United States v. Ernest McDowell, Jr. , 745 F.3d 115 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4370
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERNEST JAMES MCDOWELL, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:10-cr-00296-FL-1)
Argued: January 29, 2014 Decided: March 11, 2014
Before MOTZ, KING, and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge King and Judge Diaz joined.
ARGUED: Robert Earl Waters, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Jennifer P.
May-Parker, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal
Public Defender, Stephen C. Gordon, Assistant Federal Public
Defender, Bettina K. Roberts, Research and Writing Attorney,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina,
for Appellant. Thomas G. Walker, United States Attorney, Yvonne
V. Watford-McKinney, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
DIANA GRIBBON MOTZ, Circuit Judge:
Ernest James McDowell, Jr., appeals his 196-month sentence
imposed pursuant to the Armed Career Criminal Act. He contends
that the district court erred by relying on an uncertified
criminal record check as proof that he committed a violent
felony in New York more than forty years ago. Given the
applicable burden of proof and our deferential standard of
review, we affirm.
I.
A.
In August 2010, DEA agents authorized a confidential
informant to buy heroin from McDowell, a suspected North
Carolina drug dealer. The informant placed an order for fifteen
bundles of heroin with a man believed to be McDowell’s
distributor.
After taking the informant’s order, the distributor called
McDowell, who promptly left his home, drove to a friend’s
apartment, picked her up, and began driving again. Soon
thereafter, DEA agents stopped McDowell’s car. A narcotics dog
searched the exterior of the car and alerted the agents to the
presence of drugs inside. The agents searched the car’s
interior, where they found heroin. They next searched the
friend’s apartment with her consent, finding more heroin
2
apparently belonging to McDowell. Then the agents obtained a
search warrant for McDowell’s home, where they found yet more
heroin and a firearm.
In March 2011, McDowell pled guilty without a plea
agreement to one count of possession of heroin with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1), and one count
of being a felon in possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(1) & 924.
B.
Prior to the sentencing hearing, McDowell’s probation
officer prepared a presentence report (“PSR”). Pursuant to
Section 4B1.4 of the Sentencing Guidelines, the probation
officer increased McDowell’s recommended sentence in the PSR on
the ground that he was an “armed career criminal” as defined by
the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).
McDowell’s status as an armed career criminal yielded a
Guidelines range of 188-235 months’ imprisonment.
In recommending that McDowell be designated an armed career
criminal, the probation officer concluded that three of
McDowell’s prior convictions met the ACCA’s definition of a
“violent felony.” The Government located formal court judgments
evidencing two of the three convictions. But the Government was
unable to produce a formal judgment documenting the third -- a
1971 conviction in the Bronx for second degree assault.
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Instead, the Government relied on a criminal record check
obtained from the National Crime Information Center (“NCIC”)
database, which listed the 1971 assault among the crimes for
which McDowell had been convicted.
The NCIC is a computerized index of criminal justice
information available to, and updated by, federal, state, and
local law enforcement agents. See National Crime Information
Center, Fed. Bureau of Investigation, http://www.fbi.gov/about-
us/cjis/ncic/ncic (last visited Feb. 18, 2014) (“NCIC Website”).
The FBI administers the NCIC, but law enforcement officials
across the country can access the database to help them
“apprehend fugitives,” “locate missing persons,” and “perform[]
their official duties more safely.” Id. As of 2011, the
database contained 11.7 million records, including records of
arrests and convictions. Id. To avoid misidentifying suspects
who provide false names, the NCIC typically links suspects’
criminal histories to their fingerprints. See Use and
Management of Criminal History Record Information, Bureau of
Justice Statistics 10 (2001).
The NCIC report at issue here consists of a five-page
printout detailing McDowell’s alleged criminal history. The
report lists four different names for McDowell: “Michael
Mc Dowell,” “Ernist J. McDowell,” “Micheal McDowell,” and “James
Mac Dowell.” It also provides four different birthdays for
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McDowell -- all inaccurate -- and two social security numbers.
The report correctly details McDowell’s birthplace, his height,
his weight, and his hair color, among other identifying
characteristics. And the report provides information about
McDowell’s arrests and convictions in New York State. As
relevant here, the report indicates that McDowell pled guilty
under the name “Michael Mc Dowell” to second degree assault in
the Bronx in 1971, a conviction for which he received a sentence
of four years’ imprisonment.
C.
At his sentencing hearing, McDowell objected to the
probation officer’s reliance on the NCIC report to establish the
fact of the 1971 assault. He contended that the report,
standing alone, did not suffice to prove that he committed that
crime. McDowell emphasized that the alleged assault took place
more than forty years earlier and that the record check referred
to him as “Michael Mc Dowell” rather than by his real name,
Ernest James McDowell, Jr.
The Government acknowledged that a certified court record
of the 1971 conviction was “no longer available,” but contended
that NCIC reports are generally reliable and that considerable
evidence corroborated this particular NCIC report. The
Government pointed out that McDowell had been convicted of other
crimes in the Bronx shortly before the 1971 assault, and that
5
Bronx officials therefore would not have misidentified him in
1971. Additionally, the Government noted that McDowell had been
convicted of a federal crime in 1983 that would have resulted in
a criminal background check revealing the 1971 conviction. If
the 1971 conviction never took place, the Government argued,
McDowell would have objected in 1983 rather than waiting another
thirty years to do so. And McDowell’s probation officer
explained that McDowell had been convicted under the name
“Michael” in 1970 -- a conviction McDowell did not contest --
suggesting that this was an alias he used at the time of the
challenged 1971 conviction.
Although the NCIC report was never entered into the record,
the district court relied on it to find that “the proof [was]
sufficient” to show that McDowell committed the 1971 assault.
Accordingly, the court sentenced McDowell as an armed career
criminal to 213 months’ imprisonment. On appeal, without
addressing McDowell’s contention that the NCIC report was
fatally unreliable, we concluded that the district court erred
by basing its sentence on a report never made part of the
record. United States v. McDowell, 497 F. App’x 345, 348 (4th
Cir. 2012) (unpublished). In light of the report’s absence, we
explained that “there was no ‘evidence’ in the record that
McDowell was convicted for second-degree assault in 1971, only
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argument before the district court.” Id. We therefore vacated
the sentence and remanded for resentencing.
On remand, the Government introduced the NCIC report, and
again relied on it. In response, McDowell again argued that the
NCIC record check constituted an “inherently unreliable” means
of establishing an ACCA predicate offense. McDowell also
asserted that the report at issue here was particularly
unreliable because it misstated his name and listed four
different and inaccurate birthdays.
The Government responded by noting that McDowell’s PSR
included “Iron Mike” as an alias for McDowell, indicating that
Michael was a name “he owns and recognizes for himself.” And
McDowell’s probation officer provided a statement, explaining
that the NCIC compiles all names and birthdays that a defendant
gives upon arrest; thus, the report’s reference to McDowell’s
aliases and to his four different birthdays should not be taken
as evidence of unreliability. The probation officer explained
that he had spoken to an FBI analyst who “confirmed through both
fingerprint [analysis] as well as New York [Department of
Corrections] records” that the 1971 conviction belonged to
McDowell. Accepting the court’s invitation to ask questions of
the probation officer, McDowell’s counsel asked whether the
probation officer knew who entered the information regarding the
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1971 arrest into the NCIC database. The probation officer
responded that he did not.
The district court then entered the NCIC report into the
record. Given the Government’s explanations as to its accuracy,
the court concluded that it was “appropriate to rely on” the
report because “[t]here is a lot that substantiates” it.
Accordingly, the court once again designated McDowell an armed
career criminal. The court then sentenced him to 196 months’
imprisonment -- a somewhat shorter sentence than the initial
sentence due to McDowell’s good behavior in the interim.
II.
The ACCA mandates a term of fifteen years to life
imprisonment for felons convicted of unlawfully possessing a
firearm after committing three “violent felon[ies]” or “serious
drug offense[s].” 18 U.S.C. § 924(e). The Government bears the
burden of proving by a preponderance of the evidence that a
defendant committed a predicate violent felony -- the same
standard that applies to any other sentencing factor. United
States v. Harcum, 587 F.3d 219, 222 (4th Cir. 2009). We review
a district court’s legal conclusions at sentencing de novo and
its factual findings for clear error. United States v. Farrior,
535 F.3d 210, 217 (4th Cir. 2008).
8
When a defendant objects to information in a PSR, the
district court must “rule on the dispute” before imposing a
sentence. Fed. R. Crim. P. 32(i)(3)(B). In resolving a dispute
regarding the PSR, the court may consider information that “has
sufficient indicia of reliability to support its probable
accuracy.” U.S.S.G. § 6A1.3(a). The party objecting to
information in a PSR has an “affirmative duty” to show that the
information is incorrect. United States v. Terry, 916 F.2d 157,
162 (4th Cir. 1990); see also United States v. Randall, 171 F.3d
195, 210-11 (4th Cir. 1999).
On appeal, we afford considerable deference to a district
court’s determinations regarding the reliability of information
in a PSR. We will not disturb a court’s determination regarding
the reliability of a PSR unless we are “left with the definite
and firm conviction that a mistake has been committed.” United
States v. Harvey, 532 F.3d 326, 336 (4th Cir. 2008) (quotation
marks omitted).
With these principles in mind, we turn to the case at hand,
in which McDowell challenges his sentence on both evidentiary
and constitutional grounds.
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III.
McDowell initially contends that the NCIC report cannot
establish, even by a preponderance of the evidence, the fact of
the 1971 conviction.
Every court of appeals to address a similar argument in a
published opinion has rejected it. All have concluded that a
district court may use an NCIC report to help establish the fact
of a prior conviction. Two appellate courts have held that an
NCIC report alone may establish a predicate conviction. See
United States v. Urbina-Mejia, 450 F.3d 838, 840 (8th Cir. 2006)
(district court did not clearly err in concluding that NCIC
report proved a prior conviction because defendant “provide[d]
no evidence that the NCIC report [wa]s unreliable”); United
States v. Marin-Cuevas, 147 F.3d 889, 895 (9th Cir. 1998)
(district court did not err in finding prior conviction because
defendant’s probation officer obtained the information “from a
reliable source [--] the computerized criminal history”).
Another court has concluded that an NCIC report, together with a
letter from a court clerk attesting to the conviction, sufficed
to prove a prior conviction. United States v. Martinez-Jimenez,
464 F.3d 1205, 1212 (10th Cir. 2006). And a fourth court has
held that an NCIC report may establish a prior conviction, but
only if the district court makes additional findings that the
10
report is reliable. United States v. Bryant, 571 F.3d 147, 155
(1st Cir. 2009).
McDowell distinguishes some of these cases and dismisses
others as wrongly decided. He raises concerns with respect to
the reliability of NCIC reports in general and his report in
particular. We address each of these arguments in turn.
A.
First, McDowell suggests that NCIC reports are inherently
too inaccurate to be relied on at sentencing. To support this
argument, he points to cases in which information included in an
NCIC report was found to be false. He notes that such reports
lack the reliability of certified court records, which are
created for the express purpose of memorializing the fact of a
criminal conviction. And he emphasizes that a goal of the NCIC
is to help officers “perform[] their official duties more
safely,” NCIC Website, supra, from which he infers that the
database errs on the side of overinclusivity.
Certainly, some case law does support McDowell’s contention
that the NCIC database is fallible. See, e.g., Baker v.
McCollan, 443 U.S. 137, 141 (1979) (criminal background check
mistakenly attributed to defendant a crime actually committed by
his brother); United States v. Kattaria, 553 F.3d 1171, 1177
(8th Cir. 2009) (en banc) (NCIC report mistakenly indicated that
defendant’s prior conviction involved a firearm); Finch v.
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Chapman, 785 F. Supp. 1277, 1278–79 (N.D. Ill. 1992) (mistake in
NCIC database led twice to plaintiff’s wrongful arrest).
But, although McDowell purports to raise an empirical
question regarding the accuracy of NCIC reports, he provides no
evidence to suggest that the NCIC database proves inaccurate
with any significant frequency. Indeed, when asked at oral
argument whether he could cite statistical evidence regarding
the accuracy of the NCIC database, McDowell’s counsel pointed to
Urbina-Mejia, 450 F.3d at 839, which recounted a probation
officer’s remark that one out of two hundred NCIC reports he had
encountered in his career was inaccurate. Anecdotal evidence of
a 99.5% accuracy rate fails to establish categorical
unreliability; rather, it severely undermines McDowell’s claim
that NCIC reports cannot be trusted.
Moreover, we note that the limited available evidence
suggests that the NCIC database is generally (albeit not always)
accurate. See Improving Access to and Integrity of Criminal
History Records, Bureau of Justice Statistics 2 (2005)
(estimating 0.1% error rate in firearm background checks, which
rely on the NCIC); Electronic Record Systems and Individual
Privacy, Fed. Gov’t Info. Tech., 133-34 (June 1986) (audit of
five states’ records indicated that 5.5% of NCIC wanted persons
entries were invalid).
12
The pervasive use of NCIC reports throughout the criminal
justice system further indicates that such reports may be
trusted. Courts use NCIC reports to make bail and pretrial
release decisions; prosecutors rely on NCIC reports at trial to
prove that witnesses committed a relevant prior crime; and
probation officers use NCIC reports to establish defendants’
criminal histories at sentencing. See Use and Management of
Criminal History Record Information, Bureau of Justice
Statistics 18-20 (2001); United States v. Wilson, No. 09–20138,
2009 WL 3818192, at *1 (E.D. Mich. Nov. 13, 2009) (NCIC report
used to introduce prior-crime evidence against defendant at
trial); United States v. Townley, 472 F.3d 1267, 1277 (10th Cir.
2007) (NCIC report used to establish defendant’s criminal
history at sentencing). In view of this widespread use of NCIC
reports, we cannot agree with McDowell’s blanket assertion that
NCIC reports are categorically unreliable. ∗
∗
The Supreme Court has cautiously authorized the police to
rely on computerized record checks -- even ones that later prove
inaccurate -- to execute warrants. In Arizona v. Evans, 514
U.S. 1 (1995), police arrested and searched a defendant based on
a record check mistakenly indicating that he was subject to an
outstanding arrest warrant. The Court declined to address
whether the arrest itself violated the Fourth Amendment, id. at
6 n.1, but concluded that evidence discovered during the arrest
need not be suppressed, id. at 16. Three Justices (on whose
concurrence the majority disposition depended) emphasized that
police may rely on computer records only to the extent that such
reliance is reasonable. They explained that while the police
“are entitled to enjoy the substantial advantages [computer-
(Continued)
13
B.
Alternatively, McDowell argues that, even if courts can
generally trust NCIC reports, the specific report at issue here
manifests such blatant indicia of unreliability that the
district court clearly erred in crediting it. He contends that
the NCIC report’s inaccurate statement of his name and birthday
and the passage of forty years since the alleged New York
conviction renders the report unworthy of credence.
These issues do cast some doubt on the report’s accuracy.
But, as noted above, the Government provided unrebutted
explanations regarding each of the report’s alleged defects.
The PSR noted that McDowell answered to the street name of “Iron
Mike” and that he occasionally used the alias “Michael.” The
probation officer clarified that an NCIC report includes any
names and birthdays provided by the defendant upon arrest --
including false ones. The probation officer also stated that he
had spoken with an FBI agent who confirmed that the NCIC report
linked McDowell to the 1971 assault through fingerprint
analysis. In addition, the Government pointed out that McDowell
based recordkeeping] technology confers,” they may not “rely on
it blindly.” Id. at 17 (O’Connor, J., concurring). Because
there was no reason to doubt the accuracy of the record check at
issue in that case, the concurrence agreed that the police acted
reasonably in relying on it. Accord Herring v. United States,
555 U.S. 135, 146 (2009).
14
had been convicted of other crimes in the Bronx under the alias
“Michael” shortly before 1971, rendering the subsequent assault
conviction more likely. And finally, the Government noted that
McDowell was convicted of a federal crime in 1983 -- a
conviction that would have resulted in a criminal background
check revealing the 1971 conviction -- and that if he had a
legitimate basis for challenging the 1971 conviction, would have
done so then.
These explanations vary in their persuasiveness, and, even
taken together, fail to erase all doubts regarding the accuracy
of the NCIC report at issue here. But the district court did
not clearly err in crediting them. Together, these explanations
sufficiently substantiated the information in the NCIC report to
permit the court to conclude by a preponderance of the evidence
that McDowell committed the 1971 assault. Indeed, given that
the district court elicited facts rebutting McDowell’s
objections to the NCIC report and corroborating the information
contained in it, the district court’s ruling would seem to
satisfy even the First Circuit’s requirement that the sentencing
court make an “additional inquiry into the reliability” of an
NCIC report before relying on it. Bryant, 571 F.3d at 155.
We need not and do not hold that a contested NCIC report
standing alone would suffice to establish the fact of a prior
conviction. We hold only that the district court did not
15
clearly err in finding that this report, in addition to the
corroboration provided by the Government, established the fact
of the 1971 conviction by a preponderance of the evidence.
IV.
McDowell also ascribes constitutional error to the
proceedings below. He contends that in applying the
preponderance-of-the-evidence standard to establish the fact of
his prior conviction, the district court violated his Sixth
Amendment right to have a jury find each element of his offense
beyond a reasonable doubt. At oral argument, the Government
conceded that the NCIC report would not suffice to prove the
fact of McDowell’s 1971 conviction beyond a reasonable doubt.
Normally, the Sixth Amendment requires any fact that raises
the statutory maximum or mandatory minimum penalty for a crime
to “be submitted to a jury, and proved beyond a reasonable
doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)
(announcing this rule with respect to statutory maximums); see
also Alleyne v. United States, 133 S. Ct. 2151, 2163 (2013)
(extending the rule to mandatory minimums). Adherence to the
demanding reasonable-doubt standard “reflect[s] a profound
judgment about the way in which law should be enforced and
justice administered.” Apprendi, 530 U.S. at 478 (quoting In re
Winship, 397 U.S. 358, 361-62 (1970)) (alteration in original).
16
Because an ACCA enhancement increases both a defendant’s
statutory maximum and mandatory minimum penalties, the Sixth
Amendment would seem to require the Government to prove an ACCA
predicate felony beyond a reasonable doubt. The Supreme Court,
however, has recognized an exception to the general Sixth
Amendment rule: a jury need not find the “fact of a prior
conviction” beyond a reasonable doubt. Apprendi, 530 U.S. at
490. Instead, the Court has held that the Sixth Amendment
permits a judge to find the fact of a prior conviction by a mere
preponderance of the evidence, even if this fact raises the
statutory maximum or minimum penalty for the current offense.
Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998).
The Supreme Court has since described the Almendarez-Torres
holding as “at best an exceptional departure” from the normal
Sixth Amendment rule. Apprendi, 530 U.S. at 487. The Court has
justified this “departure” on the ground that the defendant in
Almendarez-Torres “did not challenge the accuracy of [the prior
conviction] in his case” and that the prior conviction arose
“pursuant to proceedings with substantial procedural safeguards
of their own.” Id. at 488. The Court reasoned that these twin
protections “mitigated the due process and Sixth Amendment
concerns otherwise implicated in allowing a judge to determine a
‘fact’ increasing punishment beyond the maximum of the statutory
range.” Id.
17
Four Justices dissented in Almendarez-Torres. Justice
Thomas, who joined the Almendarez-Torres majority, has
subsequently stated that he believes the case was wrongly
decided. See Shepard v. United States, 544 U.S. 13, 28 (2005)
(Thomas, J., concurring). Moreover, the Supreme Court’s recent
characterizations of the Sixth Amendment are difficult, if not
impossible, to reconcile with Almendarez-Torres’s lonely
exception to Sixth Amendment protections. See Alleyne, 133 S.
Ct. at 2160 (“any facts that increase the prescribed range of
penalties to which a criminal defendant is exposed are elements
of the crime” that a jury must find beyond a reasonable doubt
(quotation marks omitted)); Shepard, 544 U.S. at 25 (“[T]he
Sixth and Fourteenth Amendments guarantee a jury standing
between a defendant and the power of the State, and they
guarantee a jury’s finding of any disputed fact essential to
increase the ceiling of a potential sentence.”).
Notwithstanding these recent cases, however, Almendarez-
Torres remains good law, and we may not disregard it unless and
until the Supreme Court holds to the contrary. See Agostini v.
Felton, 521 U.S. 203, 237 (1997) (if a Supreme Court precedent
directly controls, “yet appears to rest on reasons rejected in
some other line of decisions, the Court of Appeals should follow
the case which directly controls, leaving to [the Supreme] Court
18
the prerogative of overruling its own decisions” (quotation
marks omitted)).
But even as we reject McDowell’s Sixth Amendment claim, we
feel bound to acknowledge its force. The rationales justifying
the Almendarez-Torres exception are entirely absent in this
case. Unlike Almendarez-Torres, McDowell does not concede that
his prior conviction in fact occurred. Nor was there any
assurance that the disputed 1971 conviction arose “pursuant to
proceedings with substantial procedural safeguards of their own”
that mitigate McDowell’s Sixth Amendment concerns. See
Apprendi, 530 U.S. at 488. Application of the Almendarez-Torres
exception to this case thus untethers the exception from its
justifications and lays bare the exception’s incompatibility
with constitutional principles that are by now well settled.
V.
The district court increased McDowell’s statutory maximum
sentence on the basis of evidence that indicated -- but, as the
Government concedes, did not prove beyond a reasonable doubt --
that McDowell committed a crime forty years earlier. Several
members of the Supreme Court have expressed their belief that
the Sixth Amendment prohibits this practice. This case
powerfully testifies why reconsideration of the Almendarez-
Torres exception may be warranted. Under current law, however,
19
a court may find the fact of a prior conviction by a
preponderance of the evidence. Applying this standard, the
district court did not clearly err in concluding that McDowell
committed the 1971 assault. The judgment of the district court
is therefore
AFFIRMED.
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