clearly

erroneous standard, and review de novo the district court’s legal interpretation of

the Sentencing Guidelines.” United States v. Hawley, 93 F.3d 682, 686–87 (10th

Cir. 1996). “The government must establish the fact of a prior conviction by a

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preponderance of the evidence.” United States v. Simpson, 94 F.3d 1373, 1381

(10th Cir. 1996).

2. Analysis

The Sentencing Guidelines M anual states:

W hen any factor im portant to the sentencing determination is
reasonably in dispute, the parties shall be given an adequate opportunity
to present information to the court regarding that factor. In resolving
any dispute concerning a factor important to the sentencing
determination, the court may consider relevant information w ithout
regard to its admissibility under the rules of evidence applicable at trial,
provided that the information has sufficient indicia of reliability to
support its probable accuracy.

U.S.S.G. § 6A1.3(a); see also United States v. Beaulieu, 893 F.2d 1177, 1180

(10th Cir. 1990) (“The Guidelines expressly allow the use of any reliable

information.”). Thus, the question is whether the evidence submitted to prove

Defendant’s prior convictions has “sufficient indicia of reliability to support its

probable accuracy.”

Defendant asserts that the materials used as evidence of his California

convictions “cannot be considered ‘conclusive’ judicial records of the prior

conviction because they are clerical documents.” H e argues that instead, “[t]o

satisfy due process . . . , either the G overnment or the probation officer must

present a judgment of conviction or equivalent document.” However, as the

government points out, we have in the past accepted documents other than

judgments of conviction, or their equivalent, as sufficient evidence of prior

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conviction. In U nited States v. Simpson, the only evidence of the defendant’s

conviction was a “certified docket sheet” that the probation officer had obtained

from the state court. 94 F.3d at 1381. W e stated: “W e believe that a certified

docket sheet is adequate, absent some contradictory evidence by the defendant, to

establish the existence of a prior conviction for [purposes of enhancing a sentence

under the Guidelines.]” Id.

Similarly, in U nited States v. Johnson, we addressed a defendant’s claim

that there was not sufficient evidence to establish one of his three prior felony

convictions. 973 F.2d 857, 861 (10th Cir. 1992). As to that conviction, the

government had submitted only “certified copies of journal entries indicating . . .

revocation of probation based on [the felony in question.]” Id. However, the

defendant “offered no proof that contradicted the government’s evidence.” Id.

W e therefore held that “the journal entry revoking defendant’s probation based

upon the . . . conviction is sufficient to establish that such a conviction existed.”

Id. at 861–62.

Applying the holdings of Simpson and Johnson to the evidence before us, it

is clear that the certified docket sheet evidencing Defendant’s conviction for

receiving stolen property is proper evidence of that conviction. Similarly, the

certified copy of the abstract judgment suffices to prove Defendant’s conviction

for possession of marijuana for sale since, as the government points out, “[t]his

abstract contains as much, if not more, information than a docket sheet, including

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the charge, a record of the advice of rights and the guilty plea, and the sentence

imposed.” W e conclude that it is sufficiently reliable to be used for enhancing

Defendant’s sentence.

Defendant argues extensively that the recent Supreme Court decision in

Shepard v. United States, 544 U.S. 13 (2005), undermines our holdings in

Simpson and Johnson and requires that “the fact of prior conviction must be

proven by conclusive judicial records,” which, according to Defendant, includes

only the items listed in Shepard: “jury instructions, or bench trial findings and

rulings, or (in a pleaded case) in the defendant’s own admissions or accepted

findings of fact confirming the factual basis for a valid plea.” Shepard, 544 U.S.

at 25.

The Supreme Court in Shepard, however, addressed an entirely different

question: what evidence could be used to show that a plea of guilty to burglary

defined by a nongeneric burglary statute “necessarily admitted elements of the

generic offense.” Id. at 26. The court did not address what documents can be

used to prove the fact of a prior conviction, but was concerned only with what

documents can be used to prove the facts underlying a conviction where the

elements of the state crime do not precisely mirror the federal definition.

Therefore, we do not find Shepard controlling on the issue presented in this case. 4

4
Although Defendant argues that “[t]he documents are clerical documents
subject to mistake,” w e do not look at whether the evidence was infallible, only
(continued...)

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 The remaining convictions, which were evidenced only by case summaries,

are arguably different since the evidence was not certified by the California state

court. However, reliability — not certification — is the key for determining the

sufficiency of evidence of a prior conviction. W e have previously concluded in a

number of unpublished opinions that uncertified documents may be sufficient to

support a sentence enhancement. See United States v. Esparza-Varela, 106 F.

App’x 1, 2, 4 (10th Cir. 2004) (unpublished) (accepting computer printouts that,

“though the parties do not refer to them as docket sheets, contain similar

information to that found on a docket sheet” and concluding that “[the defendant]

cites no authority . . . and we have found none, requiring such documents to be

certified in order to be found reliable”); United States v. M cGee, No. 99-2054,

1999 W L 704288, at *1 (10th Cir. Sept. 10, 1999) (unpublished) (rejecting the

defendant’s “suggest[ion] that the docket printouts were unreliable in part because

they were not certified”); see also United States v. Chavarria, No. 99-1444, 2000

W L 192830, at *1 (10th Cir. Feb. 17, 2000) (unpublished) (stating, without

mention of certification, that “[p]rior convictions can be proven for sentencing

purposes through collateral sources such as a docket sheet”).

Several of our sister circuits have come to the same conclusion in published

cases. See United States v. Stobaugh, 420 F.3d 796, 803 (8th Cir. 2005) (“W hile

4
(...continued)
whether it had “sufficient indicia of reliability to support its probable accuracy.”
U.S.S.G. § 6A1.3(a).

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certified records are generally sufficient to prove prior convictions, they are not

necessary.”) (citation omitted); United States v. Chavaria-Angel, 323 F.3d 1172,

1176 (9th Cir. 2003) (“W e . . . reject Defendant’s invitation to create a per se or

absolute rule requiring the use of certified records. W e recognize that the use of

certified records is an effective, efficient, and perhaps even preferable method of

proving the circumstances underlying a prior conviction, but we find nothing in

the statute, the case law, or logic that would require it.”); see also United States v.

Acosta, 287 F.3d 1034, 1038 (11th Cir. 2002) (concluding that “[a]lthough the

government could not produce a certified copy of the adjudication because

Acosta’s records were sealed,” the government had proved his prior conviction

beyond a reasonable doubt because “the uncertified copy the government did

introduce was identical”); cf. United States v. Fordham, 187 F.3d 344, 347 (3d

Cir. 1999) (“To establish reliability of [a] foreign conviction, certified copies of

the conviction albeit desirable are not required for the sentencing court’s

determination as to whether an upward adjustment is warranted.”). W e agree with

these cases, including our unpublished decisions, and conclude that, although

certainly preferable, certification is not a prerequisite to reliability. A case

summary obtained from a state court and prepared by a clerk — even if not

certified by that court — may be sufficiently reliable evidence of conviction for

purposes of enhancing a federal sentence w here the defendant fails to put forward

any persuasive contradictory evidence.

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 Because D efendant did not argue that any persuasive contradictory

evidence tended to show that he was not convicted of the crimes used to enhance

his sentence, we conclude that the government has met its burden of showing the

prior convictions by a preponderance of the evidence.

III. C ON CLU SIO N

For the foregoing reasons, we AFFIRM the sentence imposed by the district

court.

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