US v. Ernest James McDowell, Jr.
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 5:10-cr-00296-FL-1. [999313221]. [13-4370]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4370
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,
District Judge. (5:10-cr-00296-FL-1)
Argued:
January 29, 2014
Decided:
March 11, 2014
Before MOTZ, KING, and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge King and Judge Diaz joined.
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.
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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
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
a
ago.
violent
Given
deferential
the
standard
of
review, we affirm.
I.
A.
In
August
informant
to
2010,
buy
of
agents
heroin
Carolina drug dealer.
bundles
DEA
from
authorized
McDowell,
a
a
confidential
suspected
North
heroin
The informant placed an order for fifteen
with
a
man
believed
to
be
McDowell’s
distributor.
After taking the informant’s order, the distributor called
McDowell,
apartment,
who
promptly
picked
her
left
up,
his
and
home,
began
drove
to
driving
thereafter, DEA agents stopped McDowell’s car.
a
friend’s
again.
Soon
A narcotics dog
searched the exterior of the car and alerted the agents to the
presence
of
drugs
interior,
where
friend’s
apartment
inside.
they
found
with
The
agents
heroin.
her
They
consent,
2
searched
next
finding
the
car’s
searched
more
the
heroin
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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
officer
prepared
Section
4B1.4
sentencing
presentence
a
of
hearing,
report
the
Sentencing
McDowell’s
(“PSR”).
Guidelines,
probation
Pursuant
the
to
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
McDowell’s
Career
status
Criminal
as
an
Act
(“ACCA”),
armed
career
18
U.S.C.
criminal
§ 924(e).
yielded
a
Guidelines range of 188-235 months’ imprisonment.
In recommending that McDowell be designated an armed career
criminal,
the
McDowell’s
probation
prior
“violent felony.”
officer
convictions
met
concluded
the
ACCA’s
that
three
definition
of
of
a
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
3
for
second
degree
assault.
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Instead,
the
Government
obtained
from
the
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relied
National
on
Crime
a
criminal
Information
record
Center
check
(“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/aboutus/cjis/ncic/ncic (last visited Feb. 18, 2014) (“NCIC Website”).
The
FBI
across
administers
the
the
can
country
NCIC,
but
access
law
the
enforcement
database
to
officials
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.
who
provide
criminal
false
names,
histories
Management
of
Id.
to
Criminal
To avoid misidentifying suspects
the
NCIC
their
typically
links
fingerprints.
History
Record
See
Information,
suspects’
Use
Bureau
and
of
Justice Statistics 10 (2001).
The
printout
report
NCIC
report
detailing
lists
four
at
issue
McDowell’s
different
here
consists
alleged
names
of
criminal
for
a
five-page
history.
McDowell:
The
“Michael
Mc Dowell,” “Ernist J. McDowell,” “Micheal McDowell,” and “James
Mac
Dowell.”
It
also
provides
4
four
different
birthdays
for
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McDowell -- all inaccurate -- and two social security numbers.
The report correctly details McDowell’s birthplace, his height,
his
weight,
and
characteristics.
McDowell’s
arrests
his
hair
And
the
and
color,
report
among
provides
convictions
in
New
other
identifying
information
York
State.
about
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
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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
explained
to
that
do
so.
McDowell
And
had
McDowell’s
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’
McDowell’s
imprisonment.
contention
that
On
the
appeal,
NCIC
without
report
was
fatally unreliable, we concluded that the district court erred
by
basing
record.
its
sentence
on
report
never
made
part
of
the
United States v. McDowell, 497 F. App’x 345, 348 (4th
Cir. 2012) (unpublished).
explained
a
that
“there
was
In light of the report’s absence, we
no
‘evidence’
in
the
record
that
McDowell was convicted for second-degree assault in 1971, only
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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
asserted
that
unreliable
an
the
because
ACCA
predicate
report
it
at
offense.
issue
misstated
his
McDowell
also
here
was
particularly
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.”
McDowell’s
probation
officer
provided
a
statement,
And
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
Corrections]
records”
that
the
McDowell.
the
as
New
1971
York
[Department
conviction
belonged
of
to
Accepting the court’s invitation to ask questions of
probation
officer,
McDowell’s
counsel
asked
whether
the
probation officer knew who entered the information regarding the
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arrest
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into
the
NCIC
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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
imprisonment
mandates
for
felons
a
term
convicted
of
of
fifteen
years
unlawfully
to
life
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
standard that applies to any other sentencing factor.
States v. Harcum, 587 F.3d 219, 222 (4th Cir. 2009).
same
United
We review
a district court’s legal conclusions at sentencing de novo and
its factual findings for clear error.
535 F.3d 210, 217 (4th Cir. 2008).
8
United States v. Farrior,
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When
district
a
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defendant
court
sentence.
must
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objects
“rule
on
to
the
information
dispute”
Fed. R. Crim. P. 32(i)(3)(B).
in
a
before
PSR,
the
imposing
a
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
information in a PSR has an “affirmative duty” to show that the
information is incorrect.
United States v. Terry, 916 F.2d 157,
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
court’s determinations regarding the reliability of information
in a PSR.
We will not disturb a court’s determination regarding
the reliability of a PSR unless we are “left with the definite
and firm conviction that a mistake has been committed.”
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.
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III.
McDowell
initially
contends
that
the
NCIC
report
cannot
establish, even by a preponderance of the evidence, the fact of
the 1971 conviction.
Every court of appeals to address a similar argument in a
published opinion has rejected it.
All have concluded that a
district court may use an NCIC report to help establish the fact
of a prior conviction.
Two appellate courts have held that an
NCIC report alone may establish a predicate 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
report proved a prior conviction because defendant “provide[d]
no
evidence
States
v.
that
the
NCIC
Marin-Cuevas,
147
report
F.3d
[wa]s
889,
unreliable”);
895
(9th
Cir.
United
1998)
(district court did not err in finding prior conviction because
defendant’s probation officer obtained the information “from a
reliable
source
[--]
the
computerized
criminal
history”).
Another court has concluded that an NCIC report, together with a
letter from a court clerk attesting to the conviction, sufficed
to prove a prior conviction.
United States v. Martinez-Jimenez,
464 F.3d 1205, 1212 (10th Cir. 2006).
And a fourth court has
held that an NCIC report may establish a prior conviction, but
only if the district court makes additional findings that the
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report is reliable.
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United States v. Bryant, 571 F.3d 147, 155
(1st Cir. 2009).
McDowell distinguishes some of these cases and dismisses
others as wrongly decided.
He raises concerns with respect to
the reliability of NCIC reports in general and his report in
particular.
We address each of these arguments in turn.
A.
First, McDowell suggests that NCIC reports are inherently
too inaccurate to be relied on at sentencing.
To support this
argument, he points to cases in which information included in an
NCIC report was found to be false.
He notes that such reports
lack
court
the
reliability
of
certified
records,
which
are
created for the express purpose of memorializing the fact of a
criminal conviction.
is
to
help
And he emphasizes that a goal of the NCIC
officers
safely,” NCIC
“perform[]
Website,
supra,
their
from
official
which
he
duties
infers
more
that
the
database errs on the side of overinclusivity.
Certainly, some case law does support McDowell’s contention
that
the
NCIC
database
is
fallible.
See,
e.g.,
Baker
v.
McCollan, 443 U.S. 137, 141 (1979) (criminal background check
mistakenly attributed to defendant a crime actually committed by
his brother); United States v. Kattaria, 553 F.3d 1171, 1177
(8th Cir. 2009) (en banc) (NCIC report mistakenly indicated that
defendant’s
prior
conviction
involved
11
a
firearm);
Finch
v.
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Chapman, 785 F. Supp. 1277, 1278–79 (N.D. Ill. 1992) (mistake in
NCIC database led twice to plaintiff’s wrongful arrest).
But,
although
McDowell
purports
to
raise
an
empirical
question regarding the accuracy of NCIC reports, he provides no
evidence to suggest that the NCIC database proves inaccurate
with any
significant
frequency.
Indeed,
when
asked
at
oral
argument whether he could cite statistical evidence regarding
the accuracy of the NCIC database, McDowell’s counsel pointed to
Urbina-Mejia,
450
F.3d
at
839,
which
recounted
a
probation
officer’s 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
unreliability; rather, it severely undermines McDowell’s claim
that NCIC reports cannot be trusted.
Moreover,
we
note
that
the
limited
available
evidence
suggests that the NCIC database is generally (albeit not always)
accurate.
History
See Improving Access to and Integrity of Criminal
Records,
Bureau
of
Justice
Statistics
2
(2005)
(estimating 0.1% error rate in firearm background checks, which
rely
on
the
NCIC);
Electronic
Record
Systems
and
Individual
Privacy, Fed. Gov’t Info. Tech., 133-34 (June 1986) (audit of
five states’ records indicated that 5.5% of NCIC wanted persons
entries were invalid).
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The pervasive use of NCIC reports throughout the criminal
justice
system
trusted.
further
indicates
that
such
reports
may
be
Courts use NCIC reports to make bail and pretrial
release decisions; prosecutors rely on NCIC reports at trial to
prove
that
witnesses
committed
probation
officers
use
criminal
histories
at
Criminal
History
NCIC
a
reports
sentencing.
Record
relevant
to
See
prior
establish
Use
Information,
and
Bureau
crime;
and
defendants’
Management
of
of
Justice
Statistics 18-20 (2001); United States v. Wilson, No. 09–20138,
2009 WL 3818192, at *1 (E.D. Mich. Nov. 13, 2009) (NCIC report
used
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
defendant’s
criminal
In view of this widespread use of NCIC
reports, we cannot agree with McDowell’s blanket assertion that
NCIC reports are categorically unreliable. ∗
∗
The Supreme Court has cautiously authorized the police to
rely on computerized record checks -- even ones that later prove
inaccurate -- to execute warrants.
In Arizona v. Evans, 514
U.S. 1 (1995), police arrested and searched a defendant based on
a record check mistakenly indicating that he was subject to an
outstanding arrest warrant.
The Court declined to address
whether the arrest itself violated the Fourth Amendment, id. at
6 n.1, but concluded that evidence discovered during the arrest
need not be suppressed, id. at 16.
Three Justices (on whose
concurrence the majority disposition depended) emphasized that
police may rely on computer records only to the extent that such
reliance is reasonable.
They explained that while the police
“are entitled to enjoy the substantial advantages [computer(Continued)
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B.
Alternatively,
McDowell
argues
that,
even
if
courts
can
generally trust NCIC reports, the specific report at issue here
manifests
such
blatant
indicia
of
unreliability
district court clearly erred in crediting it.
that
the
He contends that
the NCIC report’s inaccurate statement of his name and birthday
and
the
passage
of
forty
years
since
the
alleged
New
York
conviction renders the report unworthy of credence.
These issues do cast some doubt on the report’s accuracy.
But,
as
noted
explanations
above,
regarding
the
each
Government
of
the
provided
report’s
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
probation officer clarified that an NCIC report includes any
names and birthdays provided by the defendant upon arrest -including false ones.
The probation officer also stated that he
had spoken with an FBI agent who confirmed that the NCIC report
linked
McDowell
analysis.
to
the
1971
assault
through
fingerprint
In addition, the Government pointed out that McDowell
based recordkeeping] technology confers,” they may not “rely on
it blindly.”
Id. at 17 (O’Connor, J., concurring).
Because
there was no reason to doubt the accuracy of the record check at
issue in that case, the concurrence agreed that the police acted
reasonably in relying on it.
Accord Herring v. United States,
555 U.S. 135, 146 (2009).
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had been convicted of other crimes in the Bronx under the alias
“Michael” shortly before 1971, rendering the subsequent assault
conviction more likely.
And finally, the Government noted that
McDowell
of
was
convicted
a
federal
crime
in
1983
--
a
conviction that would have resulted in a criminal background
check revealing the 1971 conviction -- and that if he had a
legitimate basis for challenging the 1971 conviction, would have
done so then.
These explanations vary in their persuasiveness, and, even
taken together, fail to erase all doubts regarding the accuracy
of the NCIC report at issue here.
But the district court did
not clearly err in crediting them.
Together, these explanations
sufficiently substantiated the information in the NCIC report to
permit the court to conclude by a preponderance of the evidence
that McDowell committed the 1971 assault.
the
district
court
elicited
facts
Indeed, given that
rebutting
McDowell’s
objections to the NCIC report and corroborating the information
contained
in
it,
the
district
court’s
ruling
would
seem
to
satisfy even the First Circuit’s requirement that the sentencing
court make an “additional inquiry into the reliability” of an
NCIC report before relying on it.
Bryant, 571 F.3d at 155.
We need not and do not hold that a contested NCIC report
standing alone would suffice to establish the fact of a prior
conviction.
We
hold
only
that
15
the
district
court
did
not
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clearly err in finding that this report, in addition to the
corroboration provided by the Government, established the fact
of the 1971 conviction by a preponderance of the evidence.
IV.
McDowell
proceedings
also
ascribes
below.
He
constitutional
contends
that
error
in
to
the
applying
the
preponderance-of-the-evidence standard to establish the fact of
his
prior
conviction,
the
district
court
violated
his
Sixth
Amendment right to have a jury find each element of his offense
beyond a reasonable doubt.
At oral argument, the Government
conceded that the NCIC report would not suffice to prove the
fact of McDowell’s 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
a
v.
jury,
New
and
proved
Jersey,
530
beyond
U.S.
a
466,
reasonable
490
(2000)
(announcing this rule with respect to statutory maximums); see
also Alleyne v. United States, 133 S. Ct. 2151, 2163 (2013)
(extending the rule to mandatory minimums).
demanding
judgment
reasonable-doubt
about
the
way
justice administered.”
in
standard
which
law
Adherence to the
“reflect[s]
should
be
a
profound
enforced
and
Apprendi, 530 U.S. at 478 (quoting In re
Winship, 397 U.S. 358, 361-62 (1970)) (alteration in original).
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Because an ACCA enhancement increases both a defendant’s
statutory
maximum
and
mandatory
minimum
penalties,
the
Sixth
Amendment would seem to require the Government to prove an ACCA
predicate felony beyond a reasonable doubt.
however,
has
recognized
Amendment rule:
an
exception
to
the
general
Sixth
a jury need not find the “fact of a prior
conviction” beyond a reasonable doubt.
490.
The Supreme Court,
Instead,
the
Court
has
held
Apprendi, 530 U.S. at
that
the
Sixth
Amendment
permits a judge to find the fact of a prior conviction by a mere
preponderance
of
the
evidence,
even
if
this
fact
raises
the
statutory maximum or minimum penalty for the current offense.
Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998).
The Supreme Court has since described the Almendarez-Torres
holding as “at best an exceptional departure” from the normal
Sixth Amendment rule.
Apprendi, 530 U.S. at 487.
The Court has
justified this “departure” on the ground that the defendant in
Almendarez-Torres “did not challenge the accuracy of [the prior
conviction] in his case” and that the prior conviction arose
“pursuant to proceedings with substantial procedural safeguards
of their own.”
protections
Id. at 488.
“mitigated
the
The Court reasoned that these twin
due
process
and
Sixth
Amendment
concerns otherwise implicated in allowing a judge to determine a
‘fact’ increasing punishment beyond the maximum of the statutory
range.”
Id.
17
Appeal: 13-4370
Doc: 40
Four
Thomas,
Filed: 03/11/2014
Justices
who
subsequently
decided.
dissented
joined
stated
the
that
Pg: 18 of 20
in
Almendarez-Torres.
Almendarez-Torres
he
believes
the
Justice
majority,
case
was
has
wrongly
See Shepard v. United States, 544 U.S. 13, 28 (2005)
(Thomas, J., concurring).
Moreover, the Supreme Court’s recent
characterizations of the Sixth Amendment are difficult, if not
impossible,
to
reconcile
with
Almendarez-Torres’s
exception to Sixth Amendment protections.
lonely
See Alleyne, 133 S.
Ct. at 2160 (“any facts that increase the prescribed range of
penalties to which a criminal defendant is exposed are elements
of the crime” that a jury must find beyond a reasonable doubt
(quotation
Sixth
between
and
a
marks
omitted));
Fourteenth
defendant
Shepard,
Amendments
and
the
544
U.S.
guarantee
power
of
a
the
at
25
jury
State,
(“[T]he
standing
and
they
guarantee a jury’s finding of any disputed fact essential to
increase the ceiling of a potential sentence.”).
Notwithstanding
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
Appeal: 13-4370
the
Doc: 40
Filed: 03/11/2014
prerogative
of
Pg: 19 of 20
overruling
its
own
decisions”
(quotation
marks omitted)).
But even as we reject McDowell’s Sixth Amendment claim, we
feel bound to acknowledge its force.
The rationales justifying
the
entirely
Almendarez-Torres
case.
his
exception
are
absent
in
this
Unlike Almendarez-Torres, McDowell does not concede that
prior
conviction
in
fact
occurred.
Nor
was
there
any
assurance that the disputed 1971 conviction arose “pursuant to
proceedings with substantial procedural safeguards of their own”
that
mitigate
McDowell’s
Apprendi, 530 U.S. at 488.
Sixth
Amendment
concerns.
See
Application of the Almendarez-Torres
exception to this case thus untethers the exception from its
justifications
and
lays
bare
the
exception’s
incompatibility
with constitutional principles that are by now well settled.
V.
The district court increased McDowell’s 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
members of the Supreme Court have expressed their belief that
the
Sixth
Amendment
powerfully
testifies
prohibits
why
this
practice.
reconsideration
Torres exception may be warranted.
19
of
the
This
case
Almendarez-
Under current law, however,
Appeal: 13-4370
a
Doc: 40
court
may
preponderance
Filed: 03/11/2014
find
of
the
the
fact
Pg: 20 of 20
of
evidence.
a
prior
Applying
conviction
this
by
standard,
a
the
district court did not clearly err in concluding that McDowell
committed the 1971 assault.
The judgment of the district court
is therefore
AFFIRMED.
20
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