United States v. Robert Foster

United States Court of Appeals
For the Eighth Circuit
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No. 14-2476
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Robert Earl Foster, also known as Charles Edward Foster
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Jefferson City
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Submitted: January 12, 2015
Filed: April 10, 2015
[Unpublished]
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Before SMITH, BENTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Robert Earl Foster pled guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court1 found Foster had
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The Honorable Brian C. Wimes, United States District Judge for the Western
District of Missouri.
three prior felony convictions for violent crimes or controlled substance offenses and
sentenced him as an Armed Career Criminal pursuant to 18 U.S.C. § 924(e)(1). The
Guidelines range called for a sentence of 188 to 235 months imprisonment, and the
district court sentenced Foster to 188 months imprisonment. Foster appeals his
sentence, asserting only that the district court erred in finding by a preponderance of
the evidence that he had a third felony conviction for the purposes of the Armed
Career Criminal Act. Having jurisdiction under 28 U.S.C. § 1291, and after careful
review, we affirm.
At sentencing, the district court found Foster had three prior violent or serious
drug felony convictions, including one for a 1993 second-degree assault in Pemiscot
County, Missouri. Foster challenged this conviction on the basis that he was not the
Robert Foster named in that case. Foster now argues that the district court was
required to find that he was the convicted party beyond a reasonable doubt, rather
than by a preponderance of the evidence, and the government presented insufficient
evidence to satisfy this burden of proof. We review a district court’s factual findings
regarding a defendant’s prior convictions for clear error and review the use of such
convictions for sentence enhancement de novo. United States v. Birdine, 515 F.3d
842, 844 (8th Cir. 2008).
Upon review, we determine that the district court did not err in applying a
preponderance of the evidence standard to the question of whether Foster was the
party who was convicted in the 1993 assault. See Almendarez-Torres v. United
States, 523 U.S. 224, 243-44 (1998) (holding that a district court may make findings
regarding prior convictions without sending the question to the jury to find beyond
a reasonable doubt); see also Alleyne v. United States, 133 S. Ct. 2151, 2160 & n.1
(2013) (holding that facts increasing punishment should be found by a jury beyond
a reasonable doubt but noting that holding did not disturb the Almendarez-Torres
exception for facts of prior conviction); United States v. Abrahamson, 731 F.3d 751,
752 (8th Cir. 2013) (per curiam) (explaining that Alleyne did not alter the rule that
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enhancements based on prior convictions may be found by a judge). Whether Foster
was the party who was convicted for the 1993 assault is a fact of his prior conviction
that need not be proven beyond a reasonable doubt. See United States v. Urbina-
Mejia, 450 F.3d 838, 840 (8th Cir. 2006) (holding that district court did not err in
finding by a preponderance of the evidence that the defendant was the party convicted
of prior crime). Sufficient evidence proved by a preponderance of the evidence that
Foster was the party convicted in the 1993 assault, including identical data from each
conviction record, consisting of matching fingerprints, birth dates, and social security
numbers, with the exception of one scrivener’s error in the social security number in
the 1993 assault record.
The district court did not err in finding by a preponderance of the evidence that
Foster had a third violent or serious drug felony conviction for the purposes of the
Armed Career Criminal Act. The judgment is affirmed.
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