United States v. Alonso-Ochoa

35 F. App'x 615

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 24, 2002
• Docket: No. 01-10351; D.C. No. CR-00-00433-PMP
• Status: Published

Opinion

MEMORANDUM

**

Manuel Eduardo Alonso-Ochoa appeals the 57-month sentence imposed after his conviction for unlawful re-entry, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 18 U.S.C. § 3742, and we affirm.

Alonso-Ochoa first contends the district court erred in assessing criminal history points for his prior juvenile conviction. Specifically, he attacks the constitutional validity of the conviction, based upon the absence of any indication in the record of counsel or a waiver. We review de novo a district court’s determination that a particular prior conviction may be used in calculating a defendant’s criminal history score, see United States v. Allen, 153 F.3d 1037, 1040 (9th Cir.1998), and find no error.

Because the ultimate burden of proof in demonstrating the constitutional infirmity of a prior conviction lies with the defendant, Alonso-Ochoa cannot satisfy his burden of proving the constitutional invalidity of a prior conviction by pointing to a silent or ambiguous record. See id. at 1041.

Alonso-Ochoa next contends the district court erred under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because his prior aggravated felony conviction was not alleged in the indictment. Alonso-Ochoa’s contention is foreclosed by United States v. Pacheco-Zepada, 234 F.3d 411, 414-15 (9th Cir.2000), cert. denied, 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001), which stated Apprendi did not overrule Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9 th Cir. R. 36-3.