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U.S. v. Martinez

United States Court of Appeals, Ninth Circuit
Aug 14, 2003
71 F. App'x 764 (9th Cir. 2003)

Opinion


71 Fed.Appx. 764 (9th Cir. 2003) UNITED STATES of America, Plaintiff--Appellee, v. Jose MARTINEZ, Jr., Defendant--Appellant. No. 03-30064. D.C. No. CR-02-00083-EJL. United States Court of Appeals, Ninth Circuit. August 14, 2003

Submitted July 21, 2003.

This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Appeal from the United States District Court for the District of Idaho, Edward J. Lodge, District Judge, Presiding.

Before LEAVY, HAWKINS, and RAWLINSON, Circuit Judges.

MEMORANDUM

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

Jose Martinez appeals the 211-month sentence imposed following his guilty plea conviction of possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1), possession of a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A), and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Martinez argues that the district court erred by including a conviction obtained without counsel in calculating his criminal history under the Sentencing Guidelines. We disagree. We have held that "[a] defendant must prove the invalidity of a prior conviction by a preponderance of the evidence [,]" and that to carry this burden the defendant "must make an affirmative showing ... that the prior conviction is invalid[.]" United States v. Dominguez, 316 F.3d 1054, 1056-57 (9th Cir.2003) (internal quotations omitted). Here, Martinez argues that his waiver in a prior case was invalid, but cites no evidence in support of this contention. We conclude that, in these circumstances, he has failed to sustain his burden. Id.; United States v. Allen, 153 F.3d 1037, 1041 (9th Cir.1998).

Martinez also argues that the district court erred by considering the methamphetamine found in his car as relevant conduct under the Sentencing Guidelines. United States v. Fox, 189 F.3d 1115, 1118 (9th Cir.1999). We disagree. The preponderance of the evidence, including the information

Page 765.

provided by the informant and the location of the drugs, supports the district court's conclusion that the methamphetamine was relevant conduct for purposes of the Sentencing Guidelines. United States v. Asagba, 77 F.3d 324, 325-26 (9th Cir.1996) (district court's factual findings must be supported by a preponderance of the evidence).

AFFIRMED.


Summaries of

U.S. v. Martinez

United States Court of Appeals, Ninth Circuit
Aug 14, 2003
71 F. App'x 764 (9th Cir. 2003)
Case details for

U.S. v. Martinez

Case Details

Full title:UNITED STATES of America, Plaintiff--Appellee, v. Jose MARTINEZ, Jr.…

Court:United States Court of Appeals, Ninth Circuit

Date published: Aug 14, 2003

Citations

71 F. App'x 764 (9th Cir. 2003)