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 two-
and-a-half years off the bottom end of the recommended range
for Martinez-Cruz. But because of a prior driving-under-the-
influence 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, 

, 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-of-
counsel 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, 

, 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, 

, 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,

, 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.” 

       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.” 

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.” 

    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. 

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.

(citing Johnson v. Zerbst, 

, 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,

and found that “neither our precedents nor
historical or contemporary practice compel the conclusion”
that Kentucky’s rule violated due process, 

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., 

That
presumption applies throughout the law and even when
constitutional rights are implicated. 

(citing
                                7

). 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,

, 497 (1994) (quoting United States v. Addonizio,

, 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, 

, 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 

, 31.

     At the same time, the Court has recognized the failure to
provide counsel as a “unique constitutional defect.” 

. It has both admonished courts to “indulge
every reasonable presumption against a waiver of counsel,”
e.g., 

; see also Glasser v. United States,

, 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., 

; 

. 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, 

, 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., 

.

     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.

. 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,

(1967), and United States v. Tucker, 

443 (1972), to the sort of rights whose vindication would
require too much “rummaging” through old and inaccessible
records. Daniels v. United States, 

, 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 

. 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.” 

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, 

, 190 (6th Cir. 1992); United
States v. Boyer, 

, 1204 (7th Cir. 1991); United
States v. Davenport, 

, 123-24 (4th Cir. 1989).
Others addressed prior convictions for which the defendant
had counsel. E.g., United States v. Stapleton, 

,
756 (8th Cir. 2003); United States v. Gallman, 

,
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, 

, 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, 

(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, 

, 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,

, 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. 

States v. Roman, 

, 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.” 

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, 

, 1297-98 (10th Cir. 2006); United
States v. Dominguez, 

, 1056-57 (9th Cir. 2003);
United States v. Early, 

, 245 (8th Cir. 1996);
United States v. Osborne, 

, 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, 

,
1042 (9th Cir. 1998); although reciting language placing the
burden on the defendant, 

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, 

(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, Martinez-
Cruz 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 outcome-
determinative. 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, 

(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.” 

26. In those recidivist proceedings, a “presumption of
regularity” attaches to the prior conviction because the prior
conviction is a final judgment. 

That principle
applies “even when the question is waiver of constitutional
rights” in the prior proceeding. 

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.” 

In a collateral
attack, the individual challenging the conviction ordinarily
bears the burden of proof. See, e.g., 

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.” 

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.”

     Applying those principles in Parke v. Raley, the Supreme
Court upheld Kentucky’s burden-shifting scheme, stating that
it “easily passes constitutional 

. 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, 

, 88-
91 (1st Cir. 1999); United States v. Davenport, 

,
122-24 (4th Cir. 1989); United States v. Osborne, 

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

, 191 (6th Cir. 1992); United States v. Gallman, 

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

, 756 (8th Cir. 2003); United States v. Dominguez,

, 1056-57 (9th Cir. 2003); United States v.
Johnson, 

, 862 (10th Cir. 1992); United States v.
Ruo, 

, 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, 

(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, 

, 28 (1st Cir. 1991),
abrogated on other grounds by Bailey v. United States, 

(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.