*

Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 5, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-50222

Summary Calendar

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus

PABLO DERAS-RODRIGUEZ, also known 

as Pablo Devas-Rodriguez, 

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:04-CR-667-1

--------------------

Before KING, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Pablo Deras-Rodriguez (Deras) appeals his

guilty-plea conviction of illegal re-entry after deportation, for

which he received a 70-month sentence and a three-year term of

supervised release. Deras contends that the district court erred

in relying on disputed Massachusetts convictions to enhance his

offense level and his criminal history score. He argues that the
2

district court misallocated the burden of proof by requiring him,

when objecting to the Presentence Report (PSR), to show that the

report of the convictions set forth in the PSR was in error. Deras

asks that the matter be remanded to the district court so that it

may apply the correct burden of proof. 

“[T]he party seeking an adjustment in the sentence level must

establish the factual predicate justifying the adjustment.” United

States v. Alfaro, 919 F.2d 962, 965 (5th Cir. 1990). In

determining whether the government has carried its burden, the

district court may generally rely on any information contained in

the PSR that has sufficient indicia of reliability to support its

probable accuracy. See United States v. Vital, 68 F.3d 114, 120

(5th Cir. 1995). The defendant has the burden of demonstrating

that the facts contained in the PSR are inaccurate. United States

v. Lage, 183 F.3d 374, 383 (5th Cir. 1999). “In making fact

findings pursuant to the sentencing guidelines, a district court

need only be convinced by a preponderance of the evidence.” United

States v. McKinney, 53 F.3d 664, 677 (5th Cir. 1995). 

We have reviewed the transcripts of the sentencing hearings as

well as the Massachusetts records submitted to prove Deras’s prior

convictions. We are satisfied that the district court correctly

allocated the burden of proof and that there was sufficient
3

evidence to prove each of Deras’s challenged convictions.

See Alfaro, 919 F.2d at 965. 

Deras asserts that the district court misinterpreted U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) in determining that his 1999 conviction of

assault and battery was a crime of violence warranting a 16-level

enhancement. As the district court determined, however, the

enhancement was also supported by Deras’s 1997 Massachusetts

assault conviction, which meets the definition of a crime of

violence. See United States v. Garza-Lopez, 410 F.3d 268, 273-74

(5th Cir.), cert. denied, 126 S. Ct. 298 (2005); Commonwealth v.

Gorassi, 733 N.E.2d 106, 110 (Mass. 2000); § 2L1.2, comment.

(n.1(B)(iii)). As the 16-level enhancement pursuant to U.S.S.G. §

2L1.2(b)(1)(A)(ii) was independently supported by Deras’s 1997

assault conviction, it is unnecessary to reach his claim regarding

the enhancement based on the 1999 assault and battery conviction.

See United States v. Garcia, 917 F.2d 1370, 1376 (5th Cir. 1990).

Deras also contends that his 70-month sentence violates due

process because it exceeds the maximum sentence for a violation of

8 U.S.C. § 1326(a) as charged in the indictment. His contention is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235

(1998), in which the Supreme Court held that treatment of prior

convictions as sentencing factors in § 1326(b)(1) and (2) is

constitutional. Although Deras asserts that today a majority of
4

the Supreme Court would consider Almendarez-Torres to be

incorrectly decided in light of Apprendi v. New Jersey, 530 U.S.

466 (2000), “[t]his court has repeatedly rejected arguments like

the one made by [Deras] and has held that Almendarez-Torres remains

binding despite Apprendi.” United States v. Garza-Lopez, 410 F.3d

268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Deras

concedes as much, raising the argument only to preserve it for

further review. 

The sentence imposed by the district court is affirmed, and

the government’s motion to seal its motions to supplement the

record on appeal and the corresponding supplemental records is

granted.

SENTENCE AFFIRMED; SEALING MOTION GRANTED.