                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JUN 10 2004
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,                     No. 03-2279
           v.                                           (D. New Mexico)
 MARTIN ESPARZA-VARELA aka                          (D.C. No. CR-03-984-JP)
 Gene Zamora,

                Defendant - Appellant.


                              ORDER AND JUDGMENT          *




Before TACHA, Chief Judge, ANDERSON and BALDOCK , Circuit Judges.




       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Martin Esparza-Varela pled guilty to one count of reentry into the United

States following deportation and following a prior conviction for an aggravated

felony, in violation of 8 U.S.C. § 1326(a)(1), (a)(2) and (b)(2). He was sentenced

to twenty-four months’ imprisonment, followed by two years of unsupervised

release. Mr. Esparza-Varela appeals his sentence, arguing the government failed

to provide sufficient reliable evidence of two prior convictions that were counted

in the calculation of his criminal history category. For the reasons discussed

below, we affirm.



                                 BACKGROUND

      Mr. Esparza-Varela was arrested at a United States Border Patrol

checkpoint near Las Cruces, New Mexico, on March 20, 2003, after a background

check revealed that he had been deported to Mexico on November 12, 2001,

following his conviction on a charge of attempted forgery, an aggravated felony

under 8 U.S.C. § 1101(a)(43). Without entering into a plea agreement, he pled

guilty to the sole charge brought against him, illegal reentry in violation of 8

U.S.C. § 1326(a)(1), (a)(2), and (b)(2).

      The presentence report (“PSR”) prepared by the U.S. Probation Office

calculated a criminal history category of IV for Esparza-Varela, based in part on a

prior conviction for battery domestic violence in the municipal court of Las


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Vegas, Nevada, on January 2, 2001, and a prior conviction for battery in the Clark

County Justice Court in Las Vegas, Nevada, on February 15, 2001. Together with

the calculated offense level of 13, this yielded a sentencing range of twenty-four

to thirty months. Among the other details included in the PSR were the following

facts: that Esparza-Varela was born on August 14, 1978, in Ciudad Juarez,

Chihuahua, Mexico; that he lived in Las Vegas, Nevada, from 1991 to 2001; that

he married Bonnie Lenore Campos in Las Vegas in 1998; and that he has a tattoo

depicting the name “Bonnie” in Old English on his lower abdomen.

      Esparza-Varela objected to the PSR’s inclusion of three criminal history

points based on the two battery convictions, arguing that the computer printouts

indicating the convictions were not reliable evidence. He argued the convictions

should therefore not be included in the criminal history calculation, and thus his

category should be reduced from IV to III, yielding a sentencing range of eighteen

to twenty-four months.

      At the subsequent sentencing hearing, in response to Esparza-Varela’s

objection that he had not received copies of the probation officer’s evidence of

these two convictions, the court issued a brief continuance to allow the officer to

produce his evidence. In support of the first conviction, the officer submitted, in

his description, a “computer printout generated by the probation office in Las

Vegas, Nevada,” together with a police report of the arrest. Tr. of Sentencing


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Hr’g at 11, R. Vol. IV. The printout indicated the defendant, listed as “Esparza,

Martin,” had pled guilty as charged to battery domestic violence. The police

report had the same “event number” as the printout and recorded the arrestee’s

name as “Esparaza, Martin,” with a birth date of August 14, 1978. The report

further indicated the arrest arose out of a dispute between “Martin Esparaza” and

his wife, “Bonnie Campos.” In support of the second conviction, the officer

submitted a “computer generated court proceedings printout” from the database of

the Las Vegas municipal court, together with a police report of the arrest.   Id.

The printout indicated the defendant, listed as “Esparca, Martin,” entered a plea

of nolo contendere to a charge of battery domestic violence. The police report,

again having the same “event number” as the printout, indicated “Martin Esparca”

had been arrested following a dispute with his ex-wife, “Bonnie Campos,” that

Esparca’s real date of birth was August 14, 1978, and that Esparca had a tattoo of

“Bonn” on his abdomen.

       Reviewing the documents on the bench, the court noted the near identity of

the names of the defendants in the Las Vegas convictions with Esparza-Varela,

and the identical dates of birth. The court asked “whether the defendant seeks to

present any evidence in contradiction of the conclusion that was suggested by the

probation officer.”   Id. at 10. Esparza-Varela made proffers that he had no

recollection of the convictions. The court then made a finding that the two Las


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Vegas convictions “are supported by a preponderance of the evidence,”      id. at 14,

and proceeded to sentence Esparza-Varela in accord with the PSR’s

recommendation.

       On appeal, Esparza-Varela renews his argument that the evidence of the

two Las Vegas convictions was insufficiently reliable and that the government

failed to meet its burden of proof. He also argues he had no reasonable

opportunity to contest the probation officer’s evidence because it was not made

available to him prior to the sentencing hearing.



                                     DISCUSSION

       We review a district court’s factual findings at sentencing for clear error

and its interpretation of the Sentencing Guidelines de novo.     United States v.

Simpson , 94 F.3d 1373, 1380 (10th Cir. 1996).

       Here, we discern no error in the district court’s finding that Esparza-Varela

had two prior battery convictions in Las Vegas and its conclusion that these

convictions were properly included in Esparza-Varela’s criminal history

calculation. “At sentencing, the district court may rely on facts stated in the

presentence report unless the defendant has objected to them.”     United States v.

Shinault , 147 F.3d 1266, 1277 (10th Cir. 1998). However, “[w]hen a defendant

objects to a fact in a presentence report, the government must prove that fact at a


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sentencing hearing by a preponderance of the evidence.”    Id. at 1278; see also

United States v. Torres , 182 F.3d 1156, 1162 (10th Cir. 1999) (holding the

government must show, by a preponderance of the evidence, “whatever facts are

needed to justify adding additional criminal history points” (further quotation

omitted)). The evidence offered need not be admissible under the Federal Rules

of Evidence. Fed. R. Evid. 1101(d)(3). Nevertheless, it must have “sufficient

indicia of reliability to support its probable accuracy.” United States Sentencing

Commission, Guidelines Manual (“USSG”) §6A1.3(a) (Nov. 2002).

      In this case, the evidence produced by the probation officer in response to

Esparza-Varela’s objection was sufficiently reliable. The computer printouts

from the databases of the Las Vegas municipal court and the U.S. probation office

in Las Vegas, though the parties do not refer to them as docket sheets, contain

similar information to that found on a docket sheet. They indicate the history of

court proceedings in both cases, one ending in a guilty plea and one ending in a

nolo contendere plea. The probation office’s assertion that the subject of these

printouts is Esparza-Varela is corroborated by factual details in the accompanying

police reports – the defendant’s name, his date of birth, his residence in Las

Vegas, the name of his wife or ex-wife, and the tattoo.

      Esparza-Varela’s sole quibble with the reliability of these documents

appears to be that they are not certified and are therefore “of uncertain


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provenance,” lacking proof “that they are accurate copies of court or other official

records.” Appellant’s Br. at 13. He cites no authority, however, and we have

found none, requiring such documents to be certified in order to be found reliable.

See, e.g. , Simpson , 94 F.3d at 1381 (holding “a certified docket sheet is adequate,

absent some contradictory evidence by the defendant, to establish the existence of

a prior conviction for this sentencing purpose,” but not indicating certification

was necessary to the adequacy holding). The presence of supporting

documentation from government sources, despite its lack of certification, is

sufficient, we believe, to distinguish this case from   United States v. Floyd , 343

F.3d 363 (5th Cir. 2003), cited by Esparza-Varela, where a district court’s

criminal history finding was overturned because “[t]he only evidence . . . from

which the district court could have concluded that [the defendant] had a prior

conviction was the unsworn statements of the probation officer,” and no

“supporting documentation evidencing [the] conviction[] was ever provided.”            Id.

at 373. Compare Shinault , 147 F.3d at 1277-78 (upholding prior conviction

findings based on charging documents citing names other than the defendant’s,

together with the probation officer’s testimony that the names were aliases of the

defendant).

       We conclude that the government met its burden of proof and reject

Esparza-Varela’s claim that the district court improperly shifted the burden to


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him. “Once the government had established the fact of [a] prior conviction, the

burden then shifted to [the defendant] to challenge its validity.”   United States v.

Ortiz , 63 F.3d 952, 955 (10th Cir. 1995). We also reject Esparza-Varela’s claim

that he had insufficient opportunity to mount such a challenge because he did not

see the probation office’s documentation until the sentencing hearing. Esparza-

Varela was made aware of the alleged prior convictions when he received the

PSR. His written objections to the PSR indicate he knew about the alleged prior

convictions and that the probation office was relying on “a computer printout and

not . . . an actual copy of the judgment and conviction.” Attach. to Second

Addendum to PSR, R. Vol. II.        After the documents were produced at the

sentencing hearing, the court gave Esparza-Varela an opportunity to contradict the

probation office’s claim, but Esparza-Varela offered no evidence indicating the

documentation was unreliable or the information contained therein was

inaccurate, nor does he suggest on appeal that such evidence exists. Although the

probation office should have provided the documents to the defense earlier, its

failure to do so does not, we think, warrant reversal under these circumstances.

Compare United States v. Wise , 990 F.2d 1545, 1549-50 (10th Cir. 1992) (holding

defendant’s due process rights were violated where the district court did not allow

the defendant to question the probation officer at the sentencing hearing regarding

the factual basis for his conclusions).


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We therefore uphold the district court’s criminal history calculation.



                           CONCLUSION

For the foregoing reasons, the district court’s sentence is AFFIRMED.

                                        ENTERED FOR THE COURT


                                        Stephen H. Anderson
                                        Circuit Judge




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