*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 30 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ARTURO CEBALLOS-RIOS, a/k/a Mario Daniel Trevino, a/k/a Manuel Rivas, a/k/a Arturo Rios, Defendant-Appellant. No. 98-1367 (D. Colo.) (D.Ct. No. 98-CR-147-N)

____________________________ ORDER AND JUDGMENT *

Before BRORBY , EBEL , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is therefore ordered submitted without oral argument.-2-

Mr. Arturo Ceballos-Rios appeals his seventy-month sentence imposed after pleading guilty to unlawful reentry into the United States following deportation for a felony conviction, in violation of 8 U.S.C. § 1326(b). Mr. Ceballos-Rios challenges the district court’s assessment of: (1) one criminal history point for a 1992 conviction he claims is not his conviction, an d (2) two criminal history points for illegal reentry while under a criminal j ustice sentence he claims he knew nothing about. We affirm Mr. Ceballos-Rios’ s entence.

We review the district court’s application of the s entencing guidelines de

novo and its factual findings for clear error. United States v. McCloud, 127 F.3d 1284, 1290 (10th Cir. 1997). Applying this standar d of review, we address Mr. Ceballos-Rios’ argument that the district court inappropriately assessed him one criminal history point based on a 1992 conviction h e claims is not his. Specifically, he argues no evidence, such as photog raphs or fingerprints, proves he was the defendant convicted in that case. In support of this argument, he contends the district court cannot rely on the pres entence report and attached documents as evidence in attributing this convictio n to him.

A review of the record establishes the district cou rt did not err in finding the 1992 conviction attributable to Mr. Ceballos-Ri os. The1992 Colorado state-3-

and county conviction documents attached to the pre sentence report name “Arturo Ceballos-Rios” as the defendant, and describe him a s a Hispanic male, born September 26, 1967 in Juarez, Mexico, and living atan address in Boulder, Colorado. Listed as a witness to the crime is “Meg an Rios,” born January 18, 1972, and living at the same address in Boulder, Co lorado. These facts support a reasonable and substantial inference that Mr. Cebal los-Rios is the same person named in the conviction because he too is a Hispani c male, born September 26, 1967 in Juarez, Mexico, and known to live in Boulde r, Colorado during the period of this conviction. His wife, since 1991, is Megan (a/k/a Meghan) Rios, who is approximately the same age as the “Megan Rios” desc ribed as a witness in the conviction documents. Based on this information, t he district court reasonably attributed the conviction to Mr. Ceballos-Rios.

Having determined these documents implicate Mr. Ceb allos-Rios in the conviction, the district court did not err in relyi ng on them. The government had the burden of establishing the existence of a convi ction by a preponderance of the evidence, which it met through the conviction docum ents attached to the presentencing report. See, e.g., United States v. Kirk, 894 F.2d 1162, 1164 (10th Cir. 1990). These documents establish by a prepon derance of the evidence that Mr. Ceballos-Rios is the individual convicted. Con sequently, the government was1 Moreover, even if the district court erred in attributing this conviction to Mr.

Ceballos-Rios, it would not affect his sentence. Notably, the reduction of one criminal history point would reduce his criminal history score to 11, thereby leaving his criminal history category the same (Category V), with the same sentencing range of seventy to eighty-seven months. SeeU.S.S.G. Ch. 5, Pt. A, Sentencing Table.
-4- not required to offer any further proof and Mr. Ceb allos-Rios failed to offer any evidence to counter the inferences in these documen ts. Moreover, we recognize that probation officers who prepare these reports a re reliable sources, see United States v. Hershberger , 962 F.2d 1548, 1555 (10th Cir. 1992), and courts may take judicial notice of public documents, such as the attached conviction records. See Federal Rules of Evidence 201. For these reasons, the district court did not err in relying on the presentencing report and the attache d documents in finding Mr. Ceballos-Rios is the same person as the defendant n amed in the 1992 conviction, and then attributing that conviction to him for the purpose of assessing a criminal history point. 1

We next determine whether the district court proper ly assessed Mr. Ceballos-Rios two criminal history points for illeg al reentry while under a criminal justice sentence. The United States Sente ncing Guidelines instruct the sentencing court, when calculating a defendant’s cr iminal history, to “[a]dd 2 points if the defendant committed the instant offen se while under any criminal-5-

justice sentence, including probation, parole, supe rvised release, imprisonment, work release, or escape status.” U.S.S.G. § 4A1.1( d). In this case, state authorities sentenced Mr. Ceballos-Rios to two year s of community corrections on a conviction for attempted burglary. However, Mr. Ceballos-Rios did not serve this sentence because he absconded and, when caught , authorities deported him. He later illegally reentered the United States whil e still subject to this criminal sentence for burglary. Based on this evidence, the district court assessed two criminal points in sentencing Mr. Ceballos-Rios.

On appeal, Mr. Ceballos-Rios contends that under § 4A1.1(d), he must have knowledge of the pending criminal justice sentence in order to be assessed any criminal history points. He claims immigration aut horities, during his deportation, failed to advise him that he remained subject to this sentence and therefore, he did not know of it at the time of his arrest.

Neither U.S.S.G. § 4A1.1 nor the other sentencing g uidelines require a defendant to know of the criminal justice sentence imposed against him before criminal history points are assessed. Rather, § 4A 1.1 only requires pendency of a criminal justice sentence at the time of the instan t offense. U.S.S.G. § 4A1.1(d). Moreover, even if we apply a “knowledge” requiremen t to § 4A1.1(d), Mr.-6-

Ceballos-Rios does not deny that at the time of his conviction for burglary, he knew of his two-year community corrections sentence . In fact, it appears he purposefully absconded to avoid serving that senten ce. His resulting deportation does not erase any former knowledge he possessed of his pending criminal sentence. Mr. Ceballos-Rios also does not cite to any authority requiring deportation officials to inform him of all penaltie s which might attach on illegal reentry into the United States. See, e.g. United States v. Meraz-Valeta , 26 F.3d 992, 996 (10th Cir. 1994) (concluding due process d id not require authorities to inform defendant of all possible penalties for reen try into the United States).

For these reasons, we AFFIRM Mr. Ceballos-Rios’ sentence.

Entered by the Court: WADE BRORBY United States Circuit Judge