United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 27, 2013 Decided December 3, 2013 

No. 12-3050 

UNITED STATES OF AMERICA,

APPELLEE

v. 

ALFONSO MARTINEZ-CRUZ, 

APPELLANT

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:10-cr-00336-6) 

Richard K. Gilbert, appointed by the court, argued the 

cause and filed the briefs for appellant 

Nicholas P. Coleman, Assistant U.S. Attorney, argued the 

cause for appellee. With him on the briefs were Ronald C. 

Machen Jr., U.S. Attorney, and Elizabeth Trosman, Assistant 

U.S. Attorney. 

Before: KAVANAUGH, Circuit Judge, and EDWARDS and 

WILLIAMS, Senior Circuit Judges. 
2

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS. 

Dissenting opinion filed by Circuit Judge KAVANAUGH. 

WILLIAMS, Senior Circuit Judge: The defendant, Alfonso 

Martinez-Cruz, pleaded guilty to a single count of conspiracy 

to distribute methamphetamine. At sentencing, he sought to 

qualify for 18 U.S.C. § 3553(f)’s “safety valve,” and in fact 

met all but one criterion, the statute’s requirement that his 

criminal history score under the Sentencing Guidelines be no 

more than one point. 18 U.S.C. § 3553(f)(1). Had he met this 

last criterion, the Sentencing Guidelines would have provided 

for a two-level decrease in the “base offense” level used to 

calculate the Guidelines’ recommended range. U.S.S.G. 

§ 2D1.1(16). That decrease in turn would have shaved twoand-a-half years off the bottom end of the recommended range 

for Martinez-Cruz. But because of a prior driving-under-theinfluence conviction in Gwinnett County, Georgia, for which 

he was on probation at the time of his arrest, his criminal 

history score was in fact three points. The district court 

therefore found him ineligible for the reduction. 

Martinez-Cruz maintains that at the time of his plea to the 

DUI charge he was not properly informed of his right to 

counsel, and thus did not validly waive that right, so that the 

DUI conviction was in violation of the Constitution. 

Accordingly, he says, the plea cannot be used to enhance his 

sentence. U.S.S.G. § 4A1.2 Application Note 6; Burgett v. 

Texas, 389 U.S. 109, 115 (1967). The sole issue presented in 

this case is whether it is permissible under the Due Process 

Clause to require Martinez-Cruz to shoulder not only the 

burden of production in challenging the validity of his prior 

plea, but also the burden of persuasion. We hold that due 

process does not permit this additional burden. 
3

* * * 

At the time of his Georgia arrest, Martinez-Cruz, an 

immigrant from Mexico, had no formal education, spoke no 

English, and could neither read nor write Spanish. He spent 

two days in jail before pleading guilty; in exchange for his 

plea, his sentence was limited to time served and one year’s 

probation. Before pleading, he received a waiver-of-counsel 

form in Spanish that explained his Sixth Amendment rights. 

He printed his name on the form and pleaded guilty. The 

court did not keep a transcript of the plea; it isn’t clear 

whether one ever came into existence. Martinez-Cruz signed 

a judgment form, on which someone at the Georgia court had 

created a box labeled “20.00 TRF” and had checked that box. 

The district court understood the notation to indicate a $20 fee 

for a translator or interpreter, and both sides appear to agree. 

In a pair of affidavits attached to his two sentencing 

memoranda, Martinez-Cruz asserted not only that he was 

illiterate, but also that nobody explained to him the waiver-ofcounsel form, that he did not recall appearing before a judge, 

and that he was absolutely certain that if he did appear before 

a judge, the judge did not conduct an individualized plea 

colloquy of the sort that took place at the time of his 

methamphetamine plea. Absent an explanation of his right to 

counsel that he could understand, Martinez-Cruz argues, a 

waiver of that right could not be “knowing and intelligent,” as 

required by Argersinger v. Hamlin, 407 U.S. 25, 37 (1972). 

At his sentencing in this case, Martinez-Cruz argued that 

in a collateral challenge to an allegedly unconstitutional prior 

conviction the defendant should bear only a burden of 

production to show that the conviction was invalid. He 

submitted that his inability to read the waiver-of-counsel 

form, plus the absence of evidence indicating that his rights 

were otherwise explained to him, created a “fair inference” 
4

that he did not validly waive his right to counsel. That 

inference, he suggested, must shift the burden of persuasion to 

the government. 

The government contended that Martinez-Cruz instead 

bore a burden of persuasion, and that his affidavits failed to 

carry that burden. It is a little unclear what the government 

meant by this. Counsel characterized Martinez-Cruz’s 

statements that he didn’t recall the Gwinnett County 

proceedings but that he was certain there was no 

individualized plea colloquy as “speaking out of both sides of 

his mouth”; so counsel’s theory was different from a claim 

that even if the court heard testimony from Martinez-Cruz and 

believed him there would still be an inadequate basis for 

finding the waiver insufficient. In any event, not taking 

testimony but apparently adopting the government’s 

argument, the district court concluded that Martinez-Cruz 

failed “to establish by a preponderance of the evidence that 

this is not a conviction that he knowingly accepted.” The 

court accordingly assigned Martinez-Cruz three criminal 

history points—making him ineligible for the safety valve—

and sentenced him to 81 months in prison, the bottom of the 

Guidelines range. 

* * * 

Although the Guidelines once addressed the problem of 

potentially invalid prior convictions in the calculation of a 

criminal history score by barring reliance on “[c]onvictions 

which the defendant shows to have been constitutionally 

invalid,” U.S.S.G. § 4A1.2 Application Note 6 (1989); United 

States v. Davenport, 884 F.2d 121, 124 (4th Cir. 1989), later 

amendments adopted a more general formula, saying that the 

Guidelines “do not confer upon the defendant any right to 

attack collaterally a prior conviction or sentence beyond any 

such rights otherwise recognized in law.” U.S.S.G. § 4A1.2 
5

Application Note 6 (1993). The Due Process Clause is of 

course a “right[] otherwise recognized in law,” and therefore 

provides the basis for a collateral attack. See Parke v. Raley, 

506 U.S. 20, 28 (1992). The question before us is whether 

due process requirements are satisfied if the defendant meets a 

burden of production but must then face a burden of 

persuading the court that the prior conviction was secured in 

violation of his right to counsel. (As we’ll soon see, “right to 

counsel” in this context is a term of art that excludes a claim 

of ineffective assistance of counsel.)

The Supreme Court has partially addressed this question. 

In Parke v. Raley, the defendant was convicted of robbery 

and, because he had two prior convictions for burglary, of 

being a “persistent felony offender.” Id. at 22. Under 

Kentucky’s persistent felony offender statute, once the 

government proved the existence of a prior conviction, a 

presumption of regularity attached to that conviction. To 

refute that presumption, the defendant needed to “produce 

evidence that his rights were infringed or some procedural 

irregularity occurred.” Id. at 24. If he produced such 

evidence “the burden shifts back to the government 

affirmatively to show that the underlying judgment was 

entered in a manner that did, in fact, protect the defendant’s 

rights.” Id. at 24. 

Raley asserted that his earlier guilty pleas were not 

knowing and voluntary, and claimed unsuccessfully that due 

process prevented Kentucky from requiring him to bear any 

burden whatsoever, i.e., the state would in every case have to 

prove the validity of a conviction before using it to secure an 

enhanced sentence in a later proceeding. Id. at 25-26. The 

Court disagreed, concluding that in a collateral challenge 

it defies logic to presume from the mere unavailability of 

a transcript (assuming no allegation that the unavailability 
6

is due to government misconduct) that the defendant was 

not advised of his rights . . . . [E]ven when a collateral 

attack on a final conviction rests on constitutional 

grounds, the presumption of regularity that attaches to 

final judgments makes it appropriate to assign a proof 

burden to the defendant. 

Id. at 30-31 (citing Johnson v. Zerbst, 304 U.S. 458, 468-69 

(1938 )). 

The Court did not explain exactly what “proof burden” 

the Constitution permits. As a holding, obviously, Parke does 

no more than uphold the constitutionality of requiring a 

defendant to meet a burden of production. In its discussion, 

the Court reviewed practices in several jurisdictions, with 

some assigning the burden entirely to the government and 

some entirely to the defendant, with various stops in between, 

id. at 32-34, and found that “neither our precedents nor 

historical or contemporary practice compel the conclusion” 

that Kentucky’s rule violated due process, id. at 34. At oral 

argument in our case the government suggested that this 

survey represented some kind of endorsement of the 

jurisdictions placing the whole burden on the defendant. We 

see little basis for that inference. Today we consider how 

heavy a burden may be assigned the defendant—but only in 

cases where the defendant alleges that a prior conviction or 

plea was secured in violation of the right to counsel. 

* * * 

This question presents a tension between two basic 

presumptions of our legal tradition. On the one hand, the 

Supreme Court has repeatedly attached a presumption of 

regularity to final judgments. E.g., id. at 31. That 

presumption applies throughout the law and even when 

constitutional rights are implicated. Id. at 29-30 (citing 
7

Zerbst, 304 U.S. at 464). It has said that “inroads on the 

concept of finality tend to undermine confidence in the 

integrity of our procedures and inevitably delay and impair the 

orderly administration of justice.” Custis v. United States, 

511 U.S. 485, 497 (1994) (quoting United States v. Addonizio, 

442 U.S. 178, 184 n.11 (1979) (internal quotation marks 

omitted)). Whatever the force of that idea, it seems plain that 

resources devoted to reexamination of judgments in old cases 

are unavailable for reaching accurate judgments in new ones. 

Accord Hawkins v. United States, 724 F.3d 915, 918-19 (7th 

Cir. 2013) (recounting evidence of interminable litigation 

delays in Brazil and India and linking delays to the ease of 

case reopening). In Parke the Court invoked the presumption 

of regularity as a backstop to the states’ more direct interest 

“in deterring and segregating habitual criminals.” 506 U.S. at 

27, 31. 

At the same time, the Court has recognized the failure to 

provide counsel as a “unique constitutional defect.” Custis, 

511 U.S. at 496. It has both admonished courts to “indulge 

every reasonable presumption against a waiver of counsel,” 

e.g., Zerbst, 304 U.S. at 464; see also Glasser v. United States, 

315 U.S. 60, 70 (1942), and has given right-to-counsel claims 

a favored position over other possible grounds for collateral 

challenges—even over other Sixth Amendment claims, 

including ineffective assistance of counsel. E.g., Custis, 511 

U.S. at 494-97; Zerbst, 304 U.S. at 467-68. Not only is the 

right to counsel itself fundamental, but its assertion is critical 

to vindicating the other fundamental “rights deemed essential 

for the fair prosecution of a criminal proceeding.” Maine v. 

Moulton, 474 U.S. 159, 169 (1985). 

Anti-recidivist provisions, of course, can extend the 

effects of an invalid conviction, making it the basis for 

progressively more severe penalties. The right to counsel is a 

shield against that result. By radically reducing the risk that a 
8

defendant might be convicted in violation of other rights, it 

helps to forestall such a spiral of error. 

In a case of alleged recidivism, of course, the absence of 

counsel undermines a defendant’s ability to challenge a prior 

conviction. Without defense counsel, the original proceedings 

are far less likely to yield a record that can clearly resolve the 

validity of the prior proceeding. Here, for example, the 

Georgia court did not preserve a transcript of the plea 

proceedings. Nothing in that court’s skimpy record addresses 

Martinez-Cruz’s illiteracy. And there is no indication of what 

services the translator actually—or even typically—

performed. Had a lawyer been assigned, he or she would have 

been available to clarify details that the record left obscure, as 

did the defendant’s attorney in many of the cases on which the 

government relies. E.g., Parke, 506 U.S. at 24. 

In singling out the right to counsel for relatively special 

protection in the recidivist sentencing context, the Court has 

linked that status to the relative “[e]ase of administration” of 

collateral attacks on abridgement of the right to counsel: 

[F]ailure to appoint counsel at all will generally appear 

from the judgment roll itself, or from an 

accompanying minute order. But determination of 

claims of ineffective assistance of counsel, and failure 

to assure that a guilty plea was voluntary, would 

require sentencing courts to rummage through 

frequently nonexistent or difficult to obtain state-court 

transcripts or records that may date from another era, 

and may come from any one of the 50 States. 

Custis, 511 U.S. at 496. The Court therefore refused to extend 

the right to collateral attack at recidivist sentencing from the 

straightforward right to counsel, upheld in Burgett v. Texas, 

389 U.S. 109 (1967), and United States v. Tucker, 404 U.S. 
9

443 (1972), to the sort of rights whose vindication would 

require too much “rummaging” through old and inaccessible 

records. Daniels v. United States, 532 U.S. 374, 382 (2001), 

applies the same distinction. 

 By the same token, in cases where the defendant had no 

counsel for the prior conviction, the only issue will be whether 

he validly waived counsel. If that involves “rummaging,” it is 

only with respect to a relatively narrow issue. 

In Parke the Court noted that when “a defendant 

challenges the validity of a previous guilty plea, the 

government will not invariably, or perhaps even usually, have 

superior access to evidence.” 506 U.S. at 32. It also 

staunchly resisted any notion that one should infer that a 

defendant was not advised of his rights from “the mere 

unavailability of a transcript.” Id. at 30. But Martinez-Cruz 

asks only for a rule that requires the government to take over 

the ultimate burden once a defendant has seriously 

undermined the presumption of regularity—as he did here, by 

showing that he was incapable of understanding the only 

explanation of his rights of which either party is aware. In 

such a case the government’s access to evidence that might 

fill the remaining gap seems quite likely to be superior. 

Here, for example, the government might have introduced 

information on the typical plea practices in Gwinnett County. 

Perhaps, upon handing out the waiver form, the court inquires 

whether a Spanish-speaking defendant can read and, if not, 

requires a translator to read him the form. Or perhaps the 

court staff alerts the judge of the need to conduct a special 

plea colloquy with an illiterate defendant who does not speak 

English. The government might also have secured an 

affidavit from the judge before whom Martinez-Cruz entered 

his plea, stating in some detail what practices were routine at 

the time the plea was made. Such evidence would likely meet 
10

the government’s burden by a preponderance—at least in 

absence of evidence undermining the judge’s account. The 

government implicitly assumed that something along these 

lines took place here; otherwise Martinez-Cruz could not have 

understood his right to counsel. 

Accordingly, we think that the analysis by the Court in 

Parke and kindred cases supports assigning the government 

the ultimate burden of persuasion, but only once the defendant 

produces objective evidence sufficient to support a reasonable 

inference that his right to counsel was not validly waived. 

That evidence must entail more than a silent record, or even 

the defendant’s sworn statement that he was not informed of 

his rights. To carry this burden, the defendant’s evidence 

generally must supply a reason to believe that the court had no 

ordinary procedure capable of apprising him adequately of his 

rights or that the court did not follow its own procedures. 

Here, for example, the Gwinnett County court had a procedure 

for informing literate Spanish-speaking defendants of their 

right to counsel. Martinez-Cruz showed that because he was 

illiterate, this particular procedure was unlikely to truly inform 

him of his rights. 

* * * 

The government urges that “every other Circuit to address 

this issue has held that it is the defendant, not the government, 

that has the burden of proof.” United States Br. 22. The 

dissent makes the same point. But the cases they cite do not 

address the precise issue decided today. 

Several of those cases evaluated claims under the old 

Sentencing Guidelines, in which the defendant raised no 

constitutional argument. The courts there had no need to 

grapple with due process requirements and simply assumed 

the burden was on the defendant all the way. E.g., United 
11

States v. Hoffman, 982 F.2d 187, 190 (6th Cir. 1992); United 

States v. Boyer, 931 F.2d 1201, 1204 (7th Cir. 1991); United 

States v. Davenport, 884 F.2d 121, 123-24 (4th Cir. 1989). 

Others addressed prior convictions for which the defendant 

had counsel. E.g., United States v. Stapleton, 316 F.3d 754, 

756 (8th Cir. 2003); United States v. Gallman, 907 F.2d 639, 

643 (7th Cir. 1990). Our decision does not conflict with any 

of these cases. 

In still others the defendant failed to introduce any 

evidence affirmatively suggesting that he could not have 

validly waived his right to counsel. Thus the First Circuit has 

“read Parke to preclude [the] suggested legal framework that 

would transfer the burden back to the government based on a 

silent record.” United States v. Gray, 177 F.3d 86, 91 (1st 

Cir. 1999) (emphasis added). In a case relied upon by the 

dissent, the same circuit observed: 

Since the number of felony cases where a defendant lacks 

counsel must be small (particularly after Gideon v. 

Wainwright, 372 U.S. 335 (1963)), a sentencing court 

may permissibly infer from the record of the conviction 

that the conviction was not obtained unconstitutionally 

provided the record contains no reason to believe the 

contrary. 

United States v. Wilkinson, 926 F.2d 22, 28 (1st Cir. 1991) 

(emphasis added). But the emphasized proviso does not apply 

here; Martinez-Cruz provided ample reason to suspect that he 

did not validly waive his right to counsel before the Gwinnett 

County court. 

The government also points to United States v. Cooper, 

203 F.3d 1279, 1287 (11th Cir. 2000), as a case placing the 

burden of persuasion entirely on defendant. We read Cooper

quite differently. The Eleventh Circuit recognized that certain 
12

convictions are “presumptively void” for sentencing purposes, 

citing “uncounseled convictions” as the key (and perhaps 

only) example. Id. (quoting United States v. Roman, 989 F.2d 

1117, 1120 (11th Cir. 1993) (en banc) (per curiam)). Once 

the defendant laid a “factual foundation” in support of his 

claim that a conviction was uncounseled, a sentencing court 

must “review this earlier conviction before taking it into 

account.” Id. That procedure—which to be sure is not laid 

out in detail—is consistent with the burden-shifting 

arrangement that we contemplate here. 

The set of cases in which courts used general language 

seeming to place the burden on the defendant, but where the 

defendant did not offer the kind of objective evidence on 

which Martinez-Cruz relies, is very broad. The defendant in 

those cases relied on a silent record or conclusory affidavits, 

or “d[id] not proffer any evidence to support his claim that his 

waivers of counsel were involuntary.” United States v. 

Krejcarek, 453 F.3d 1290, 1297-98 (10th Cir. 2006); United 

States v. Dominguez, 316 F.3d 1054, 1056-57 (9th Cir. 2003); 

United States v. Early, 77 F.3d 242, 245 (8th Cir. 1996); 

United States v. Osborne, 68 F.3d 94, 100-01 (5th Cir. 1995). 

In other instances, the court found that the government’s 

evidence “conclusively demonstrate[d] that [the] . . . waiver of 

counsel was valid,” United States v. Allen, 153 F.3d 1037, 

1042 (9th Cir. 1998); although reciting language placing the 

burden on the defendant, id. at 1041, this finding made such 

language moot. Because those courts had no occasion to 

address the sort of facts presented here, the government’s 

suggested conflict is at most one of words, not of holdings. 

* * * 

We remand to the district court so that it may re-examine 

the evidence introduced by Martinez-Cruz. If, as seems 

apparent from the record before us, Martinez-Cruz has 
13

introduced objective evidence sufficient to support a 

reasonable inference that he did not validly waive the right to 

counsel, then the government must, by a preponderance of the 

evidence, persuade the court that the waiver was in fact valid. 

If Martinez-Cruz has not introduced such evidence, then his 

prior conviction is presumed valid and the court may sentence 

him as it did before. 

The judgment of the district court is therefore vacated and 

the case remanded. 

So ordered. 
KAVANAUGH, Circuit Judge, dissenting: As a lower 

court in a system of absolute vertical stare decisis headed by 

one Supreme Court, it is essential that we follow both the 

words and the music of Supreme Court opinions. This case is 

controlled by at least the music, if not also the words, of the 

Supreme Court’s decision in Parke v. Raley, 506 U.S. 20 

(1992). There, the Supreme Court made clear that the 

defendant in a recidivist sentencing proceeding may be 

assigned the burden of proof when challenging the 

constitutionality of a prior conviction that is being used to 

enhance or determine the current sentence. Consistent with 

Parke v. Raley, every court of appeals to consider the question 

has reached that same conclusion. By ruling otherwise here, 

the majority opinion, in my view, both deviates from Supreme 

Court precedent and creates an unwarranted circuit split.

* * *

Martinez-Cruz was convicted of one count of conspiracy 

to distribute methamphetamine. Consistent with sentencing 

practices throughout American history, the Sentencing 

Guidelines authorize district court judges to sentence a 

defendant based in part on the defendant’s prior record. See

U.S. SENTENCING GUIDELINES § 4A1.1 (2013). In this case, 

Judge Hogan applied the relevant Guidelines and calculated 

Martinez-Cruz’s sentence based in part on Martinez-Cruz’s

prior DUI conviction by guilty plea in Georgia. 

On appeal, Martinez-Cruz argues that Judge Hogan 

should not have counted the prior Georgia DUI conviction

when sentencing Martinez-Cruz here. Importantly, MartinezCruz never before challenged the Georgia DUI conviction in 

any Georgia court. (Martinez-Cruz presumably did not

previously challenge his Georgia DUI conviction because he 

got a good deal: no jail time beyond the two days time served 

after his arrest and only 12 months of probation.) That 

Georgia conviction therefore has long since been a final 
2

judgment. Despite never before challenging the Georgia 

conviction, Martinez-Cruz has now contended – in the context 

of his sentencing for a federal drug offense – that his Georgia 

DUI conviction was unconstitutional because he allegedly did 

not voluntarily waive his right to counsel before he pled

guilty.

The question here concerns the burden of proof when the 

defendant challenges the constitutionality of a prior 

conviction that is being used to enhance or determine a

current sentence. The burden of proof is important in many 

recidivist sentencing proceedings because records of old 

convictions may be difficult if not impossible to obtain. So 

assignment of the burden of proof can be outcomedeterminative. The Government argues – and Judge Hogan 

agreed – that the burden of proof may be placed on the 

defendant. Martinez-Cruz contends otherwise. 

The Guidelines do not expressly answer the question but 

instead provide the defendant with the minimum protections 

of the Due Process Clause, or any separate specific statute 

applicable to the particular offense. U.S. SENTENCING 

GUIDELINES § 4A1.2 cmt. n.6 (2013). No separate statute sets 

the burden of proof here. So we must assess what the Due 

Process Clause requires with respect to the burden of proof 

question. And there, we run squarely into Parke v. Raley. 

In Parke v. Raley, 506 U.S. 20 (1992), the Supreme Court 

analyzed how the Due Process Clause applies when the 

defendant challenges a prior conviction used to enhance the 

defendant’s current sentence. The Court began by 

emphasizing the nature of recidivist sentencing procedures. 

“Statutes that punish recidivists more severely than first 

offenders,” the Court said, “have a long tradition in this 

country that dates back to colonial times.” Parke, 506 U.S. at 
3

26. In those recidivist proceedings, a “presumption of 

regularity” attaches to the prior conviction because the prior 

conviction is a final judgment. Id. at 29. That principle 

applies “even when the question is waiver of constitutional 

rights” in the prior proceeding. Id. 

As Parke v. Raley explained, the reason for this principle 

is straightforward: By definition, a defendant in a recidivist 

proceeding who challenges the prior conviction is mounting a 

“collateral attack” because he or she is seeking to deprive the 

prior conviction of its “normal force and effect in a 

proceeding that has an independent purpose other than to 

overturn the prior judgments.” Id. at 30. In a collateral 

attack, the individual challenging the conviction ordinarily 

bears the burden of proof. See, e.g., id. at 31; see also 28 

U.S.C. § 2254(e). In light of the collateral nature of a 

recidivist sentencing proceeding where the defendant 

challenges a prior sentence, the Supreme Court determined in 

Parke v. Raley that, as a matter of due process, the Federal 

Government and States possess wide discretion to choose how 

to assign the burden of proof – including by assigning the 

burden to the defendant. Indeed, the Court approvingly cited 

the many state laws that “assign the entire burden to the 

defendant.” Id. at 33. And the Court also cited with approval 

five federal cases (involving two different federal statutes) 

and another federal statute that “placed on the defendant the 

entire burden of proving the invalidity of a prior conviction.” 

Id. at 33-34. 

Applying those principles in Parke v. Raley, the Supreme 

Court upheld Kentucky’s burden-shifting scheme, stating that 

it “easily passes constitutional muster.” 506 U.S. at 28. To 

be sure, the Kentucky scheme at issue in Parke placed only 

the initial burden of production on the defendant, and not the 

ultimate burden of proof. But as noted above, the Court’s 
4

analysis – at least the music if not the words of the Court’s 

opinion – made clear that the burden of proof may be placed 

on the defendant when the defendant seeks to challenge a 

prior conviction in a recidivist proceeding. 

Consistent with Parke v. Raley, every court of appeals to 

consider the question has held that the Due Process Clause 

allows the burden of proof to be assigned to the defendant in 

these cases. See, e.g., United States v. Gray, 177 F.3d 86, 88-

91 (1st Cir. 1999); United States v. Davenport, 884 F.2d 121, 

122-24 (4th Cir. 1989); United States v. Osborne, 68 F.3d 94, 

100-01 (5th Cir. 1995); United States v. Hoffman, 982 F.2d 

187, 191 (6th Cir. 1992); United States v. Gallman, 907 F.2d 

639, 642-44 (7th Cir. 1990); United States v. Stapleton, 316 

F.3d 754, 756 (8th Cir. 2003); United States v. Dominguez, 

316 F.3d 1054, 1056-57 (9th Cir. 2003); United States v. 

Johnson, 973 F.2d 857, 862 (10th Cir. 1992); United States v. 

Ruo, 943 F.2d 1274, 1275-76 (11th Cir. 1991). Importantly, 

neither the Supreme Court nor the lower courts have done 

what the majority opinion does here – that is, carve out novel 

exceptions to the minimum burden of proof baseline based on 

the nature of the alleged constitutional violation in the prior 

conviction. The courts have applied this burden of proof 

principle even where the prior conviction allegedly 

contravened the right to counsel or the right to guilty plea 

warnings. 

Even without the precedent of Parke v. Raley, it would be 

plain in my view that the Due Process Clause allows the 

burden of proof to be placed on the defendant collaterally 

challenging his prior conviction in a recidivist sentencing 

proceeding. As a matter of history and contemporary practice

– which is what the Supreme Court generally examines to 

fashion due process rules in the criminal context, see Medina 

v. California, 505 U.S. 437 (1992) – the burden of proof often 
5

has been assigned to the defendant in these circumstances. 

The strong rationale for that tradition and practice was 

explained well by then-Judge Breyer in a pre-Parke v. Raley

case:

[T]heoretically speaking, any given conviction might 

suffer any of a myriad of constitutional defects. 

Practically speaking, it is the defendant, not the

probation officer or the Government, who will know 

any particular defect-related details about any 

particular prior conviction. For such reasons, the 

Sentencing Commission (and courts) in related 

sentencing areas have said that, once the Government 

establishes the existence of a prior conviction, the 

burden shifts to the offender to show that the 

conviction violated the Federal Constitution.

United States v. Wilkinson, 926 F.2d 22, 28 (1st Cir. 1991), 

abrogated on other grounds by Bailey v. United States, 516 

U.S. 137 (1995). Martinez-Cruz cites no historical tradition 

or contemporary practice suggesting a contrary rule. 

Therefore, even without Parke v. Raley, I would conclude that 

the Due Process Clause allows the burden of proof to be 

assigned to the defendant.

In sum, as a matter of due process, the Supreme Court 

has allowed the burden of proof to be placed on a defendant

who is challenging the use of a prior conviction to calculate

the current sentence. That minimum due process baseline is

incorporated into the Sentencing Guidelines. In this 

Guidelines case, Martinez-Cruz did not satisfy the burden of 

proof when attempting to show that his prior Georgia DUI 

conviction was unconstitutional. I therefore agree with Judge 

Hogan’s well-reasoned decision to count Martinez-Cruz’s 

prior Georgia DUI conviction when imposing the sentence in 
6

this case. I would affirm the judgment of the District Court. I 

respectfully dissent.