United States v. McDowell

745 F.3d 115

UNITED STATES of America, Plaintiff–Appellee,

v.Ernest James McDOWELL, Jr., Defendant–Appellant.

No. 13–4370.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 29, 2014.

Decided: March 11, 2014.

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.

Before MOTZ, KING, and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge MOTZ wrote the opinion, in which Judge KING and Judge DIAZ joined.

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 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. 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,” “Ernest J. McDowell,” “Micheal McDowell,” and “James Mac Dowell.” It also provides four different birthdays for 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 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 Fed.Appx. 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 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 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...