US v. Ernest McDowell, Jr.
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:10-cr-00296-FL-1. Copies to all parties and the district court/agency. [998989997]. [11-4860]
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UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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.
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Unpublished opinions are not binding precedent in this circuit.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
possession,
and
while
found
eighteen
searches
in
bundles
other
of
heroin
locations
in
his
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
(“PSR”),
counts.
the
In
probation
the
presentence
officer
investigation
recommended
that
the
report
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. §
1
In 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.
Shepard’s holding.
13
(2005).
However,
McDowell
misstates
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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with
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what
documents
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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 seconddegree 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
6
record
that
McDowell
was
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convicted
for
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second-degree
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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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