Documente Academic
Documente Profesional
Documente Cultură
No. 13-4370
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:
Decided:
He contends
that
uncertified
the
criminal
felony
district
record
in
New
applicable
court
check
York
burden
erred
as
proof
more
of
by
that
than
proof
relying
forty
and
our
he
on
an
committed
years
ago.
violent
Given
deferential
the
standard
of
review, we affirm.
I.
A.
In
August
informant
to
2010,
buy
of
agents
heroin
DEA
from
authorized
McDowell,
confidential
suspected
North
heroin
man
believed
to
be
McDowells
distributor.
After taking the informants order, the distributor called
McDowell,
apartment,
who
promptly
picked
her
left
up,
his
and
home,
began
drove
to
driving
friends
again.
Soon
A narcotics dog
searched the exterior of the car and alerted the agents to the
presence
of
drugs
interior,
where
friends
apartment
inside.
they
found
with
The
agents
heroin.
her
They
consent,
2
searched
next
finding
the
cars
searched
more
the
heroin
search warrant for McDowells home, where they found yet more
heroin and a firearm.
In
March
2011,
McDowell
pled
guilty
without
plea
to
the
officer
prepared
Section
4B1.4
of
sentencing
hearing,
presentence
report
the
Sentencing
McDowells
(PSR).
Guidelines,
probation
Pursuant
the
to
probation
Armed
McDowells
Career
status
Criminal
as
an
Act
(ACCA),
armed
career
18
U.S.C.
criminal
924(e).
yielded
the
McDowells
prior
probation
violent felony.
officer
convictions
met
concluded
the
ACCAs
that
three
definition
of
of
a
conviction
in
the
Bronx
3
for
second
degree
assault.
Instead,
the
Government
obtained
from
the
relied
National
on
Crime
criminal
Information
record
Center
check
(NCIC)
database, which listed the 1971 assault among the crimes for
which McDowell had been convicted.
The
NCIC
is
computerized
index
of
criminal
justice
Center, Fed. Bureau of Investigation, http://www.fbi.gov/aboutus/cjis/ncic/ncic (last visited Feb. 18, 2014) (NCIC Website).
The
FBI
across
administers
the
country
the
NCIC,
but
can
access
law
the
enforcement
database
to
officials
help
them
official
duties
more
safely.
Id.
As
of
2011,
the
provide
criminal
false
names,
histories
Management
of
Id.
to
Criminal
the
NCIC
their
typically
links
fingerprints.
History
Record
See
Information,
suspects
Use
Bureau
and
of
NCIC
report
detailing
lists
four
at
issue
McDowells
different
here
consists
alleged
names
of
criminal
for
five-page
history.
McDowell:
The
Michael
Dowell.
It
also
provides
4
four
different
birthdays
for
weight,
and
characteristics.
McDowells
arrests
his
hair
And
the
and
color,
report
among
provides
convictions
in
New
other
identifying
information
York
State.
about
As
his
sentencing
hearing,
McDowell
objected
to
the
of
the
1971
assault.
He
contended
that
the
report,
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
If
years
explained
to
that
do
so.
McDowell
And
had
McDowells
been
probation
convicted
under
officer
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
addressing
213
months
McDowells
imprisonment.
contention
that
On
the
appeal,
NCIC
without
report
was
basing
record.
its
sentence
on
report
never
made
part
of
the
that
there
was
evidence
in
the
record
that
Id.
We therefore vacated
establishing
asserted
that
unreliable
an
the
because
ACCA
predicate
report
it
at
offense.
issue
misstated
his
McDowell
also
here
was
particularly
name
and
listed
four
Government
responded
by
noting
that
McDowells
PSR
probation
officer
provided
statement,
And
explaining
that the NCIC compiles all names and birthdays that a defendant
gives upon arrest; thus, the reports reference to McDowells
aliases and to his four different birthdays should not be taken
as evidence of unreliability.
[analysis]
as
well
Corrections]
records
that
the
McDowell.
the
as
New
1971
York
[Department
conviction
belonged
of
to
probation
officer,
McDowells
counsel
asked
whether
the
1971
arrest
into
the
NCIC
database.
The
probation
officer
because
[t]here
is
lot
that
substantiates
it.
II.
The
ACCA
imprisonment
mandates
for
felons
term
convicted
of
of
fifteen
years
unlawfully
to
life
possessing
18 U.S.C. 924(e).
committed
predicate
violent
felony
--
the
same
United
We review
When
district
defendant
court
sentence.
must
objects
rule
on
to
the
information
dispute
in
before
PSR,
the
imposing
In resolving a dispute
regarding the PSR, the court may consider information that has
sufficient
accuracy.
indicia
of
U.S.S.G.
reliability
6A1.3(a).
to
The
support
party
its
probable
objecting
to
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
courts determinations regarding the reliability of information
in a PSR.
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.
III.
McDowell
initially
contends
that
the
NCIC
report
cannot
district court may use an NCIC report to help establish the fact
of a prior 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
evidence
States
v.
that
the
NCIC
Marin-Cuevas,
147
report
F.3d
[wa]s
889,
unreliable);
895
(9th
Cir.
United
1998)
source
[--]
the
computerized
criminal
history).
10
report is reliable.
To support this
lack
court
the
reliability
of
certified
records,
which
are
to
help
officers
safely, NCIC
perform[]
Website,
supra,
their
from
official
which
he
duties
infers
more
that
the
the
NCIC
database
is
fallible.
See,
e.g.,
Baker
v.
prior
conviction
involved
11
firearm);
Finch
v.
although
McDowell
purports
to
raise
an
empirical
significant
frequency.
Indeed,
when
asked
at
oral
450
F.3d
at
839,
which
recounted
probation
officers remark that one out of two hundred NCIC reports he had
encountered in his career was inaccurate.
a
99.5%
accuracy
rate
fails
to
Anecdotal evidence of
establish
categorical
we
note
that
the
limited
available
evidence
Bureau
of
Justice
Statistics
(2005)
on
the
NCIC);
Electronic
Record
Systems
and
Individual
12
system
trusted.
further
indicates
that
such
reports
may
be
that
witnesses
committed
probation
officers
use
criminal
histories
at
Criminal
History
NCIC
reports
sentencing.
Record
relevant
to
See
prior
establish
Use
Information,
and
Bureau
crime;
and
defendants
Management
of
of
Justice
to
introduce
prior-crime
evidence
against
defendant
at
trial); United States v. Townley, 472 F.3d 1267, 1277 (10th Cir.
2007)
(NCIC
report
used
history at sentencing).
to
establish
defendants
criminal
B.
Alternatively,
McDowell
argues
that,
even
if
courts
can
such
blatant
indicia
of
unreliability
that
the
He contends that
the
passage
of
forty
years
since
the
alleged
New
York
as
noted
explanations
above,
regarding
the
each
Government
of
the
provided
reports
unrebutted
alleged
defects.
The PSR noted that McDowell answered to the street name of Iron
Mike and that he occasionally used the alias Michael.
The
had spoken with an FBI agent who confirmed that the NCIC report
linked
McDowell
analysis.
to
the
1971
assault
through
fingerprint
14
had been convicted of other crimes in the Bronx under the alias
Michael shortly before 1971, rendering the subsequent assault
conviction more likely.
McDowell
of
was
convicted
federal
crime
in
1983
--
district
court
elicited
facts
rebutting
McDowells
in
it,
the
district
courts
ruling
would
seem
to
We
hold
only
that
15
the
district
court
did
not
IV.
McDowell
proceedings
also
ascribes
below.
He
constitutional
contends
that
error
in
to
the
applying
the
prior
conviction,
the
district
court
violated
his
Sixth
conceded that the NCIC report would not suffice to prove the
fact of McDowells 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
doubt.
to
Apprendi
v.
jury,
New
and
proved
Jersey,
530
beyond
U.S.
466,
reasonable
490
(2000)
reasonable-doubt
about
the
way
justice administered.
in
standard
which
law
Adherence to the
reflect[s]
should
be
profound
enforced
and
maximum
and
mandatory
minimum
penalties,
the
Sixth
has
recognized
Amendment rule:
an
exception
to
the
general
Sixth
Instead,
the
Court
has
held
that
the
Sixth
Amendment
of
the
evidence,
even
if
this
fact
raises
the
Id. at 488.
mitigated
the
process
and
Sixth
Amendment
Id.
17
Four
Thomas,
Justices
who
subsequently
decided.
dissented
joined
stated
the
that
in
Almendarez-Torres.
Almendarez-Torres
he
believes
the
Justice
majority,
case
was
has
wrongly
to
reconcile
with
Almendarez-Torress
lonely
and
a
marks
omitted));
Fourteenth
defendant
Shepard,
Amendments
and
the
544
U.S.
guarantee
power
of
the
at
25
jury
State,
([T]he
standing
and
they
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 McDowells Sixth Amendment claim, we
feel bound to acknowledge its force.
the
entirely
Almendarez-Torres
case.
his
exception
are
absent
in
this
prior
conviction
in
fact
occurred.
Nor
was
there
any
mitigate
McDowells
Sixth
Amendment
concerns.
See
and
lays
bare
the
exceptions
incompatibility
V.
The district court increased McDowells 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
Sixth
Amendment
powerfully
testifies
prohibits
why
this
practice.
reconsideration
of
the
This
case
Almendarez-
court
may
preponderance
find
of
the
the
fact
of
evidence.
prior
Applying
conviction
this
by
standard,
a
the
is therefore
AFFIRMED.
20