Unpublished Disposition, 935 F.2d 277 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 277 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.Manuel ORTEGA-ORTIZ, Defendant-Appellant.

No. 90-10533.

United States Court of Appeals, Ninth Circuit.

Submitted May 29, 1991.* Decided June 4, 1991.

Before HUG, KOZINSKI and LEAVY, Circuit Judges.


MEMORANDUM** 

Manuel Ortega-Ortiz appeals his sentence under the United States Sentencing Guidelines following his guilty plea to re-entry into the United States of a deported alien, in violation of 8 U.S.C. § 1326. Ortega-Ortiz contends that the district court erred by considering two prior California state convictions in calculating his criminal history category. We have jurisdiction under 28 U.S.C. § 1291 and affirm the sentence.

We review de novo whether a prior conviction is covered under the Guidelines, "while factual matters concerning the prior conviction are reviewed for clear error." United States v. Newman, 912 F.2d 1119, 1123 (9th Cir. 1990). The government must prove by a preponderance of the evidence any fact that the sentencing court would use to increase the defendant's criminal history score. Id., 912 F.2d at 1122. Proof of the fact of conviction satisfies the government's initial burden for inclusion of a prior conviction in a criminal history score calculation. Id. The defendant then must prove by a preponderance of the evidence that the prior conviction was constitutionally invalid.1  Id.; see also U.S.S.G. Sec. 4A1.2, comment n. 6.

For a guilty plea to be valid, a defendant must enter his plea knowingly and voluntarily. Boykin v. Alabama, 395 U.S. 238, 242 (1968). We cannot presume a knowing and voluntary waiver of the right to trial by a jury from a silent record. Id., 395 U.S. at 243. However, Boykin does not require specific articulation of the defendant's rights so long as the record affirmatively shows that a defendant entered his guilty plea voluntarily and intelligently. Wilkins v. Erickson, 505 F.2d 761, 763 (9th Cir. 1974); see also Rodriguez v. Ricketts, 798 F.2d 1250, 1252 (9th Cir. 1986), cert. denied, 479 U.S. 1057 (1987); United States v. Freed, 703 F.2d 394, 395 (9th Cir.), cert. denied, 464 U.S. 839 (1983). A signed waiver form and a defendant's representations at the plea hearing that he is knowingly relinquishing his rights constitute an "imposing" barrier to collateral attack. Chizen v. Hunter, 809 F.2d 560, 562 (9th Cir. 1986) (defendant's plea not voluntary where defendant induced to sign waiver based on attorney's misrepresentation). "In the absence of other evidence, the court records which assert that [the defendant] did waive the rights must be presumed to be correct." United States v. Carroll, No. 90-10179, slip op. 5825, 5830 (9th Cir. May 9, 1991).

Here, Ortega-Ortiz challenges two prior convictions by guilty pleas. In 1986, he pleaded guilty to possession of drugs, and in 1987, he pleaded guilty to petty theft. Ortega-Ortiz was not represented by an attorney on either occasion and argues that the deficiencies in the court docket sheets establish the constitutional infirmity of both guilty pleas.2 

Nevertheless, Ortega-Ortiz completed a waiver form for each plea. Cf. Chizen, 809 F.2d at 563. On each form, he indicated that he was waiving his constitutional right to counsel, to jury trial, to confrontation of witnesses and to remain silent.3  Ortega-Ortiz failed to support his claim by not submitting an affidavit asserting the involuntariness of his plea, and court transcripts were not available. See Carroll, No. 90-10179, slip op. at 5830.

Although it might appear that Ortega-Ortiz checked-off the boxes in a random manner, an interpreter was present both times to explain the plea form to Ortega-Ortiz. In particular, during the 1987 proceedings, Ortega-Ortiz was advised of his rights through an interpreter before entering his guilty plea. One day later, the same interpreter explained the waiver form to Ortega-Ortiz before he was sentenced. It appears that Ortega-Ortiz was informed of his rights on numerous occasions and voluntarily chose to waive his rights upon entering his guilty plea. See Butcher, 926 F.2d at 818.

Therefore, in the absence of specific testimony or other evidence concerning Ortega-Ortiz's lack of understanding, Ortega-Ortiz has not satisfied his burden of proving the invalidity of these convictions. See Newman, 912 F.2d at 1124.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Ortega-Ortiz argues that " [t]he defendant is not required to demonstrate that an uncounseled conviction is constitutionally invalid." Appellant's Reply Brief at 4 (emphasis added). He claims, without legal support, that the burden shifts to the government to show that the defendant knowingly waived his or her rights

Ortega-Ortiz misconstrues our rule that " [w]here the record is silent the burden shifts to the Government to prove that the waiver was voluntarily and intelligently made." United States v. Butcher, 926 F.2d 811, 817 (9th Cir. 1991). Here, the record is not "silent" and thus, Ortega-Ortiz shoulders the burden of establishing the unconstitutionality of his guilty pleas.

 2

The 1986 docket sheet indicates that Ortega-Ortiz was advised of his rights at arraignment en masse without an interpreter. On the same day, Ortega-Ortiz entered his guilty plea and the docket sheet indicated that he waived his rights. The person completing the docket sheet failed to check-off certain boxes at arraignment. Ortega-Ortiz argues that the failure to check these boxes suggests an involuntary waiver

The 1987 docket sheet indicates that Ortega-Ortiz was advised of his rights at arraignment with the aid of an interpreter, and subsequently entered a guilty plea. One day later, Ortega-Ortiz completed a plea form waiving his rights and the court sentenced him. Ortega-Ortiz argues that the waiver form could not operate retroactively to validate the guilty plea entered one day before.

 3

Ortega-Ortiz is illiterate and speaks Spanish only. He placed an "X" in the boxes corresponding to the waiver of each constitutional right