United States v. Ernest McDowell, Jr.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4860
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,
Chief District Judge. (5:10-cr-00296-FL-1)
Argued: October 25, 2012 Decided: November 28, 2012
Before KING and FLOYD, Circuit Judges, and R. Bryan HARWELL,
United States District Judge for the District of South Carolina,
sitting by designation.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Yvonne
Victoria Watford-McKinney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P.
McNamara, Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Ernest James McDowell, Jr. pled guilty to possession with
intent to distribute heroin and being a felon in possession of a
firearm. On August 8, 2011, the district court sentenced him to
213 months of imprisonment and five years of supervised release.
On appeal, McDowell alleges the district court erred by
sentencing him as an armed career criminal. For the reasons that
follow, we vacate McDowell’s sentence and remand to the district
court for resentencing.
I.
On August 6, 2010, federal agents stopped McDowell as he
was driving and found eighteen bundles of heroin in his
possession, while searches in other locations uncovered
additional heroin and a .44 caliber revolver.
A grand jury indicted McDowell for possession with intent
to distribute a quantity of heroin, in violation of 21 U.S.C.
§ 841(a)(1) (2006), and possession of a firearm by a felon, in
violation of 18 U.S.C. § 922(g)(1) (2006). McDowell pled guilty
to both counts. In the presentence investigation report
(“PSR”), the probation officer recommended that the district
court sentence McDowell as an armed career criminal based upon
his prior convictions.
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The district court held McDowell’s sentencing hearing on
August 8, 2011. The PSR listed, among other convictions, a 1971
second-degree assault conviction from the Bronx County Supreme
Court in New York. According to the Government, the PSR relied
on a criminal record check to show the previous conviction. 1
McDowell objected to the use of this conviction to classify him
as an armed career criminal because a criminal record check is
insufficient to prove the prior conviction, and because the
criminal record check showed a conviction in the name “Michael
McDonald” rather than the name “Ernest James McDowell.”
Relying primarily upon information gleaned from the
criminal record check, the district court overruled McDowell’s
objection and sentenced him as an armed career criminal.
II.
Under the Armed Career Criminal Act (“ACCA”), a defendant
is an armed career criminal if he has at least three prior
convictions for violent felonies or serious drug offenses
“committed on occasions different from one another.” 18 U.S.C. §
1In its brief, the Government references a criminal record
check from New York, commonly referred to as a “rap sheet.”
However, during oral argument, the Government explained that
although the original New York records from the 1971 conviction
were no longer available, the PSR relied on a report produced by
the National Crime Information Center (“NCIC”) to show the
previous conviction.
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924(e)(1) (2006); U.S.S.G. § 4B1.4(a) (2011). The Government
bears the burden of proving an ACCA predicate conviction by a
preponderance of the evidence. United States v. Harcum, 587
F.3d 219, 222 (4th Cir. 2009). The parties do not dispute that
the underlying convictions at issue, the 1971 conviction for
second-degree assault, the 1986 conviction for common law
robbery, and the 1986 conviction for robbery with a dangerous
weapon, constitute predicate convictions under ACCA. See 18
U.S.C § 924(e)(2). The parties dispute whether the Government
sufficiently proved that McDowell was convicted in 1971 for
second-degree assault. We review the district court's factual
findings for clear error and its classification of McDowell as
an armed career criminal de novo. United States v. Farrior, 535
F.3d 210, 223 (4th Cir. 2008).
McDowell first argues that the district court erred in
considering the criminal record check because it was not among
the “limited list” of documents referenced in Shepard v. United
States, 544 U.S. 13 (2005). However, McDowell misstates
Shepard’s holding. In Shepard, the Supreme Court held that a
sentencing court may not look beyond the charging document or
certain other limited documents to determine whether a prior
offense qualifies as a predicate conviction under ACCA. Shepard,
544 U.S. at 26. Shepard “did not address what documents can be
used to prove the fact of a prior conviction, but was concerned
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only with what documents can be used to prove the facts
underlying a conviction where the elements of the state crime do
not precisely mirror the federal definition.” United States v.
Zuniga-Chavez, 464 F.3d 1199, 1203 (10th Cir. 2006) (emphasis in
original); see also United States v. Carter, 591 F.3d 656, 661
(D.C. Cir. 2010); United States v. Sanders, 470 F.3d 616, 623-24
(6th Cir. 2006). The issue in this case is whether McDowell had
a 1971 second-degree assault conviction, not whether the second-
degree assault conviction amounts to a “violent felony” under
ACCA. Shepard does not apply.
McDowell next argues that the district court erred in
finding that McDowell was convicted in 1971 for second-degree
assault because its finding rested on unreliable information,
notably the criminal record check. Pursuant to the Guidelines,
“[i]n resolving any dispute concerning a factor important to the
sentencing determination, the court may consider relevant
information . . . provided that the information has sufficient
indicia of reliability to support its probable accuracy.”
U.S.S.G. § 6A1.3(a) (2011); see also United States v. Scott, 343
Fed. App’x 930, 930-31 (4th Cir. 2009).
Here, the criminal record check was never made part of the
record before the district court or part of the record on
appeal. Indeed, the Government conceded at oral argument that
there was no “evidence” in the record that McDowell was
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convicted for second-degree assault in 1971, only argument
before the district court. Therefore, the district court erred
in determining the fact of McDowell’s 1971 conviction, and thus
in classifying McDowell as an armed career criminal and so
sentencing him under ACCA.
III.
For the foregoing reasons, we vacate McDowell’s sentence
and remand to the district court for resentencing. 2
VACATED AND REMANDED
2
In an unpublished case, we have recognized that several
other courts have approved the use of NCIC reports to establish
prior convictions. See United States v. Scott, No. 08-4888, 2009
WL 2758074, at *1 (4th Cir. Sept. 2, 2009). Here, however,
neither the criminal record check nor the original judgment of
conviction was made part of the record. Thus, we do not address
McDowell’s argument that criminal record checks, such as the
NCIC report apparently used in this case, are unreliable for
purposes of proving the fact of an ACCA predicate conviction.
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