                                                                         F IL E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                                      PU BL ISH
                                                                       September 29, 2006
                    U N IT E D ST A T E S C O U R T O F A P PE A L S
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
                                 T E N T H C IR C U IT



 U N ITED STA TES O F A M ER ICA ,

       Plaintiff - Appellee ,
 v.
                                                           No. 04-2324
 M ARLENE M ARTIN EZ-JIM ENEZ,

       Defendant - Appellant .



                  A ppeal from the U nited States D istrict C ourt
                          for the D istrict of N ew M exico
                              (D .C . N o. C R -04-1115 )


Luis B. Juarez, Juarez Law Office, Las Vegas, NM , for A ppellant.

Norman Cairns, Assistant United States Attorney (David C. Iglesias, United
States Attorney, with him on the brief), A lbuquerque, NM , for A ppellee.


Before L U C E R O , E B E L , and M U R PH Y , Circuit Judges.


E B E L, Circuit Judge.


      M arlene M artinez-Jimenez pleaded guilty to illegal reentry by a deported

alien previously convicted of an aggravated felony, in violation of 8 U.S.C.

§ 1326(a)(1), (a)(2), and (b)(2). She w as sentenced to fifty-seven months’

imprisonment based in part on the district court’s conclusion that she had a
criminal history category of V. On appeal, M s. M artinez-Jimenez argues that

there was insufficient evidence to prove one of the prior convictions used to

establish that criminal history category. W e conclude that the district court did

not clearly err in finding the evidence sufficient and therefore affirm the sentence.

                                I. B A C K G R O U N D

      On M ay 13, 2004, M s. M artinez-Jimenez was arrested by U.S. Border

Patrol agents in New M exico. She admitted to the agents that she was a citizen

and national of Colombia and that she had entered the United States illegally. A

records check showed that M s. M artinez-Jimenez had previously been deported

from the U nited States to Colombia on three separate occasions. The records also

showed that prior to her first deportation, she had been convicted in New York of

felony narcotics possession. On June 15, 2004, M s. M artinez-Jimenez was

charged by information with illegal reentry by a deported alien previously

convicted of an aggravated felony.

      M s. M artinez-Jimenez eventually entered into a plea agreement whereby

she agreed to plead guilty to the charged offense. Among other things, the plea

agreement stipulated that the appropriate offense level for purposes of sentencing

M s. M artinez-Jimenez was nineteen 1 and provided that her criminal history



      1
      This stipulation was pursuant to Rule 11(c)(1)(C) of the Federal Rules of
Criminal Procedure, which provides that “the plea agreement may specify . . . that
                                                                    (continued...)

                                         -2-
category would “be determined by the United States Probation Office and

reflected in the presentence report prepared in this case.”

      The presentence report (“PSR”) that was prepared listed multiple prior

convictions in M s. M artinez-Jimenez’s criminal history and assessed a total of

nine crim inal history points for five of the convictions. The PSR also added tw o

criminal history points to M s. M artinez-Jimenez’s criminal history score because

she committed the instant offense while under a criminal justice sentence, see

United States Sentencing Guidelines (“U.S.S.G.”) § 4A1.1(d), and one criminal

history point because she committed the instant offense less than two years after

release from imprisonment, see id. § 4A1.1(e). The resulting total of twelve

criminal history points put her in criminal history category V. See id. § 5A.

W hen combined with the stipulated offense level of nineteen, the corresponding

Guidelines sentencing range was fifty-seven to seventy-one months. Id.

      M s. M artinez-Jimenez filed objections to the PSR’s calculation of her

criminal history score. Specifically, she objected to the six criminal history




      1
        (...continued)
a specific sentence or sentencing range is the appropriate disposition of the case,
or that a particular provision of the Sentencing Guidelines, or policy statement, or
sentencing factor does or does not apply” and that “such a recommendation or
request binds the court once the court accepts the plea agreement.” Fed. R. Crim.
P. 11(c)(1)(C). This Rule allows the parties to stipulate to an offense level. See
United States v. Veri, 108 F.3d 1311, 1313-14 (10th Cir. 1997) (construing Rule
11(e)(1)(C), the precursor of Rule 11(c)(1)(C)).

                                         -3-
points allocated for the four prior convictions listed in paragraphs 22, 23, 24, and

25 of the PSR . 2   M s. M artinez-Jimenez contended that the evidence that she had

been convicted in those instances was insufficient; she also argued that there was

insufficient proof that she had either been represented by counsel or waived her

right to counsel in those prior proceedings.

       At M s. M artinez-Jimenez’s sentencing hearing, the district court evaluated

her objections to each of the four prior convictions. The court sustained her

objections to paragraphs 23 and 25 of the PSR, concluding that there was

insufficient evidence to prove those two convictions. 3 Through counsel, M s.

M artinez-Jimenez orally w ithdrew her objection to paragraph twenty-four. 4 As

for her objection to the conviction in paragraph twenty-two — for attempted

criminal possession of a controlled substance — the district court concluded both

that there was sufficient evidence of the conviction and that M s. M artinez-



       2
       These prior convictions, together with the criminal history points allocated
to each conviction, were as follow s:
      Paragraph 22: attempted criminal possession of a controlled substance (3
      points),
      Paragraph 23: disorderly conduct (1 point),
      Paragraph 24: theft by deception (1 point), and
      Paragraph 25: petit larceny (1 point).
       3
       The government does not appeal the district court’s conclusion that the
convictions listed in paragraphs 23 and 25 were not sufficiently proven.
       4
      The conviction in paragraph twenty-four added one point to M s. M artinez-
Jimenez’s criminal history score.

                                          -4-
Jimenez had not met her burden of proving by a preponderance of the evidence

that the conviction was constitutionally infirm.

      The evidence that the district court found sufficient to prove the conviction

listed in paragraph twenty-two was of two kinds. First, the probation office had

procured a computer printout from the National Crime Information Center

(“NCIC”) that indicated that in 1989 “M arilina M artinez” 5 had pleaded guilty in

New York state court to “ATT CPCS-5” (attempted criminal possession of a

controlled substance, 5th degree), 6 a class E felony, and was sentenced on January

2, 1990 to between eighteen months’ and three years’ imprisonment. Second, the

probation office had contacted the New York courts for information about the

prior narcotics conviction and had received a letter from the Supreme Court of

New York, signed by the county clerk of New York County, in response. The

letter advised that “Susana Cabajar” had pleaded guilty on December 7, 1989 to

“Attempted Criminal Possession of a Controlled Substance 5th Degree” and had

been sentenced on January 2, 1990 to “O ne and half years [sic] to Three years as a

Second Felony Offender.” The district court concluded that these two pieces of



      5
        The printout stated that the following aliases were also used by the subject
of the report: M arlena M artinez, M arlina M artinez, Susana M artinez, Susana
Cabajar, Susana Carbajar, Susana Carbagal, Susana Casbojol, Susoho Rodriguez,
and Carmen Torres.
      6
      People v. M arine, 142 M isc. 2d 449 (N.Y. Sup. Ct. 1989), makes clear that
CPCS stands for criminal possession of a controlled substance.

                                        -5-
evidence were sufficient to prove the conviction in paragraph twenty-two and that

the three criminal history points for the conviction were therefore properly added

to M s. M artinez-Jimenez’s criminal history score. 7

      Despite the district court’s exclusion of the convictions listed in paragraphs

23 and 25, the final total of ten criminal history points still corresponded to

criminal history category V and a Guidelines sentencing range of fifty-seven to

seventy-one months. See U.S.S.G. § 5A. On November 16, 2004, the district

court sentenced M s. M artinez-Jimenez to fifty-seven months’ imprisonment, the

low end of that range. Because of the potential that mandatory application of the

Guidelines would be found unconstitutional by the Supreme Court — a potential

later realized in U nited States v. Booker, 543 U.S. 220 (2005) — the district court

presciently proposed an identical alternative non-Guidelines sentence of

fifty-seven months. M s. M artinez-Jimenez timely filed a notice of appeal from

her sentence.




      7
        The district court memorialized its oral ruling in a written memorandum
opinion, stating that “[t]he letter from the Supreme Court of the State of New
York, which w as signed by the C ounty Clerk, coupled w ith the N CIC record
listing the conviction at issue, is sufficient to establish, by a preponderance of
evidence, the prior conviction [listed in paragraph twenty-two].” United States v.
M artinez-Jimenez, No. CR 04-1115, 2004 W L 3541202, at *4 (D.N.M . Nov. 18,
2004) (unpublished).

                                         -6-
                                II. D ISC USSIO N

      A . Issue on app eal

      On appeal, M s. M artinez-Jimenez objects only to the district court’s use of

the conviction in paragraph twenty-two to increase her criminal history score by

three points and thus to raise her criminal history category to V. She does not

challenge the other convictions used by the district court in calculating her

criminal history category, nor does she attack any other aspect of her conviction

or sentence. 8 Furthermore, her challenge to the conviction in paragraph

twenty-two is simply that the fact of conviction was insufficiently proven; she

does not claim on appeal that the conviction, if sufficiently proven, was

constitutionally infirm.

      At bottom, then, this appeal will determine only whether M s. M artinez-

Jimenez should have been allocated seven criminal history points instead of

ten — and therefore whether she should have been sentenced using a criminal

history category of IV instead of V . See U .S.S.G. § 5A. W e note that M s.

M artinez-Jimenez’s sentence of fifty-seven months w ould be a permissible

Guidelines sentence regardless of which criminal history category is used: it

would be the high end of the range using category IV (46–57 months) and the low




      8
       She does not, for example, claim that her sentence is unconstitutional
under the Supreme Court decision in Booker, 543 U.S. 220.

                                        -7-
end using category V (57–71 months). N onetheless, that fact does not eliminate

the need to address M s. M artinez-Jimenez’s claim of error. See United States v.

Brown, 316 F.3d 1151, 1159 (10th Cir. 2003) (“W here the sentencing error

caused an increase in the applicable adjustment level, the fact that guideline

ranges overlap does not make a plain error harmless.”) (quotation omitted); see

also United States v. Knight, 266 F.3d 203, 207 (3d Cir. 2001) (holding that “the

application of an incorrect guideline range resulting in a sentence that is also

within the correct range [presumptively] affects substantial rights”). Although the

district court proposed an identical alternative sentence in case the Guidelines

were found unconstitutional, it did not indicate that it would have imposed an

identical sentence if M s. M artinez-Jimenez’s criminal history category was IV

instead of V. See United States v. Urbanek, 930 F.2d 1512, 1516 (10th Cir. 1991)

(“[W]e cannot agree . . . that no remand is required simply because the sentence

imposed w as within either of two arguably applicable Guideline ranges. Unless

the district court makes it clear during the sentencing proceeding that the sentence

would be the same under either of the applicable Guideline ranges, we are

compelled to remand for resentencing when . . . an improper [Guidelines

calculation] was applied.”) (citations omitted); Alaniz v. United States, 351 F.3d

365, 368 (8th Cir. 2003) (holding that a sentence falling within an area of overlap

between correct and incorrect Guidelines ranges is “unreviewable only if the



                                         -8-
district court, at the time of sentencing, states unequivocally that it would impose

the same sentence with or without the challenged calculation”); Knight, 266 F.3d

at 208. Therefore we must address M s. M artinez-Jimenez’s challenge to the

district court’s decision.

      B . Standard of review

      “The district court’s factual findings at sentencing are reviewed for clear

error, while its interpretation of the Sentencing Guidelines is a question of law

reviewed de novo.” United States v. Simpson, 94 F.3d 1373, 1380 (10th Cir.

1996). Because the only challenge here is to the district court’s factual finding

that M s. M artinez-Jimenez was convicted of attempted criminal possession of a

controlled substance, our review is for clear error. W e will reverse for clear error

“only if the district court’s finding was without factual support in the record or

we are left with the definite and firm conviction that a mistake has been made.”

United States v. Cernobyl, 255 F.3d 1215, 1221 (10th Cir. 2001) (quotation

omitted).

      C . A nalysis

      “W henever a prior conviction is relevant to sentencing, the government

must establish the fact of that conviction by a preponderance of the evidence.”

United States v. Cooper, 375 F.3d 1041, 1052 (10th Cir. 2004). M s. M artinez-

Jimenez argues that the government failed to prove by a preponderance of the



                                         -9-
evidence that she w as convicted of the offense listed in paragraph twenty-two

because the NCIC report and the letter lack “sufficient indicia of reliability to

support [their] probable accuracy.” U.S.S.G. § 6A1.3(a); see also United States v.

Beaulieu, 893 F.2d 1177, 1180 (10th Cir. 1990) (“The Guidelines expressly allow

the use of any reliable information.”) (emphasis altered). W e disagree and

conclude that the district court did not clearly err in finding that the evidence

establishing her prior conviction was sufficiently reliable.

      “[T]he National Crime Information Center computer system (‘N CIC’) . . . is

a national criminal records data system administered by the Federal Bureau of

Investigation. NCIC contains criminal history information, including outstanding

warrants, and is available to police departments nationwide.” Case v. Kitsap

C ounty Sheriff’s D ep’t, 249 F.3d 921, 923 (9th Cir. 2001) (citation omitted). As

testified to by the probation officer in this case, information is entered into the

NCIC based on a suspect’s fingerprints taken at the time of arrest.

      M s. M artinez-Jimenez has never argued that she is not the person referred

to in the NCIC report that lists her alleged prior narcotics conviction. Nor has

she put on any evidence tending to show that the alleged conviction never

occurred. Rather, she merely argues — without citing any case to have so held —

that the NCIC report is insufficiently reliable to be used to increase her criminal

history category.



                                         - 10 -
      The Eighth Circuit has recently approved of using an NCIC report to

establish a prior conviction for sentencing purposes. In United States v. Urbina-

M ejia, 450 F.3d 838 (8th Cir. 2006), the sentencing court had applied a

sixteen-level enhancement because the defendant had previously been convicted

of a crime of violence. Id. at 839. The defendant challenged the enhancement on

appeal, claiming that the government had not proven that he was the same person

who was convicted of the earlier crime. Id. The Eighth Circuit explained that

      Johnson, the PSR author, testified that the [earlier] convictions were
      . . . in the NCIC database, which is based on fingerprint identification.
      Johnson explained that during the five years in which he prepared over
      200 PSR s, he knew of one instance where the NCIC report attributed a
      conviction to the wrong person. He believed this was simply “input
      error,” and after it was brought to the FBI’s attention, the fingerprint
      analysis helped correct the mistake.

Id. The Eighth Circuit concluded that the sentencing court did not clearly err by

relying on the NCIC report to establish the prior conviction:

      During the past five years, Johnson experienced one inaccurate NCIC
      report of over 200, and that was due to input error, not a fingerprint
      mistake. W hile U rbina-M ejia is entitled to put the government to its
      burden, he provides no evidence that the NCIC report is unreliable.
      Given the testimony and evidence, the district court found the
      probability of a mistake was low, and that the NCIC report had
      sufficient indicia of reliability to support its probable accuracy. . . .
      [T]he district court did not clearly err in finding by a preponderance of
      the evidence that Urbina-M ejia had [been convicted of the prior
      offense.]

Id. at 840; cf. United States v. M cDonald, 606 F.2d 552, 553-54 (5th Cir. 1979)

(stating in the context of probable cause to arrest that “the cases uniformly

                                        - 11 -
recognize that NCIC printouts are reliable enough to form the basis for the

reasonable belief which is needed to establish probable cause”).

      Persuasive unpublished opinions from this and other circuits have similarly

approved use of NCIC reports to establish past convictions, at least in the absence

of any evidence indicating that the reports are unreliable. For example, in United

States v. M adrid-Flores, 129 F. App’x 401 (10th Cir. 2005) (unpublished), the

defendant “argued through counsel at sentencing that he had not committed one of

the prior crimes enumerated in the PSR, for which he received one criminal

history point.” Id. at 402. W e noted, however, that “the probation officer

represented to the court that a records check was performed based on NCIC

fingerprint comparisons and the records indicated that [the defendant] did in fact

commit the prior crime at issue” and that the defendant “offered no evidence to

the contrary.” Id. W e therefore concluded that “[t]he district court thus did not

err in finding that [the defendant] committed the prior crime.” Id. Similarly, in

United States v. Dyer, No. 05-15322, 2006 W L 1735949 (11th Cir. June 23, 2006)

(unpublished), the defendant argued that the sentencing court erred by relying on

an NCIC report to include an earlier conviction in his criminal history. Id. at *1.

The Eleventh Circuit concluded that “[b]ecause Defendant offered no evidence

indicating that the NCIC report was unreliable . . . , it was not clearly erroneous

for the district court to rely on the N CIC report in determining Defendant’s



                                         - 12 -
criminal history category.” Id. Other circuits have come to similar conclusions.

See United States v. Bates, No. 99-11382, 2000 W L 1835092, at *4–*5 (5th Cir.

Nov. 21, 2000) (unpublished) (concluding, where the probation officer’s NCIC

search “linked Bates with each of the convictions listed in the PSR,” that “the

district judge could easily find that the information in the PSR was . . .

sufficiently reliable to link Bates to the other convictions”); United States v.

Smith, No. 91-10317, 1992 W L 132925, at *1–*2 (9th Cir. June 15, 1992)

(unpublished) (concluding, where the government used both the FBI number 9

corresponding to the defendant’s fingerprints and “the National Crime

Information Center computer system to identify [the defendant’s] prior arrests and

convictions,” that “the government dem onstrated the reliability of the N CIC

system when FBI numbers are used” and that “[t]he district judge did not clearly

err in relying on that information in upholding the use of the convictions”).

      Although not specifically mentioning NCIC reports, other cases have also

concluded that computer reports and printouts may be sufficiently reliable for a

sentencing court to use them to establish prior convictions. See, e.g., United

States v. M arin-Cuevas, 147 F.3d 889, 895 (9th Cir. 1998) (“[T]he probation

officer w ho prepared M arin-Cuevas’s Presentence Report obtained his




      9
       Each set of fingerprints is assigned a unique FBI number that can be used
to connect a suspect with other criminal activity.

                                         - 13 -
information from a reliable source[— ]the computerized criminal history— and had

no reason to prevaricate. Therefore, the probation officer’s attestation . . . bore

sufficient indicia of reliability, and the district court did not err in considering it

at sentencing.”) (quotation omitted); United States v. Chacon-Sanchez, 16 F.

App’x 749, 750 (9th Cir. 2001) (unpublished) (same); United States v.

Esparza-Varela, 106 F. App’x 1, 4 (10th Cir. 2004) (unpublished) (finding

computer printouts “sufficiently reliable” to establish prior convictions when the

printouts “contain similar information to that found on a docket sheet”); United

States v. M cGee, No. 99-2054, 1999 W L 704288, at *1 (10th Cir. Sept. 10, 1999)

(unpublished) (concluding that “computer printouts of court docket entries” w ere

sufficiently reliable to establish the prior convictions).

      The district court’s finding in this case was even more conservative than

those held in the above-cited cases not to be clearly erroneous. The court

concluded that the NCIC report, in combination with the letter from the Supreme

Court of New York confirming M s. M artinez-Jimenez’s conviction, was

sufficiently reliable evidence to establish the prior conviction. At least one case

has allowed reliance on a letter from a state court, by itself, to establish a prior

conviction in that court for sentencing purposes. See United States v. Colletti,

984 F.2d 1339, 1345 (3d Cir. 1992) (“[I]t was permissible to rely upon a letter




                                          - 14 -
from a M unicipal Court clerk as proof of one of the prior convictions relied upon

. . . .”).

         W e conclude that the district court’s conclusion that the letter and the

NCIC report together sufficiently established M s. M artinez-Jimenez’s prior

narcotics conviction was not clearly erroneous. W e and other courts have

previously allowed the use of these types of evidence to establish prior

convictions, and the N CIC report and letter are consistent with each other. M s.

M artinez-Jimenez does not argue that she is not the person that is the subject of

the NCIC report and the letter in this case; 1 0 nor has she introduced any evidence

that she was not convicted of the crime listed in the report and letter or any

evidence as to the unreliability of NCIC reports or the letter confirming her

conviction. Under these circumstances, the district court did not clearly err in

finding that the conviction listed in paragraph twenty-two had been sufficiently

established. See United States v. Zuniga-Chavez, No. 04-2293, slip op. at 13,

2006 W L 2753852, — F.3d — (10th Cir. Sept. 27, 2006) (“Because Defendant did

not argue that any persuasive contradictory evidence tended to show that he was

not convicted of the crimes used to enhance his sentence, we conclude that the




         10
         Although the letter gave the name of the person convicted as “Susana
Cabajar,” not M arlene M artinez-Jimenez, Susana Cabajar is listed in the NCIC
report as one of M s. M artinez-Jimenez’s aliases, and she has never argued that it
is not actually a name she has used.

                                           - 15 -
government has met its burden of showing the prior convictions by a

preponderance of the evidence.”); Simpson, 94 F.3d at 1381 (“W e believe that a

certified docket sheet is adequate, absent some contradictory evidence by the

defendant, to establish the existence of a prior conviction for [purposes of

enhancing a sentence under the Guidelines.]” (emphasis added); United States v.

Johnson, 973 F.2d 857, 861 (10th Cir. 1992) (allowing use of “certified copies of

journal entries indicating . . . revocation of probation based on [the challenged

prior conviction]” to establish a prior conviction where the defendant “offered no

proof that contradicted the government’s evidence”). The district court thus

properly allocated ten criminal history points and properly sentenced M s.

M artinez-Jimenez using a criminal history category of V.

                               III. C O N C L U SIO N

      Because M s. M artinez-Jimenez’s only challenge was to the reliability of the

evidence used to establish her prior convictions, and because the district court did

not err in finding that evidence sufficiently reliable, we AFFIRM M s. M artinez-

Jimenez’s sentence.




                                        - 16 -
