United States v. Justin Richardson

580 F. App'x 526

Opinion

MEMORANDUM **

In a published opinion filed herewith, we resolve Richardson’s constitutional challenges to the Sex Offender Registration and Notification Act. Here, we resolve 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 imprisonment 1 without the assistance of appointed counsel. Scott v. Illinois, 440 U.S. 367, 374, 99 S.Ct. 1158, 59 L.Ed.2d 383 (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 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.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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).