from the United States District Court for the Middle District
of Florida D.C. Docket No. 8:15-cr-00520-RAL-AEP-1
ED CARNES, Chief Judge, TJOFLAT, and WILLIAM PRYOR, Circuit
Luis Alicea pleaded guilty to three counts of distributing
controlled substances, 21 U.S.C. § 841(a)(1) and
(b)(1)(c), one count of possessing with intent to distribute
controlled substances, id., and one count of being a
felon in possession of a firearm, 18 U.S.C. § 922(g).
Alicea contends that the court erred in determining his base
offense level and in calculating his criminal history score.
district court determined that Alicea's base offense
level was 20 because he committed the § 922(g) offense
after previously being convicted of a controlled substance
offense. U.S.S.G. § 2K2.1(a)(4)(A). Alicea argues that
the government did not prove that he was convicted of a
controlled substance offense. We review the district
court's factual findings for clear error. United
States v. Robertson, 493 F.3d 1322, 1329-30 (11th Cir.
2007). A finding is clearly erroneous where, after reviewing
all the evidence, we are "left with the definite and
firm conviction that a mistake has been committed."
Id. at 1330.
presentence investigation report states that in 2006 Alicea
was convicted of the criminal sale of a controlled substance
(heroin) on school grounds. Alicea objected to the PSR
because, according to him, there was insufficient evidence to
support the fact of that conviction. In response, the
probation officer produced a certificate of disposition from
the "Supreme Court of the State of New York, Bronx
County, " signed by the court clerk, stating:
I hereby certify that it appears from an examination of the
records on file in this office that on 08/14/2006 the above
named defendant was convicted of the crime(s) below before
Justice Davidowitz, Edward then a justice of this court.
CRIMINAL SALE CONTOL [sic] SUB - SCHOOL GROUNDS PL 220.44 02
"above named defendant" is identified on the
certificate as "Alicea, Jorge."
acknowledges that the government need only prove the fact of
his conviction by a preponderance of the evidence, see
United States v. Rodriguez, 398 F.3d 1291, 1296 (11th
Cir. 2005), and that such proof need not be admissible,
U.S.S.G. § 6A1.3(a). Yet he asserts that the certificate
is insufficient to prove the fact of his conviction because
of its "dubious wording, " because it is signed
"by an unidentified court clerk, " and because it
lists a birthdate of 4/23/86 instead of
New York law, "[a] certificate issued by a criminal
court, or the clerk thereof, certifying that a judgment of
conviction against a designated defendant has been entered in
such court, constitutes presumptive evidence of the facts
stated in such certificate." N.Y. Crim. Proc. Law §
60.60(1). Although we have not addressed whether a New York
certificate of disposition is sufficient to establish the
fact of a defendant's prior conviction, the Second and
Fifth Circuits have held as much. See United States v.
Green, 480 F.3d 627, 632 (2d Cir. 2007) ("[A]
certificate [of disposition] . . . constitutes presumptive
evidence of the facts stated in such certificate.")
(emphasis omitted) (quoting N.Y. Crim. Proc. Law §
60.60(1)); United States v. Neri-Hernandes, 504 F.3d
587, 592 (5th Cir. 2007) ("[A] Certificate of
Disposition is admissible to determine the nature of a prior
conviction and has sufficient indicia of reliability for the
court to rely on it to establish this fact.").
that persuasive authority, we are not "left with the
definite and firm conviction" that the district court
erred by relying on the certificate of disposition to find
that Alicea had been convicted of a controlled substance
offense. See Robertson, 493 F.3d at 1329-30. As a
result, the district court did not clearly err in applying a
base offense level of 20. U.S.S.G. § 2K2.1(a)(4)(A).
also contends that the district court erred in calculating
his criminal history score. He argues that the government
failed to provide reliable evidence to prove his three prior
New York convictions for the sale of a controlled substance
on school grounds, misdemeanor possession of a controlled
substance, and misdemeanor possession of marijuana. Had the
district court disregarded those convictions, Alicea asserts,
he would have received three fewer criminal history points
and his criminal history category would have been one
category lower. As noted earlier, we review only for clear
error the district court's factual determinations.
See Robertson, 493 F.3d at 1329-30.
already explained that the district court did not clearly err
by finding that Alicea was convicted of selling heroin on
school grounds. Nor did it err with respect to the other two
New York convictions. The district court accepted the
probation officer's undisputed notation that both
convictions bore an identification number identical to the
one in Alicea's National Crime Information Center report.
And although the arrests in those cases were made under the
names George Alicea and Joshua Alicea, the NCIC report
indicates that those names are Alicea's known aliases.
Given that evidence, the district court did not clearly err
by finding that Alicea had been convicted of those offenses.
even if the district court did err with respect to those New
York convictions, any such error was harmless. See United
States v. Monzo, 852 F.3d 1343, 1351 (11th Cir. 2017).
Section 4A1.1(c) of the Guidelines provides that a defendant
receives one criminal history point for each prior conviction
that does not receive criminal history points under either
§ 4A1.1(a) or (b). A defendant may receive no more than
four points under § 4A1.1(c). Alicea had six qualifying
convictions under § 4A1.1(c): the three New York
convictions discussed above and three Florida convictions
that he does not challenge on appeal. Consistent with §
4A.1(c), Alicea received only four criminal history points
for those convictions. Even excluding the two points assessed
for the New York misdemeanors, Alicea's criminal history
score would remain the same - he ...