United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 5, 2006
Charles R. Fulbruge III
Clerk
No. 05-50222
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PABLO DERAS-RODRIGUEZ, also known
as Pablo Devas-Rodriguez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:04-CR-667-1
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Before KING, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Pablo Deras-Rodriguez (Deras) appeals his
guilty-plea conviction of illegal re-entry after deportation, for
which he received a 70-month sentence and a three-year term of
supervised release. Deras contends that the district court erred
in relying on disputed Massachusetts convictions to enhance his
offense level and his criminal history score. He argues that the
*
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this opinion should not be published and is not precedent except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.
district court misallocated the burden of proof by requiring him,
when objecting to the Presentence Report (PSR), to show that the
report of the convictions set forth in the PSR was in error. Deras
asks that the matter be remanded to the district court so that it
may apply the correct burden of proof.
“[T]he party seeking an adjustment in the sentence level must
establish the factual predicate justifying the adjustment.” United
States v. Alfaro, 919 F.2d 962, 965 (5th Cir. 1990). In
determining whether the government has carried its burden, the
district court may generally rely on any information contained in
the PSR that has sufficient indicia of reliability to support its
probable accuracy. See United States v. Vital, 68 F.3d 114, 120
(5th Cir. 1995). The defendant has the burden of demonstrating
that the facts contained in the PSR are inaccurate. United States
v. Lage, 183 F.3d 374, 383 (5th Cir. 1999). “In making fact
findings pursuant to the sentencing guidelines, a district court
need only be convinced by a preponderance of the evidence.” United
States v. McKinney, 53 F.3d 664, 677 (5th Cir. 1995).
We have reviewed the transcripts of the sentencing hearings as
well as the Massachusetts records submitted to prove Deras’s prior
convictions. We are satisfied that the district court correctly
allocated the burden of proof and that there was sufficient
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evidence to prove each of Deras’s challenged convictions.
See Alfaro, 919 F.2d at 965.
Deras asserts that the district court misinterpreted U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) in determining that his 1999 conviction of
assault and battery was a crime of violence warranting a 16-level
enhancement. As the district court determined, however, the
enhancement was also supported by Deras’s 1997 Massachusetts
assault conviction, which meets the definition of a crime of
violence. See United States v. Garza-Lopez, 410 F.3d 268, 273-74
(5th Cir.), cert. denied, 126 S. Ct. 298 (2005); Commonwealth v.
Gorassi, 733 N.E.2d 106, 110 (Mass. 2000); § 2L1.2, comment.
(n.1(B)(iii)). As the 16-level enhancement pursuant to U.S.S.G. §
2L1.2(b)(1)(A)(ii) was independently supported by Deras’s 1997
assault conviction, it is unnecessary to reach his claim regarding
the enhancement based on the 1999 assault and battery conviction.
See United States v. Garcia, 917 F.2d 1370, 1376 (5th Cir. 1990).
Deras also contends that his 70-month sentence violates due
process because it exceeds the maximum sentence for a violation of
8 U.S.C. § 1326(a) as charged in the indictment. His contention is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998), in which the Supreme Court held that treatment of prior
convictions as sentencing factors in § 1326(b)(1) and (2) is
constitutional. Although Deras asserts that today a majority of
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the Supreme Court would consider Almendarez-Torres to be
incorrectly decided in light of Apprendi v. New Jersey, 530 U.S.
466 (2000), “[t]his court has repeatedly rejected arguments like
the one made by [Deras] and has held that Almendarez-Torres remains
binding despite Apprendi.” United States v. Garza-Lopez, 410 F.3d
268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Deras
concedes as much, raising the argument only to preserve it for
further review.
The sentence imposed by the district court is affirmed, and
the government’s motion to seal its motions to supplement the
record on appeal and the corresponding supplemental records is
granted.
SENTENCE AFFIRMED; SEALING MOTION GRANTED.
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