IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50814
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OVIEDO MIRANDA-ORDONEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
(01-CR-556-ALL-DB)
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March 27, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Oviedo Miranda-Ordonez has appealed his
sentence following his conviction for being an alien found
illegally in the United States following deportation in violation
of 8 U.S.C. § 1326. Miranda contends that the homicide conviction
that resulted in his increased sentence under 8 U.S.C. § 1326(b)(2)
was an element of the offense that should have been alleged in the
indictment. Miranda concedes that this argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000),
cert. denied, 531 U.S. 1202 (2001). He nevertheless seeks to
preserve the issue for Supreme Court review in light of the
decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).
Miranda also contends that the homicide conviction, rendered
by a court in Mexico, was not reliable and, accordingly, should not
have been considered in imposing the 8 U.S.C. § 1326(b)(2)
enhancement. See U.S.S.G. § 2L1.2(b)(1)(A). "[A] presentence
report generally bears sufficient indicia of reliability to be
considered as evidence by the trial court in making the factual
determinations required by the Guidelines." United States v.
Robins, 978 F.2d 881, 889 (5th Cir. 1992). A defendant challenging
the findings in the PSR has the burden of demonstrating that the
information in the PSR is "materially untrue, inaccurate, or
unreliable." United States v. Angulo, 927 F.2d 202, 205 (5th Cir.
1991). The probation officer's statement, in determining Miranda's
criminal history score, that she was "[u]nable to establish legal
representation" is not tantamount to a finding that Miranda was not
assisted by counsel. The district court did not err in finding that
the Mexican homicide conviction was an "aggravated felony" for
purposes of 8 U.S.C. § 1326(b)(2) and U.S.S.G. § 2L1.2(b)(1)(A)
(2000).
Miranda’s sentence is
AFFIRMED.