           Case: 16-17545   Date Filed: 11/09/2017   Page: 1 of 6


                                                                    [PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                            No. 16-17545
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:15-cr-00520-RAL-AEP-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

JORGE LUIS ALICEA,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                            (November 9, 2017)

Before ED CARNES, Chief Judge, TJOFLAT, and WILLIAM PRYOR, Circuit
Judges.

PER CURIAM:
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      Jorge Luis Alicea pleaded guilty to three counts of distributing controlled

substances, 21 U.S.C. § 841(a)(1) and (b)(1)(c), one count of possessing with

intent to distribute controlled substances, id., and one count of being a felon in

possession of a firearm, 18 U.S.C. § 922(g). Alicea contends that the court erred in

determining his base offense level and in calculating his criminal history score.

      The district court determined that Alicea’s base offense level was 20 because

he committed the § 922(g) offense after previously being convicted of a controlled

substance offense. U.S.S.G. § 2K2.1(a)(4)(A). Alicea argues that the government

did not prove that he was convicted of a controlled substance offense. We review

the district court’s factual findings for clear error. United States v. Robertson, 493

F.3d 1322, 1329–30 (11th Cir. 2007). A finding is clearly erroneous where, after

reviewing all the evidence, we are “left with the definite and firm conviction that a

mistake has been committed.” Id. at 1330.

      The presentence investigation report states that in 2006 Alicea was

convicted of the criminal sale of a controlled substance (heroin) on school grounds.

Alicea objected to the PSR because, according to him, there was insufficient

evidence to support the fact of that conviction. In response, the probation officer

produced a certificate of disposition from the “Supreme Court of the State of New

York, Bronx County,” signed by the court clerk, stating:

      I hereby certify that it appears from an examination of the records on
      file in this office that on 08/14/2006 the above named defendant was
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       convicted of the crime(s) below before Justice Davidowitz, Edward
       then a justice of this court. CRIMINAL SALE CONTOL [sic] SUB –
       SCHOOL GROUNDS PL 220.44 02 BF (HEROIN).

The “above named defendant” is identified on the certificate as “Alicea, Jorge.”

       Alicea acknowledges that the government need only prove the fact of his

conviction by a preponderance of the evidence, see United States v. Rodriguez,

398 F.3d 1291, 1296 (11th Cir. 2005), and that such proof need not be admissible,

U.S.S.G. § 6A1.3(a). Yet he asserts that the certificate is insufficient to prove the

fact of his conviction because of its “dubious wording,” because it is signed “by an

unidentified court clerk,” and because it lists a birthdate of 4/23/86 instead of

3/24/86.1

       Under New York law, “[a] certificate issued by a criminal court, or the clerk

thereof, certifying that a judgment of conviction against a designated defendant has

been entered in such court, constitutes presumptive evidence of the facts stated in

such certificate.” N.Y. Crim. Proc. Law § 60.60(1). Although we have not

addressed whether a New York certificate of disposition is sufficient to establish

the fact of a defendant’s prior conviction, the Second and Fifth Circuits have held

as much. See United States v. Green, 480 F.3d 627, 632 (2d Cir. 2007) (“[A]

certificate [of disposition] . . . constitutes presumptive evidence of the facts stated
       1
          Alicea defeats his assertion that the birthdate discrepancy suggests the certificate
“pertains to the wrong individual” by later acknowledging that he “did not dispute that he was
the defendant in that particular case.” And Alicea’s assertion that the certificate is signed “by an
unidentified court clerk” fails. Although the court clerk’s name is not printed on the certificate,
the certificate is signed, and the title “court clerk” appears beneath the signature line.
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in such certificate.”) (emphasis omitted) (quoting N.Y. Crim. Proc. Law

§ 60.60(1)); United States v. Neri-Hernandes, 504 F.3d 587, 592 (5th Cir. 2007)

(“[A] Certificate of Disposition is admissible to determine the nature of a prior

conviction and has sufficient indicia of reliability for the court to rely on it to

establish this fact.”).

       Given that persuasive authority, we are not “left with the definite and firm

conviction” that the district court erred by relying on the certificate of disposition

to find that Alicea had been convicted of a controlled substance offense. See

Robertson, 493 F.3d at 1329–30. As a result, the district court did not clearly err in

applying a base offense level of 20. U.S.S.G. § 2K2.1(a)(4)(A).

       Alicea also contends that the district court erred in calculating his criminal

history score. He argues that the government failed to provide reliable evidence to

prove his three prior New York convictions for the sale of a controlled substance

on school grounds, misdemeanor possession of a controlled substance, and

misdemeanor possession of marijuana. Had the district court disregarded those

convictions, Alicea asserts, he would have received three fewer criminal history

points and his criminal history category would have been one category lower. As

noted earlier, we review only for clear error the district court’s factual

determinations. See Robertson, 493 F.3d at 1329–30.




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      We have already explained that the district court did not clearly err by

finding that Alicea was convicted of selling heroin on school grounds. Nor did it

err with respect to the other two New York convictions. The district court

accepted the probation officer’s undisputed notation that both convictions bore an

identification number identical to the one in Alicea’s National Crime Information

Center report. And although the arrests in those cases were made under the names

George Alicea and Joshua Alicea, the NCIC report indicates that those names are

Alicea’s known aliases. Given that evidence, the district court did not clearly err

by finding that Alicea had been convicted of those offenses.

      Alternatively, even if the district court did err with respect to those New

York convictions, any such error was harmless. See United States v. Monzo, 852

F.3d 1343, 1351 (11th Cir. 2017). Section 4A1.1(c) of the Guidelines provides

that a defendant receives one criminal history point for each prior conviction that

does not receive criminal history points under either § 4A1.1(a) or (b). A

defendant may receive no more than four points under § 4A1.1(c). Alicea had six

qualifying convictions under § 4A1.1(c): the three New York convictions

discussed above and three Florida convictions that he does not challenge on appeal.

Consistent with § 4A.1(c), Alicea received only four criminal history points for

those convictions. Even excluding the two points assessed for the New York

misdemeanors, Alicea’s criminal history score would remain the same — he would


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still have four qualifying convictions under § 4A1.1(c), each yielding one criminal

history point. For that reason, any error with respect to the two contested New

York convictions was harmless. See Monzo, 852 F.3d at 1351.

      AFFIRMED.




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