United States v. Joseph Langer , 618 F.3d 1044 ( 2010 )


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  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                         No. 09-50399
    Plaintiff-Appellee,                   D.C. No.
    v.                                 2:07-cr-00818-
    JOSEPH GALAVIZ LANGER,                                 VBF-2
    Defendant-Appellant.
             OPINION
    Appeal from the United States District Court
    for the Central District of California
    Valerie Baker Fairbank, District Judge, Presiding
    Argued and Submitted
    June 7, 2010—Pasadena, California
    Filed August 20, 2010
    Before: Stephen S. Trott and William A. Fletcher,
    Circuit Judges, and Charles R. Breyer, District Judge.*
    Opinion by Judge Charles R. Breyer
    *The Honorable Charles R. Breyer, United States District Judge for the
    Northern District of California, sitting by designation.
    12497
    UNITED STATES v. LANGER            12499
    COUNSEL
    Christopher Brunwin, Michael J. Raphel, Jean-Claude Andre,
    OFFICE OF THE U.S. ATTORNEY, Los Angeles, Califor-
    nia, for the appellee.
    Davina T. Chen, Jonathan D. Libby, FEDERAL PUBLIC
    DEFENDER’S OFFICE, Los Angeles, California, for the
    appellant.
    12500               UNITED STATES v. LANGER
    OPINION
    BREYER, District Judge:
    This appeal concerns whether rap sheets are sufficiently
    reliable for purposes of the Sentencing Guidelines to prove
    the duration and date of imposition of a prior sentence. Defen-
    dant in this case pleaded guilty on December 18, 2008 to one
    count of conspiracy to distribute cocaine. At sentencing, the
    Government relied on Defendant’s rap sheet to argue that his
    prior convictions justified placing him in criminal history cat-
    egory II under the Sentencing Guidelines. Although Defen-
    dant did not dispute that he had been previously convicted, he
    argued that the rap sheets alone could not establish (1) that the
    sentence was sufficiently long to justify placing him in cate-
    gory II, or (2) that the sentence was not stale for purposes of
    the sentencing guidelines.
    Ninth Circuit cases establish that a sentencing judge can
    rely on rap sheets in certain limited circumstances. However,
    this Circuit has not previously decided whether a rap sheet, in
    the absence of any corroborating evidence, is sufficiently reli-
    able to establish by a preponderance of the evidence the tim-
    ing of a conviction and the length of the resultant sentence. As
    an initial matter, it is important to note that, unlike some other
    cases in which the reliability of a rap sheet is questioned,
    Defendant here does not argue that he was not, in fact, con-
    victed of the crime listed on the rap sheet. He concedes the
    fact of conviction. He argues instead that the rap sheet was
    not “sufficiently reliable to establish the date and length of a
    prior sentence.” Notwithstanding his suspicion as to the reli-
    ability of his rap sheet, Defendant presented no evidence at
    sentencing—or at any other time—undermining in any way
    the facts reflected in the rap sheet. He argues simply that the
    Government bore the burden of proving his criminal history,
    and because it relied solely on per se unreliable evidence, it
    failed to meet its burden.
    UNITED STATES v. LANGER                12501
    We disagree. In the absence of any evidence suggesting
    that the rap sheet contained errors of fact, and in the absence
    of a dispute as to the existence of the prior conviction, we
    conclude that the rap sheet was sufficiently reliable to justify
    applying criminal history category II.
    BACKGROUND
    On December 18, 2008, Defendant pled guilty to one count
    of conspiracy to distribute cocaine. [2 ER 121] A Presentence
    Report (“PSR”) was issued on February 23, 2009. That PSR
    calculated Defendant’s criminal history as category II based
    on three criminal history points. [PSR ¶¶ 35-39] Two points
    were based on convictions obtained in August 1997 for bat-
    tery, willful cruelty, and threatening to commit a crime with
    the intent to terrorize. A third point was assigned based upon
    an April 1997 conviction for assault.
    Defendant objected to the PSR, arguing that the judge
    should not consider the prior convictions reported in the PSR
    because the certified court records documenting those convic-
    tions had been destroyed. Therefore, according to Defendant,
    there was no proof that the prior sentence was of sufficient
    length to justify applying two criminal history points. On July
    23, 2009, the Probation Office responded in an addendum to
    the PSR. [PSR 328] The Probation Office concluded that, as
    to the August 1997 convictions, the “conviction[ ] and
    imposed sentence . . . was fingerprint-verified as belonging to
    the defendant, according to his CLETS rapsheet, and is thus
    deemed reliable.” As to the April 1997 conviction, the Proba-
    tion Office concluded that the “conviction and imposed sen-
    tence . . . was identified as belonging to the defendant,
    according to his CLETS rapsheet, but a fingerprint match was
    not made. However, this conviction clearly belongs to the
    defendant because the arrest information detailed in the
    CLETS rapsheet was confirmed and expanded upon by the
    arrest report . . . .” The probation officer also noted that, even
    12502              UNITED STATES v. LANGER
    if the April 1997 conviction were not considered, Defendant’s
    history would still place him in category II.
    Defendant’s sentencing hearing was held on July 27, 2009.
    [1 ER 1-63] The judge referenced the dispute regarding the
    proper criminal history category, and the defense attorney
    explained that
    whether or not the date that the sentence was
    imposed — it states August 28, ‘97 — if there’s a
    typo there and we don’t know that, that makes a dif-
    ference based on the age, for example, because this
    conviction is so old, but it’s on the verge, literally,
    of becoming too old to consider.
    Defense counsel went on to argue that the duration of the sen-
    tence was similarly important, because a shorter sentence
    might not have justified consideration of the sentence under
    the Guidelines.
    On July 30, 2009, the district court concluded that Defen-
    dant’s August 1997 convictions had been adequately proved
    by the rap sheet. As the judge explained: “The Court finds
    that the arrest, conviction, and sentence are adequately shown
    by the government referring to the fingerprint verified rap
    sheet.” The court found a “closer question” as to the April
    1997 conviction, and sustained Defendant’s objection to
    including that conviction in his criminal history. The April
    1997 conviction was therefore not included in Defendant’s
    criminal history.
    Defendant was ultimately sentenced to 87 months in prison,
    and to a five-year term of supervised release.
    STANDARD OF REVIEW
    This Court reviews for abuse of discretion whether a “rap
    sheet was sufficiently reliable to be used in calculating [a
    UNITED STATES v. LANGER                12503
    defendant’s] criminal-history score.” United States v.
    Alvarado-Martinez, 
    556 F.3d 732
    , 735 (9th Cir. 2009). See
    also United States v. Alvarado-Guizar, 
    361 F.3d 597
    , 600 (9th
    Cir. 2004) (“We . . . review for abuse of discretion a district
    court’s evaluation of the reliability of evidence used for sen-
    tencing purposes.”).
    Defendant argues that review should be de novo. Defendant
    asserts that the question at issue here concerns the application
    of law to facts, because “there was no dispute over the rele-
    vant facts (that the court records had been destroyed and the
    only information available was a [rap sheet]).” [Blue Br. 12]
    This argument misidentifies “the relevant facts.” Whether or
    not the parties agreed about the evidence that was or was not
    available, they most certainly did not agree about the central
    facts at issue in the sentencing: the date and length of Defen-
    dant’s prior sentence. Defendant did not think the rap sheet
    was sufficiently reliable to prove these facts. The Government
    did. The question then concerns the reliability of the evidence
    relied upon by the district judge. “[A] district court’s evalua-
    tion of the reliability of evidence used for sentencing pur-
    poses” is reviewed “for an abuse of discretion.” 
    Id. DISCUSSION Defendant
    raises only one issue in this appeal: Is a
    fingerprint-matched rap sheet sufficiently reliable to establish
    the date of a prior conviction and the length of the resultant
    sentence for the purpose of assigning criminal history points
    under the Sentencing Guidelines? For the reasons explained
    below, we conclude that the rap sheet was sufficiently reliable
    in this case. The sentence imposed by the district court is
    therefore AFFIRMED.
    [1] The Sentencing Guidelines provide that:
    When any factor important to the sentencing deter-
    mination is reasonably in dispute, the parties shall be
    12504               UNITED STATES v. LANGER
    given an adequate opportunity to present information
    to the court regarding that factor. In resolving any
    dispute concerning a factor important to the sentenc-
    ing determination, the court may consider relevant
    information without regard to its admissibility under
    the rules of evidence applicable at trial, provided
    that the information has sufficient indicia of reliabil-
    ity to support its probable accuracy.
    U.S.S.G. § 6A1.3(a) (emphasis added). As is made clear in
    this section, while the sentencing judge is not limited by the
    Rules of Evidence, she can only consider information that
    “has sufficient indicia of reliability to support its probable
    accuracy.”
    [2] Defendant argues that his rap sheet was not sufficiently
    reliable to support adding two points under § 4A1.1(b) of the
    Sentencing Guidelines. That Section provides that a sentenc-
    ing judge is to “[a]dd 2 [criminal history] points for each prior
    sentence of imprisonment of at least sixty days,” taking care
    not to double count a sentence also considered under
    § 4A1.1(a). Defendant argues first that the rap sheet is insuffi-
    ciently reliable to prove that the sentence was for “at least
    sixty days” as required by § 4A1.1(b). Second, he argues that
    it is similarly insufficient to prove that the prior conviction
    was recent enough to be relevant under the Guidelines. Under
    § 4A1.2(e)(2) and (3), a “prior sentence” for purposes of
    § 4A1.1(a) must have been “imposed within ten years of the
    defendant’s commencement of the instant offense. . . . Any
    prior sentence not within the time periods specified above is
    not counted.” According to Defendant, his rap sheet is not
    sufficiently reliable to prove that his conviction was “imposed
    within ten years” of the commencement of his federal offense.
    [3] As recounted in     the PSR, Defendant’s rap sheet
    reflected the imposition   of a 180-day prison sentence on
    August 28, 1997. Such a    sentence is three times longer than
    § 4A1.1(a) requires. The   PSR also reflects that Defendant’s
    UNITED STATES v. LANGER                12505
    federal crime “commenced” in October 2005, which is eight
    years after the August 1997 conviction listed on Defendant’s
    rap sheet. For purposes of the ten-year limitation period of
    § 4A1.2, Defendant’s prior conviction would have been stale
    only if it had been imposed earlier than October 1995. In
    other words, in order for the prior conviction to be “stale,” the
    rap sheet must have been more than a few days off—it must
    have reflected a conviction taking place two years after that
    date on which it actually occurred.
    [4] The parties devote much of their briefing to Alvarado-
    Martinez, 
    556 F.3d 732
    (9th Cir. 2009). Alvarado-Martinez
    concerned, among other things, whether a fingerprint-matched
    rap sheet “was sufficiently reliable to be used in calculating
    [the defendant’s] criminal-history 
    score.” 556 F.3d at 735
    .
    The panel concluded that it was sufficiently reliable, but lim-
    ited its holding “to the circumstances presented here, namely
    the existence of a fingerprint-matched rap sheet and the
    absence of other evidence that would undermine the rap
    sheet’s reliability.” 
    Id. at 735
    n.2. The panel “express[ed] no
    opinion on the reliability of a rap sheet that is, for example,
    not compiled on the basis of fingerprint matching or is other-
    wise undermined by contradictory evidence.” 
    Id. The Govern-
    ment contends that this case controls here.
    Defendant seeks to distinguish Alvarado-Martinez because
    in that case the sentencing judge also had access to docket
    sheets that listed the crimes in question. The question in that
    case was whether those crimes could be attributed to the
    defendant, and the district court relied on the fingerprint-
    identified rap sheet to connect the defendant to the docket
    sheet (the use of an alias resulted in the docket sheet not
    reflecting the defendant’s name). In this case there is no
    underlying court record reflecting the nature of the sentences,
    because those records were all destroyed. According to
    Defendant, while a rap sheet may be sufficient to prove
    identity—to connect a defendant to a crime reflected in court
    12506               UNITED STATES v. LANGER
    records—it is not sufficient on its own to prove the details of
    those convictions.
    [5] This difference is immaterial. The Alvarado-Martinez
    court explained the question before it as “whether a district
    court abuses its discretion by concluding that a fingerprint-
    matched rap sheet, in the absence of contrary evidence, is suf-
    ficiently reliable for assigning criminal-history 
    points.” 556 F.3d at 734
    n.1. It did not limit its holding to questions of
    identity or to cases where the rap sheet is corroborated by
    some other piece of evidence, but rather to cases where the
    rap sheet is fingerprint-verified and there is no contradictory
    evidence.
    [6] Such a result is similarly if not more compelling in this
    case. First, the parties agree that more reliable evidence that
    could corroborate the rap sheet simply is not available. The
    relevant court records, including the docket sheet, have been
    destroyed. Had Defendant submitted some form of evidence
    to undermine the rap sheet—such as evidence that the convic-
    tion actually happened in 1995 or earlier, as opposed to 1997
    —the district judge would have been obligated to weigh the
    evidence, and might have concluded that the rap sheet was of
    little persuasive value. But Defendant did not do so. Second,
    unlike in Alvarado-Martinez, Defendant concedes the fact of
    conviction. This case therefore does not present the question
    of whether an uncorroborated, albeit fingerprint-verified, rap
    sheet is sufficiently reliable to prove the conviction itself.
    Given the fact that Defendant introduced no contradicting evi-
    dence, the fact that more reliable documentary evidence had
    previously been destroyed, and the fact that Defendant con-
    ceded the fact of conviction, we cannot conclude that the dis-
    trict judge abused her discretion in relying on the fingerprint-
    verified rap sheet.
    Such an outcome is also broadly consistent with the rules
    adopted in other circuits, which have similarly condoned the
    use of rap sheets in certain circumstances. See, e.g., United
    UNITED STATES v. LANGER                12507
    States v. Rodriguez-Arreola, 
    313 F.3d 1064
    , 1068 (8th Cir.
    2002) (relying in part on a defendant’s rap sheet); United
    States v. Shinault, 
    147 F.3d 1266
    , 1278 (10th Cir. 1998)
    (same); United States v. Ibanez, 
    924 F.2d 427
    , 430 (2d Cir.
    1991) (same). While none of these cases is precisely analo-
    gous to this one, these cases still reflect the fact that other
    courts find rap sheets sufficiently reliable to be considered in
    the sentencing process. No circuit has adopted the rule advo-
    cated by Defendant. As noted by the First Circuit, rather than
    impose per se prohibition on the use of imperfect evidence at
    sentencing, “the wiser course is to leave reliability decisions
    and credibility determinations to the informed discretion of
    the district court, while rigorously ensuring that defendants
    have a sufficient opportunity to impeach tenuous evidence in
    appropriate ways, such as through cross-examination or by
    the introduction of evidence of their own.” United States v.
    Shrader, 
    56 F.3d 288
    , 295 (1st Cir. 1995).
    CONCLUSION
    [7] For the reasons explained above, the sentence imposed
    by the district court is AFFIRMED. In a case such as this one,
    where the district judge is presented with no evidence to
    undermine the accuracy of the rap sheet, and the defendant
    has in fact conceded the existence of the conviction, the judge
    is entitled to rely on the rap sheet as evidence of the nature
    of a defendant’s prior crimes.
    

Document Info

Docket Number: 09-50399

Citation Numbers: 618 F.3d 1044, 2010 U.S. App. LEXIS 17395, 2010 WL 3274279

Judges: Trott, Fletcher, Breyer

Filed Date: 8/20/2010

Precedential Status: Precedential

Modified Date: 11/5/2024