Unpublished Disposition, 940 F.2d 669 (9th Cir. 1991)

MEMORANDUM^** 

Nicholas Gonzales appeals his 210-month sentence imposed by the district court under the Sentencing Guidelines. Gonzales challenges his classification as a career criminal. He argues the district court improperly included a 1969 manslaughter conviction as one of the requisite offenses. We affirm.

Gonzales was charged with five counts of unarmed bank robbery, in violation of 18 U.S.C. § 2113(a). Pursuant to a plea bargain, Gonzales pled guilty to two counts. The presentence report classified Gonzales as a career offender based on two prior convictions, a 1969 manslaughter conviction and a 1979 bank robbery conviction. Gonzales objected to this classification, claiming that the 1969 conviction was constitutionally invalid.

In support of Gonzales' objection, he offered two items of evidence: (1) a silent minute order with respect to the advisement of his constitutional rights in the 1969 hearing, and (2) a statement by Gonzales claiming, "I do not remember being advised of my constitutional rights: Specifically, I do not recall being told that I had the right against self-incrimination, to confront my witnesses or to have a jury trial by either my lawyer or the judge."

The district court held a hearing on this matter at which the Government called Judge Older, the judge who presided in Gonzales' 1969 case. Judge Older testified regarding his custom and practice when accepting pleas, although he could not testify regarding the specifics of Gonzales' case. His customary practice met the constitutional requirement.

For purposes of determining a defendant's criminal history category, the Government has the initial burden of introducing the prior conviction. United States v. Newman, 912 F.2d. 1119, 1122 (9th Cir. 1990). This burden is satisfied by proving the defendant was in fact convicted. Id. The burden next shifts to defendant to establish the constitutional invalidity of the conviction. The defendant must show the conviction was invalid by a preponderance of the evidence. Id. The district court's conclusion that Gonzales has not met his burden of proof is not clearly erroneous. Judge Older's testimony was sufficient to rebut Gonzales' introduction of his statement and the silent record.

AFFIRMED.