United States v. Miranda-Ordonez

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 28, 2002
• Docket: 01-50814
• Status: Unpublished

Opinion

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.

-------------------- Appeal from the United States District Court for the Western District of Texas (01-CR-556-ALL-DB) -------------------- 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.