United States v. Alvarado-Martinez ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 07-50492
v.
 D.C. No.
CR-07-00084-SGL
GENARO ALVARADO-MARTINEZ, also
known as Ismael Serratos, OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Stephen G. Larson, District Judge, Presiding
Argued and Submitted
November 18, 2008—Pasadena, California
Memorandum Filed December 22, 2008
Order Withdrawing Memorandum Filed February 5, 2009
Per Curiam Opinion Filed February 5, 2009
Before: Myron H. Bright,* Stephen S. Trott, and
Michael Daly Hawkins, Circuit Judges.
Per Curiam Opinion
*The Honorable Myron H. Bright, Senior United States Circuit Judge
for the Eighth Circuit, sitting by designation.
1337
UNITED STATES v. ALVARADO-MARTINEZ 1339
COUNSEL
James H. Locklin, Deputy Federal Public Defender, Los
Angeles, California, for the defendant-appellant.
Antoine F. Raphael, Assistant United States Attorney, River-
side, California, for the plaintiff-appellee.
OPINION
PER CURIAM:
Appellant Genaro Alvarado-Martinez challenges his sen-
tence, arguing that the district court improperly relied on a
1340 UNITED STATES v. ALVARADO-MARTINEZ
California Law Enforcement Telecommunications System
(“CLETS”) database report (“rap sheet”) in calculating his
criminal-history score. Because the district court did not
abuse its discretion by concluding that Alvarado-Martinez’s
rap sheet was sufficiently reliable and because the district
court did not clearly err in finding that Alvarado-Martinez
suffered four prior misdemeanors, we affirm.
FACTS AND PROCEDURAL HISTORY
In June 2007, Alvarado-Martinez pleaded guilty to illegally
reentering the United States after deportation, in violation of
8 U.S.C. § 1326(a), (b)(2). A modified presentence-
investigation report (“PIR”) recommended that the district
court assign Alvarado-Martinez eighteen criminal-history
points, which would place him in Criminal History Category
VI under the United States Sentencing Guidelines. Eight of
these criminal-history points were for four prior misdemeanor
convictions that are disputed on appeal. The probation office
included these convictions based on a “rap sheet” that it
obtained from the CLETS.
Alvarado-Martinez objected to the PIR’s assignment of
eight criminal-history points, which were based on the misde-
meanor convictions. Alvarado-Martinez also offered an affi-
davit, which indicated that, with the exception of the docket
sheets, the district-court files in each of those cases had been
destroyed. Alvarado-Martinez argued that because the files
were unavailable, he should not be assessed criminal-history
points on those convictions because the docket sheets in those
cases, which had not been destroyed, do not contain informa-
tion to establish a connection to him. Notably, although
Alvarado-Martinez’s rap sheet includes the case numbers of
the four misdemeanor convictions, the docket sheets that cor-
respond with the case numbers identify the defendant as “Ism-
ael Serratos.”
At sentencing, the district court compared the information
on each docket sheet with the information on Alvarado-
UNITED STATES v. ALVARADO-MARTINEZ 1341
Martinez’s rap sheet and ruled that the government had met
its burden, because there was enough consistency in numbers
and details in the docket sheets to convince the court by a pre-
ponderance of the evidence that the four convictions were suf-
fered by Alvarado-Martinez. Accordingly, the district court
sentenced Alvarado-Martinez to fifty-one months’ imprison-
ment based on the full eighteen criminal-history points.
Alvarado-Martinez appealed.
DISCUSSION
Alvarado-Martinez argues that the district court improperly
assessed him eight criminal-history points based on four mis-
demeanor convictions because the government failed to prove
that he suffered those convictions. In United States v. Marin-
Cuevas, this Court set out the analytical framework to resolve
such an argument.1 147 F.3d 889, 894 (9th Cir. 1998). A dis-
trict court must first address whether the evidence, here a rap
sheet, was sufficiently reliable even to be considered at sen-
tencing. See id. If so, the question is whether that evidence,
along with any other record evidence, is sufficient to sustain
the assignment of criminal-history points. See id. We review
each question in turn.
I.
[1] Turning to the first question, due process requires that
a defendant be sentenced on the basis of accurate information.
See Roberts v. United States, 445 U.S. 552, 556 (1980). Thus,
a district court may consider any relevant information, “pro-
vided that the information has sufficient indicia of reliability
to support its probable accuracy.” U.S.S.G. § 6A1.3(a); see
also United States v. Sustaita, 1 F.3d 950, 952 (9th Cir. 1993).
1
This case raises the question unaddressed by Marin-Cuevas, namely,
whether a district court abuses its discretion by concluding that a
fingerprint-matched rap sheet, in the absence of contrary evidence, is suf-
ficiently reliable for assigning criminal-history points.
1342 UNITED STATES v. ALVARADO-MARTINEZ
We review a district court’s evaluation of the reliability of
evidence used at sentencing for an abuse of discretion. See
United States v. Alvarado-Guizar, 361 F.3d 597, 599-600 (9th
Cir. 2004).
[2] We conclude that the district court did not abuse its dis-
cretion by determining that Alvarado-Martinez’s rap sheet
was sufficiently reliable to be used in calculating his criminal-
history score.2 It is undisputed that the rap sheet at issue here
was compiled on the basis of fingerprint matching. Thus, the
fact that Alvarado-Martinez’s rap sheet refers to convictions
in the name of Ismael Serratos or the fact that minor inconsis-
tencies appear on it is of no moment, because the rap sheet is
reliable as a result of the fingerprint matching.3 Such a proce-
dure provides “sufficient indicia of reliability to support [the]
probable accuracy” of the convictions listed therein.
§ 6A1.3(a).
Our conclusion is consistent with this Court’s case law and
persuasive authority. For example, in Marin-Cuevas, this
Court held that a PIR was reliable because “the probation offi-
cer who prepared [the PIR] obtained his information from a
reliable source[,] the computerized criminal history[,] and had
no reason to prevaricate.” 147 F.3d at 895. Thus, Marin-
Cuevas concluded, if implicitly, that rap sheets produced by
a computerized criminal history are reliable. Other unpub-
lished decisions are consistent with this conclusion. See, e.g.,
United States v. Franco-Delgado, 224 F.App’x. 722, 724 (9th
2
We limit our holding to the circumstances presented here, namely the
existence of a fingerprint-matched rap sheet and the absence of other evi-
dence that would undermine the rap sheet’s reliability. We express no
opinion on the reliability of a rap sheet that is, for example, not compiled
on the basis of fingerprint matching or is otherwise undermined by contra-
dictory evidence.
3
And, in any event, the rap sheet lists Ismael Serratos as an alias for
Alvarado-Martinez. Other than the alias issue, Alvarado-Martinez con-
ceded at oral argument that the record contains no other direct evidence
that undermines the accuracy of his rap sheet.
UNITED STATES v. ALVARADO-MARTINEZ 1343
Cir. 2007) (relying in part on a “fingerprint-matched rap
sheet” to prove a prior conviction for purposes of calculating
a defendant’s criminal-history score); United States v. Currie,
974 F.2d 1343 (Table), 1992 WL 209538, at *2 (9th Cir.
1992) (relying, in part, on a rap sheet at sentencing). We also
note that our sister circuits are consistent with our approach.
See, e.g., United States v. Rodriguez-Arreola, 313 F.3d 1064,
1068 (8th Cir. 2002) (relying in part on rap sheet at sentenc-
ing); United States v. Shinault, 147 F.3d 1266, 1278 (10th Cir.
1998) (same); United States v. Ibanez, 924 F.2d 427, 430 (2d
Cir. 1991) (same).
II.
The next question is whether the record contains sufficient
evidence to show that Alvarado-Martinez suffered the four
misdemeanor convictions. The government bears the burden
to show, by a preponderance of the evidence, that a defendant
suffered each of the convictions used to assign points in cal-
culating his criminal-history score. See United States v.
Romero-Rendon, 220 F.3d 1159, 1160 (9th Cir. 2000). We
review a district court’s sentencing findings for clear error.
See United States v. Mix, 457 F.3d 906, 911 (9th Cir. 2006).
The district court found that the rap sheet established by a
preponderance of the evidence that Alvarado-Martinez had
suffered the four misdemeanor convictions. On appeal,
Alvarado-Martinez argues that a rap sheet does not satisfy the
preponderance-of-the-evidence standard required for assess-
ing criminal-history points. We disagree.
[3] As an initial matter, Alvarado-Martinez cites no binding
authority for that proposition. But more importantly, this
Court has held that a presentence-investigation report, which
relied on the defendant’s rap sheet, was sufficient to satisfy
the preponderance-of-the-evidence standard. See Marin-
Cuevas, 147 F.3d at 895. If a PIR, which relied on a rap sheet,
was sufficient evidence to sustain the district court’s decision
1344 UNITED STATES v. ALVARADO-MARTINEZ
to assign criminal-history points, then a rap sheet is sufficient
to establish Alvarado-Martinez’s misdemeanor convictions by
a preponderance of the evidence, absent contrary evidence.
[4] Alvarado-Martinez argues that Marin-Cuevas is distin-
guishable because he disputed the fact of the misdemeanor
convictions. But this claim mischaracterizes the record. In a
sentencing memorandum, Alvarado-Martinez stated only that
“the government cannot meet its burden of proof that the
alleged convictions relate to [him], and no criminal history
points should be assigned for these convictions.” And at his
sentencing hearing, he challenged only the propriety of the
government’s use of the rap sheet. As in Marin-Cuevas,
Alvarado-Martinez “never denied he was convicted of those
misdemeanors. He has argued only that the government failed
to provide sufficient evidence.” Id. Because the record here
contains sufficient evidence, namely the fingerprint-matched
CLETS rap sheet, that Alvarado-Martinez suffered the four
misdemeanors, the district court did not clearly err.
CONCLUSION
Accordingly, we AFFIRM.