                                                                           FILED
                           NOT FOR PUBLICATION                             JUN 19 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-10346

              Plaintiff - Appellee,              D.C. No. 3:10-cr-00087-ECR-
                                                 VPC-1
  v.

JUSTIN ALLAN RICHARDSON,                         MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Nevada
                Edward C. Reed, Jr., Senior District Judge, Presiding

                       Argued and Submitted April 16, 2012
                            San Francisco, California
                        Submission Vacated May 4, 2012
                           Resubmitted June 11, 2014

Before: REINHARDT and MURGUIA, Circuit Judges, and EZRA, District
Judge.**

       In a published opinion filed herewith, we resolve Richardson’s constitutional

challenges to the Sex Offender Registration and Notification Act. Here, we resolve

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable David A. Ezra, District Judge for the U.S. District
Court for the District of Hawaii, sitting by designation.
his challenge to his sentence. Richardson argues that the district court should not

have assigned him one criminal history point for his 2000 misdemeanor conviction

because he did not have counsel during the proceeding and the conviction resulted

in a sentence of time served.

      The Sixth Amendment provides that an indigent criminal defendant may not

be sentenced to a term of imprisonment1 without the assistance of appointed

counsel. Scott v. Illinois, 440 U.S. 367, 374 (1979). However, “once the

government establishes the fact of a conviction, the burden rests on the defendant

to show that the conviction was unconstitutional.” United States v. Wahid, 614

F.3d 1009, 1017 (9th Cir. 2010) (citing United States v. Newman, 912 F.2d 1119,

1121 (9th Cir. 1990)). “A defendant cannot carry this burden ‘merely by pointing

to a silent or ambiguous record.’” United States v. Dominguez, 316 F.3d 1054,

1056 (9th Cir. 2003) (quoting United States v. Mulloy, 3 F.3d 1337, 1339 (9th Cir.

1993)).

      The Government established the fact of Richardson’s conviction. In contrast,

Richardson presented no evidence demonstrating that he did not make a knowing

and intentional waiver of his right to counsel or that his conviction was otherwise



          1
         A sentence of time served constitutes a sentence of actual imprisonment.
Cf. Arreguin-Moreno v. Mukasey, 511 F.3d 1229, 1230 (9th Cir. 2008).
                                          2
unconstitutional. Because Richardson has failed to overcome the presumption of

validity accorded to his 2000 conviction, we conclude the district court did not err

in assigning Richardson one criminal history point for the 2000 misdemeanor

conviction.



AFFIRMED




                                          3
