US v. Antonio Scott

Filing 920090901

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4888 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTONIO DONTEZ SCOTT, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (5:08-cr-00023-F-1) Submitted: August 26, 2009 Decided: September 1, 2009 Before TRAXLER, Judges. Chief Judge, and GREGORY and SHEDD, Circuit Affirmed by unpublished per curiam opinion. Ronald Cohen, Wilmington, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Antonio Dontez Scott pled guilty to possession of a firearm by a convicted 924 On (2006). appeal, felon, He in was violation sentenced the of to 18 180 U.S.C. months' 922(g)(1), imprisonment. Scott argues court improperly sentenced him as an armed career criminal career under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. 924(e) (2006). Specifically, he maintains that the district court improperly considered unverified database information as evidence of one of the predicate prior convictions. We affirm. This court reviews do novo whether a prior conviction qualifies States v. as a predicate 326 v. conviction F.3d 535, under 537 543 the (4th U.S. ACCA. Cir. United 2003). a Williams, United Following States Booker, 220 (2005), sentencing court continues to make factual findings concerning sentencing factors by a preponderance of the evidence. States v. Morris, 429 F.3d 65, 72 (2005). United A sentencing court may consider any evidence at sentencing that "has sufficient indicia of reliability." (2007). We U.S. review for Sentencing the Guidelines court's Manual factual v. 6A1.3(a) findings district error. at sentencing clear United States Farrior, 535 F.3d 210, 223 (4th Cir.), cert. denied, 129 S. Ct. 743 (2008). 2 At sentencing, the district court considered Scott's prior conviction for possession with intent to sell as a predicate conviction under the ACCA. Scott denied the prior conviction and argued that it was improperly included in the presentence report based only on the entry of his FBI number into the NCIC database. officer produced the Later in the hearing, the probation of conviction to the court. judgment Acknowledging there was no contrary evidence, the district court accepted the judgment and overruled Scott's objection. We recognize several other courts have specifically approved the use of NCIC reports to establish prior convictions. See United States v. Urbina-Mejia, 450 F.3d 838, 839-40 (8th Cir. 2006) (approving see also use of NCIC States 2006) records v. to verify state 464 NCIC conviction); F.3d 1205, to United Martinez-Jimenez, use of 1210-11 (10th past Cir. (approving and and citing reports opinions establish Fifth, convictions Tenth, unpublished Circuits from Ninth, Eleventh approving same). admission into However, in this case, we find dispositive the evidence at sentencing of the judgment of conviction verifying the subject prior conviction. provided sufficient information to determine The judgment Scott's armed career criminal classification. See Shepard v. United States, 544 U.S. 13, 19-21 (2005); see also Farrior, 535 F.3d at 224 (affirming enhanced sentence 3 pursuant to 21 U.S.C. 841(b)(1)(A) (2006) where district court relied on defendant's formal conviction records to determine nature of prior conviction). We therefore find no error in the sentencing court's classification of Scott as an armed career criminal. We accordingly affirm Scott's conviction and sentence. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4

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