FILED
NOT FOR PUBLICATION JUN 19 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10346
Plaintiff - Appellee, D.C. No. 3:10-cr-00087-ECR-
VPC-1
v.
JUSTIN ALLAN RICHARDSON, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Jr., Senior District Judge, Presiding
Argued and Submitted April 16, 2012
San Francisco, California
Submission Vacated May 4, 2012
Resubmitted June 11, 2014
Before: REINHARDT and MURGUIA, Circuit Judges, and EZRA, District
Judge.**
In a published opinion filed herewith, we resolve Richardson’s constitutional
challenges to the Sex Offender Registration and Notification Act. Here, we resolve
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David A. Ezra, District Judge for the U.S. District
Court for the District of Hawaii, sitting by designation.
his challenge to his sentence. Richardson argues that the district court should not
have assigned him one criminal history point for his 2000 misdemeanor conviction
because he did not have counsel during the proceeding and the conviction resulted
in a sentence of time served.
The Sixth Amendment provides that an indigent criminal defendant may not
be sentenced to a term of imprisonment1 without the assistance of appointed
counsel. Scott v. Illinois, 440 U.S. 367, 374 (1979). However, “once the
government establishes the fact of a conviction, the burden rests on the defendant
to show that the conviction was unconstitutional.” United States v. Wahid, 614
F.3d 1009, 1017 (9th Cir. 2010) (citing United States v. Newman, 912 F.2d 1119,
1121 (9th Cir. 1990)). “A defendant cannot carry this burden ‘merely by pointing
to a silent or ambiguous record.’” United States v. Dominguez, 316 F.3d 1054,
1056 (9th Cir. 2003) (quoting United States v. Mulloy, 3 F.3d 1337, 1339 (9th Cir.
1993)).
The Government established the fact of Richardson’s conviction. In contrast,
Richardson presented no evidence demonstrating that he did not make a knowing
and intentional waiver of his right to counsel or that his conviction was otherwise
1
A sentence of time served constitutes a sentence of actual imprisonment.
Cf. Arreguin-Moreno v. Mukasey, 511 F.3d 1229, 1230 (9th Cir. 2008).
2
unconstitutional. Because Richardson has failed to overcome the presumption of
validity accorded to his 2000 conviction, we conclude the district court did not err
in assigning Richardson one criminal history point for the 2000 misdemeanor
conviction.
AFFIRMED
3