     Case: 09-40125 Document: 00511282230 Page: 1 Date Filed: 11/02/2010




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                              FILED
                                                               November 2, 2010

                                 No. 09-40125                   Lyle W. Cayce
                                                                     Clerk

UNITED STATES OF AMERICA

                                          Plaintiff-Appellee
v.

RAMON GONZALEZ

                                          Defendant-Appellant




                Appeal from the United States District Court
                     for the Southern District of Texas


Before KING, GARWOOD, and DAVIS, Circuit Judges.
PER CURIAM:
      Defendant-appellant Ramon Gonzalez appeals the enhancement of his
sentences under 21 U.S.C. § 841(b)(1)(A) that resulted in concurrent
mandatory terms of life imprisonment. Gonzalez’s sole contention on appeal
is that the Government failed to prove beyond a reasonable doubt that he was
the subject of a 1988 drug conviction used to enhance his sentence, as
required under 21 U.S.C. § 851(c)(1). Because we find that the Government
did offer proof sufficient to meet the standard of beyond a reasonable doubt,
we affirm.
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                          STANDARD OF REVIEW
       We review de novo an appellant’s preserved challenge to the sufficiency
of the evidence. United States v. Alarcon, 261 F.3d 416, 421 (5th Cir. 2001).
                   FACTS AND PROCEEDINGS BELOW
       Ramon Gonzalez was convicted by a jury of conspiring to possess with
the intent to distribute more than 1,000 kilograms of marihuana and of
possession with the intent to distribute the same. Before the trial, the
Government filed an information pursuant to 21 U.S.C. § 851(a)(1) stating its
intent to seek enhancement of Gonzalez’s sentence based on a 1988 felony
conviction of possession with the intent to distribute marihuana and a 1997
felony conviction for conspiracy to possess with the intent to distribute
cocaine. Under 21 U.S.C. § 841(b)(1)(A)(vii), an individual who violates 21
U.S.C. § 841(a)(1) by possessing with the intent to distribute 1,000 kilograms
or more of marihuana is subject to imprisonment for not less than ten years
or more than life. If prior to the offense, the same individual was convicted of
two or more prior felony drug offenses, he is subject to a mandatory term of
life imprisonment. 21 U.S.C. § 841(b)(1)(A). After the Government files its
required information, if the defendant denies the allegations of the prior
convictions in written form, the district court must hold a hearing and
specifically must ascertain whether the defendant affirms or denies that he
has been previously convicted. 21 U.S.C. § 851(c)(1). If the defendant denies
the prior convictions at that point, the Government has the burden of proving
beyond a reasonable doubt any issue of fact relating to the prior conviction.
Id.
       Gonzalez filed a written objection to the Government’s required
information of prior convictions, in which he denied the 1988 and 1997
convictions. At the sentencing hearing, Gonzalez reiterated his objections to

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the Government’s information and again denied that he was the subject of the
1988 and 1997 convictions. The Government introduced a judgment of the
United States District Court for the Southern District of Texas, McAllen
Division, that one Ramon Gonzalez was convicted, on his guilty plea, of
conspiracy to possess with intent to distribute cocaine and was sentenced to
sixty months’ confinement and four years’ supervised release on December 16,
1997. The Government also introduced a judgment of the United States
District Court for the Southern District of Texas, Corpus Christi Division,
that one Ramon Gonzalez was convicted on his guilty plea of possession with
the intent to distribute marihuana and was sentenced to forty-one months’
confinement and three years’ supervised release on April 22, 1988. The name
on both judgments was Ramon Gonzalez (spelled the same way) and the
Social Security numbers identifying the offenders in the prior offenses
matched each other as well as the Social Security number of the defendant
Ramon Gonzalez. The 1997 conviction correctly reflects appellant’s date of
birth as September 26, 1950; the 1988 conviction does not reflect any date of
birth information. There was no evidence of any other prior conviction.
      The Government also introduced the testimony of Carlos Rosales, who
served as Gonzalez’s probation officer following his release from prison after
the 1997 conviction. Rosales testified that while serving as Gonzalez’s
probation officer, he was aware that the 1997 conviction was Gonzalez’s
second conviction and that his first conviction arose in Corpus Christi.
Rosales also admitted that he did not supervise Gonzalez after his first
conviction and did not recall whether he and Gonzalez had discussed any
prior offenses. He stated that he usually verified with the probationer the
information in his file and that he did not have any reason to believe that he
did not verify the prior conviction with Gonzalez.

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      The district court overruled Gonzalez’s sentencing objections after
taking evidence, and the court sentenced Gonzalez to concurrent life
sentences of imprisonment, to be followed by concurrent life terms of
supervised release. The district court noted that if Gonzalez were not subject
to a mandatory life sentence under section 841(b)(1)(A), the court would have
sentenced him to 360 months’ confinement. Gonzalez appeals only the use of
the 1988 felony drug offense for sentencing enhancement purposes under
section 841(b)(1)(A).
                                 DISCUSSION
      Gonzalez asserts that the Government failed to prove beyond a
reasonable doubt that he was the subject of the 1988 drug conviction used to
enhance his sentence.    Before addressing Gonzalez’s primary argument, we
first address whether the defendant was barred from challenging this prior
conviction. The statute at issue contains a provision that prohibits a
defendant from challenging “the validity of any prior conviction alleged under
this section which occurred more than five years before the date of the
information alleging such prior conviction.” 21 U.S.C. § 851(e). Other circuits
have concluded that this provision does not prevent a defendant from arguing
that he was not the person who was convicted of the offense. See United
States v. Dickerson, 514 F.3d 60, 65 (1st Cir. 2008); United States v. Green,
175 F.3d 822, 835 (10th Cir. 1999). We agree that Gonzalez’s challenge to his
prior conviction based on identity is not barred by section 851(e). He is not
challenging “the validity” of the 1988 conviction, but only that it is not a
conviction of him; and, if it is not a conviction of him, he likely had no notice
of it or reason to sooner challenge it.
      Gonzalez argues that the 1988 judgment of conviction by itself is not
sufficient to establish that he was the person who was convicted of that

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offense. This court has addressed challenges to the sufficiency of the evidence
of a prior conviction under this statute twice before. In both cases, the
Government produced physical evidence in the form of fingerprint exemplars
to prove that the defendant was convicted of the prior offenses. See United
States v. Jyles, 363 F. App’x 465, 466 (5th Cir. 2009); United States v.
Lampton, 158 F.3d 251, 260 (5th Cir. 1998). In neither case did we hold that
physical evidence was a requirement for proving a prior conviction beyond a
reasonable doubt.
      The defendant cites to several sister circuit cases where the
Government was found to have not proved the prior convictions beyond a
reasonable doubt. See e.g. United States v. Kellam, 568 F.3d 125 (4th Cir.
2009); United States v. Sanchez-Garcia, 461 F.3d 939 (8th Cir. 2006); United
States v. Green, 175 F.3d 822 (10th Cir. 1999). In each of those cases, there
was some form of discrepancy with respect to the issue of identity among the
various documents proving the prior convictions. Here, there are no such
discrepancies. The defendant’s name, spelled correctly, and his Social
Security number appeared on both prior convictions. Although Gonzalez
alleges that identity theft is not uncommon, he does not offer any evidence
that another person used his Social Security number at any time in the past.
The fact that the addresses on the older convictions are different from each
other is virtually meaningless, given that the convictions are nine years
apart.* The evidence the Government has provided is sufficient to support
the district court’s finding that, beyond a reasonable doubt, the instant
defendant-appellant was convicted by the 1988 judgment of conviction.



      *
       The 1988 conviction shows an address in Mission, Texas; the 1997 conviction shows
an address in San Juan, Texas.

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                               CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s sentence of
Ramon Gonzalez to two concurrent terms of life imprisonment, each followed
by concurrent life terms of supervised release.




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