Opinion
The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Following federal sentencing proceeding in the United States District Court for the District of Alaska, James K. Singleton, Chief District Judge, defendant appealed. The Court of Appeals held that: (1) Government was not required to prove defendant's prior felony convictions beyond a reasonable doubt; (2) refusing to order the Government to produce court transcripts from defendant's prior convictions was not an abuse of discretion; (3) defendant's prior offenses were properly consolidated in computing his criminal history score; and (4) refusal to depart from the Sentencing Guidelines was not reviewable.
Affirmed.
Appeal from the United States District Court for the District of Alaska, James K. Singleton, Chief District Judge, Presiding.
Before SCHROEDER, T.G. NELSON, and SILVERMAN, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
I. PROOF OF PRIOR CONVICTIONS Apprendi did not overrule Almendarez-Torres. Under Almendarez-Torres, the Government was not required to prove Nunez's prior felony convictions beyond a reasonable doubt.
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). See United States v. Arrellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.2001).
Arellano-Rivera, 244 F.3d at 1127 (quoting United States v. Pacheco-Zepeda, 234 F.3d 411, 415 (9th Cir.2000)).
By their terms, the Federal Rules of Evidence do not apply at sentencing. Thus, the district court did not err in allowing the Government to prove Nunez's two California convictions with certified copies of court records which were not entitled "Judgment of Conviction." Moreover, even if it had erred, that error would be harmless. Subtracting the six criminal history points that are arguably attributable to these two convictions would still leave Nunez with a criminal history of thirteen. Thus, his criminal history category of VI would remain unchanged.
See, e.g., United States v. Allen, 153 F.3d 1037, 1045 (9th Cir.1998) (holding that error in criminal history calculation was harmless because correcting it would have no impact on the guideline range calculation); United States v. Sanders, 41 F.3d 480, 485 (9th Cir.1994) (same).
See United States Sentencing Commission, Guidelines Manual, Ch.5, Pt.A (Nov.2000).
II. PRODUCTION OF COURT TRANSCRIPTS
The district court did not abuse its discretion in refusing to order the Government to produce court transcripts from Nunez's prior convictions. As the district court took pains to explain, if the records of conviction the Government produced are inaccurate, Nunez must seek correction from the states that allegedly committed the errors. He may not collaterally attack his state convictions in a federal sentencing proceeding.
United States v. Chon, 210 F.3d 990, 994 (9th Cir.), cert. denied, Chae Wan Chon v. United States, 531 U.S. 910, 121 S.Ct. 259, 148 L.Ed.2d 187 (2000).
Custis v. United States, 511 U.S. 485, 497, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994).
III. OFFENSE CONSOLIDATION UNDER U.S. S.G. § 4A1.2
Because Nunez did not object to the district court's tally of his offenses, we review his claim that the district court failed to properly consolidate prior offenses for plain error. "Prior sentences are not considered related if they were for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense)." Nunez's two Rhode Island drug offenses and his three Florida drug offenses were all the product of separate arrests. The fact that Nunez repeatedly committed drug trafficking crimes in the same two states in a short period of time does not inure to his benefit.
United States v. Matsumaru, 244 F.3d 1092, 1102 (9th Cir.2001).
U.S. S.G. § 4A1.2, comment. (n.3).
IV. FAILURE TO DEPART DOWNWARD
"Purely discretionary decisions authorized by the Guidelines, such as the refusal to depart from the Sentencing Guidelines or the choice of sentence within a guideline range, are not reviewable on appeal."
United States v. Khaton, 40 F.3d 309, 311 (9th Cir.1994).
Page 722.
V. INEFFECTIVE ASSISTANCE OF COUNSEL
"We generally do not hear cases of ineffective assistance of counsel on direct appeal, and there is no reason to diverge from this practice here."
United States v. Gaither, 245 F.3d 1064, 1069 (9th Cir.2001) (internal citation omitted).
AFFIRMED.