Case: 17-14454 Date Filed: 06/18/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-14454 Non-Argument Calendar ________________________
D.C. Docket No. 6:17-cr-00112-PGB-TBS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NATHAN PEREZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(June 18, 2018)
Before MARTIN, JILL PRYOR, and NEWSOM, Circuit Judges.
PER CURIAM:
Nathan Perez appeals his 210-month concurrent sentences of imprisonment
for the following convictions: two counts of receiving child pornography, 18 Case: 17-14454 Date Filed: 06/18/2018 Page: 2 of 8
U.S.C. § 2252(a)(2) and (b)(1), and one count of possessing material that contained
images of child pornography, id. at (a)(4)(B) and (b)(2). On appeal, he argues that
the district court clearly erred when it relied on uncertified case-abstract filings—
here, county-court docket sheets—to include three Hernando County convictions
(two convictions for battery and one for driving with a suspended license) in
calculating his criminal-history score.
I
When reviewing the district court’s findings with respect to Guidelines
issues, we consider legal issues de novo, factual findings for clear error, and the
court’s application of the Guidelines to the facts with due deference, which is akin
to clear-error review. United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir.
2010). There is no clear error in cases where the record supports the district
court’s findings. United States v. Petrie, 302 F.3d 1280, 1290 (11th Cir. 2002).
The government must establish the facts necessary to support a sentencing
enhancement by a preponderance of the evidence. United States v. Perez-Oliveros,
479 F.3d 779, 783 (11th Cir. 2007). This burden requires the trier of fact to
believe that the existence of a fact is more probable than its nonexistence. United
States v. Almedina, 686 F.3d 1312, 1315 (11th Cir. 2012). We will not disturb a
district court’s factual findings under the clearly-erroneous standard unless we are
left with a “definite and firm conviction that a mistake has been committed.” Id.
2 Case: 17-14454 Date Filed: 06/18/2018 Page: 3 of 8
A challenge to the facts contained in the Presentence Investigation Report
(“PSI”) must be asserted with specificity and clarity, or else the objection is
waived. United States v. Bennett, 472 F.3d 825, 832 (11th Cir. 2006). A
defendant seeking to preserve an objection to his sentence for appeal must raise
that point in such clear and simple language that the trial court may not
misunderstand it. United States v. Ramirez-Flores, 743 F.3d 816, 821 (11th Cir.
2014).
The definitions and instructions in U.S.S.G. § 4A1.2 govern the computation
of criminal-history points under § 4A1.1. See U.S.S.G. § 4A1.1, comment. (n.1).
The Guidelines define “prior sentence” as “any sentence previously imposed upon
adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for
conduct not part of the instant offense.” U.S.S.G. § 4A1.2(a)(1). “Sentence of
imprisonment” is defined as a sentence of incarceration that, for the purpose of
assigning criminal history points under U.S.S.G. § 4A1.1(a), (b), and (c), refers to
the “maximum sentence imposed.” U.S.S.G. § 4A1.2(b)(1). Under § 4A1.1(b),
two points are added for each prior sentence of imprisonment of at least 60 days
but not more than one year and one month. U.S.S.G. § 4A1.1(b). The Guidelines
also expressly count a misdemeanor driving-with-revoked-or-suspended-license
conviction if the sentence was a term of probation exceeding one year or a term of
imprisonment of at least 30 days. U.S.S.G. § 4A1.2(c)(1). The following prior
3 Case: 17-14454 Date Filed: 06/18/2018 Page: 4 of 8
offenses, however, are never included when computing a defendant’s criminal
history: fish and game violations, hitchhiking, juvenile status offenses and truancy,
local ordinance violations, loitering, minor traffic infractions, public intoxication,
and vagrancy. Id. § 4A1.2(c)(2).
We have held that a certified copy of a conviction is not required for a
sentencing court to make a proper finding that such a conviction in fact exists.
United States v. Wilson, 183 F.3d 1291, 1301 (11th Cir. 1999). Rather, a
sentencing court may “consider any information, (including hearsay) regardless of
its admissibility at trial, in determining whether factors exist that would enhance a
defendant’s sentence, provided that the information is sufficiently reliable.” Id. In
Wilson, we held that the sentencing court’s reliance on the PSI, the on-the-record
statements of a probation officer, and the notes of another probation officer were
sufficiently reliable when taken together. Id. We have also held that a district
court did not err when it relied on a probation officer’s undisputed notation
connecting the defendant to prior convictions used to calculate his criminal history
score, despite the fact that, in those cases, the defendant was arrested under
different names. United States v. Alicea, 875 F.3d 606, 609 (11th Cir. 2017).
II
As an initial matter, we conclude that Perez adequately preserved his
objection to the scoring of the Hernando County convictions. Initially, he raised
4 Case: 17-14454 Date Filed: 06/18/2018 Page: 5 of 8
his objections to the scoring of the convictions because the information did not
come directly from Shepard 1 documents. He then objected to the reliance on the
case-abstract filings that the government included in its sentencing memorandum,
arguing that the court needed a judgment, conviction, and fingerprints, to show by
a preponderance of the evidence that he was convicted in those cases, and also
objected to the procedural reasonableness of his sentence. Thus, Perez raised the
issue before the court with sufficient specificity and clarity. See Bennett, 472 F.3d
at 832. Accordingly, we review the factual findings for clear (rather than plain)
error. See Rothenberg, 610 F.3d at 624.
Moving to the merits, the district court did not clearly err in finding that
Perez was convicted of the Hernando County offenses and that each conviction
warranted two criminal-history points, totaling a six-point enhancement. The
record adequately demonstrates that the government met its burden by proving by
a preponderance of the evidence that Perez had previously been convicted of the
three misdemeanor offenses. Perez-Oliveros, 479 F.3d at 783.
The Hernando County case-abstract filings, the letters between the probation
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Case: 17-14454 Date Filed: 06/18/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-14454 Non-Argument Calendar ________________________
D.C. Docket No. 6:17-cr-00112-PGB-TBS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NATHAN PEREZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(June 18, 2018)
Before MARTIN, JILL PRYOR, and NEWSOM, Circuit Judges.
PER CURIAM:
Nathan Perez appeals his 210-month concurrent sentences of imprisonment
for the following convictions: two counts of receiving child pornography, 18 Case: 17-14454 Date Filed: 06/18/2018 Page: 2 of 8
U.S.C. § 2252(a)(2) and (b)(1), and one count of possessing material that contained
images of child pornography, id. at (a)(4)(B) and (b)(2). On appeal, he argues that
the district court clearly erred when it relied on uncertified case-abstract filings—
here, county-court docket sheets—to include three Hernando County convictions
(two convictions for battery and one for driving with a suspended license) in
calculating his criminal-history score.
I
When reviewing the district court’s findings with respect to Guidelines
issues, we consider legal issues de novo, factual findings for clear error, and the
court’s application of the Guidelines to the facts with due deference, which is akin
to clear-error review. United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir.
2010). There is no clear error in cases where the record supports the district
court’s findings. United States v. Petrie, 302 F.3d 1280, 1290 (11th Cir. 2002).
The government must establish the facts necessary to support a sentencing
enhancement by a preponderance of the evidence. United States v. Perez-Oliveros,
479 F.3d 779, 783 (11th Cir. 2007). This burden requires the trier of fact to
believe that the existence of a fact is more probable than its nonexistence. United
States v. Almedina, 686 F.3d 1312, 1315 (11th Cir. 2012). We will not disturb a
district court’s factual findings under the clearly-erroneous standard unless we are
left with a “definite and firm conviction that a mistake has been committed.” Id.
2 Case: 17-14454 Date Filed: 06/18/2018 Page: 3 of 8
A challenge to the facts contained in the Presentence Investigation Report
(“PSI”) must be asserted with specificity and clarity, or else the objection is
waived. United States v. Bennett, 472 F.3d 825, 832 (11th Cir. 2006). A
defendant seeking to preserve an objection to his sentence for appeal must raise
that point in such clear and simple language that the trial court may not
misunderstand it. United States v. Ramirez-Flores, 743 F.3d 816, 821 (11th Cir.
2014).
The definitions and instructions in U.S.S.G. § 4A1.2 govern the computation
of criminal-history points under § 4A1.1. See U.S.S.G. § 4A1.1, comment. (n.1).
The Guidelines define “prior sentence” as “any sentence previously imposed upon
adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for
conduct not part of the instant offense.” U.S.S.G. § 4A1.2(a)(1). “Sentence of
imprisonment” is defined as a sentence of incarceration that, for the purpose of
assigning criminal history points under U.S.S.G. § 4A1.1(a), (b), and (c), refers to
the “maximum sentence imposed.” U.S.S.G. § 4A1.2(b)(1). Under § 4A1.1(b),
two points are added for each prior sentence of imprisonment of at least 60 days
but not more than one year and one month. U.S.S.G. § 4A1.1(b). The Guidelines
also expressly count a misdemeanor driving-with-revoked-or-suspended-license
conviction if the sentence was a term of probation exceeding one year or a term of
imprisonment of at least 30 days. U.S.S.G. § 4A1.2(c)(1). The following prior
3 Case: 17-14454 Date Filed: 06/18/2018 Page: 4 of 8
offenses, however, are never included when computing a defendant’s criminal
history: fish and game violations, hitchhiking, juvenile status offenses and truancy,
local ordinance violations, loitering, minor traffic infractions, public intoxication,
and vagrancy. Id. § 4A1.2(c)(2).
We have held that a certified copy of a conviction is not required for a
sentencing court to make a proper finding that such a conviction in fact exists.
United States v. Wilson, 183 F.3d 1291, 1301 (11th Cir. 1999). Rather, a
sentencing court may “consider any information, (including hearsay) regardless of
its admissibility at trial, in determining whether factors exist that would enhance a
defendant’s sentence, provided that the information is sufficiently reliable.” Id. In
Wilson, we held that the sentencing court’s reliance on the PSI, the on-the-record
statements of a probation officer, and the notes of another probation officer were
sufficiently reliable when taken together. Id. We have also held that a district
court did not err when it relied on a probation officer’s undisputed notation
connecting the defendant to prior convictions used to calculate his criminal history
score, despite the fact that, in those cases, the defendant was arrested under
different names. United States v. Alicea, 875 F.3d 606, 609 (11th Cir. 2017).
II
As an initial matter, we conclude that Perez adequately preserved his
objection to the scoring of the Hernando County convictions. Initially, he raised
4 Case: 17-14454 Date Filed: 06/18/2018 Page: 5 of 8
his objections to the scoring of the convictions because the information did not
come directly from Shepard 1 documents. He then objected to the reliance on the
case-abstract filings that the government included in its sentencing memorandum,
arguing that the court needed a judgment, conviction, and fingerprints, to show by
a preponderance of the evidence that he was convicted in those cases, and also
objected to the procedural reasonableness of his sentence. Thus, Perez raised the
issue before the court with sufficient specificity and clarity. See Bennett, 472 F.3d
at 832. Accordingly, we review the factual findings for clear (rather than plain)
error. See Rothenberg, 610 F.3d at 624.
Moving to the merits, the district court did not clearly err in finding that
Perez was convicted of the Hernando County offenses and that each conviction
warranted two criminal-history points, totaling a six-point enhancement. The
record adequately demonstrates that the government met its burden by proving by
a preponderance of the evidence that Perez had previously been convicted of the
three misdemeanor offenses. Perez-Oliveros, 479 F.3d at 783.
The Hernando County case-abstract filings, the letters between the probation
office and the Hernando County clerk, and the probation office’s explanation
concerning the retrieval of information were, together, sufficiently reliable
information on which the district court could base its finding. In the PSI
1 Shepard v. United States, 544 U.S. 13 (2005). 5 Case: 17-14454 Date Filed: 06/18/2018 Page: 6 of 8
Addendum, the probation office explained that the Hernando County court had met
its record-retention requirements, and that the “images” related to those cases had
therefore been destroyed. The office explained that it had obtained information
about the convictions from the county court’s docket documents. The government
attached to its sentencing memorandum a letter from the probation office to the
Hernando County clerk in which the probation office requested documents related
to “Nathan Perez Poonpiset (DOB: 12/12/1981)” for the following convictions: (1)
2007CT001571 – Driving While License Suspended; (2) 2007MM005525 –
Battery Touch and Strike; (3) 2008MM001417 – Battery Touch and Strike,
Damage Property, Condition Release Violation. The clerk confirmed that the
documents had been destroyed. Nevertheless, the government attached the case-
abstract filings for the three convictions (which showed that “Nathan Perez” was
the defendant and which contained the same case numbers as those referenced in
the PSI), and also included in the letter from the probation office to the Hernando
County clerk. Finally, although the letter to the clerk referred to “Nathan Perez
Poonpiset,” the probation office confirmed in the PSI that “Perez, Nathan
Poonpiset” was one of Perez’s aliases, and both the letter and the PSI referenced
the same date of birth. See Alicea, 875 F.3d at 609 (explaining that district court
did not clearly err in relying on convictions assigned to defendant’s known
aliases).
6 Case: 17-14454 Date Filed: 06/18/2018 Page: 7 of 8
Perez insists on appeal that the case-abstract filings were unreliable because
they did not expressly name the offenses for which he was convicted, and he thus
contends that the court should not have counted those convictions toward his
criminal history. However, the Hernando County court docket entries illustrate
(albeit in an abbreviated fashion) that Perez was indeed found guilty of a criminal
traffic violation and two misdemeanor-domestic-violence charges. Specifically,
the docket sheets contained the case numbers, Perez’s name, nolo contendere
pleas, docket-entry captions referring to the crimes, and his sentences. For the
traffic violation, Perez received a sentence of two months’ incarceration, which he
served from May 20, 2008, to July 29, 2008. For the domestic-violence
convictions, he received a sentence of six months and seven days and a sentence of
five months and 31 days, which was later modified to six months and seven days.
Particularly under the deferential standard that governs our review, these
documents—along with the correspondence between the probation office and the
Hernando County clerk’s office, as well as the probation office’s explanation of the
original files’ destruction—were sufficient to allow the court to find that Perez had
in fact been convicted of the three crimes and that each sentence met the
requirements of the Guidelines’ two-level enhancement. Because the docket sheets
were sufficiently reliable, the district court did not clearly err in finding that Perez
7 Case: 17-14454 Date Filed: 06/18/2018 Page: 8 of 8
was in fact convicted of the Hernando County convictions. See Wilson, 183 F.3d
at 1301.
AFFIRMED.