USA v. William Hoover

Filing

UNPUBLISHED OPINION FILED. [09-50670 Affirmed] Judge: EHJ , Judge: TMR , Judge: CH. Mandate pull date is 10/28/2010 for Appellant William Ross Hoover [09-50670]

USA v. William Hoover

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Case: 09-50670

Document: 00511256340

Page: 1

Date Filed: 10/07/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
October 7, 2010 N o . 09-50670 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. W I L L I A M ROSS HOOVER, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 3:09-CR-46-1

B e fo r e JONES, Chief Judge, and REAVLEY and HAYNES, Circuit Judges. P E R CURIAM:* W illia m Ross Hoover appeals his sentence following his conviction for im p o r t in g and possessing with intent to distribute marijuana. He argues that h e should not have been subject to an enhanced statutory mandatory minimum s e n te n c e because the Government failed to meet its burden of establishing the fin a lity of a prior state drug conviction at the time he committed the instant o ffe n s e s . We AFFIRM.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Dockets.Justia.com

Case: 09-50670

Document: 00511256340

Page: 2

Date Filed: 10/07/2010

No. 09-50670 H o o v e r 's mandatory minimum statutory sentence was increased from five y e a r s to ten years because the district court found that Hoover committed the in s t a n t offenses "after a prior conviction for a felony drug offense has become fin a l." 21 U.S.C. § 841(b)(1)(B). Approximately four months before committing t h e instant drug offenses, Hoover pleaded guilty in Texas state court to p o s s e s s io n of marijuana and was sentenced to five years of deferred adjudication p r o b a t io n . As evidence that the state conviction was final, the Government s u b m it t e d the state court judgment and a document captioned "Criminal R e c o r d s Detail Results," which was akin to a state docket sheet and which s h o w e d that no appeal had been filed in Hoover's state case by April 3, 2009. Hoover contends that these documents were insufficient to establish that his s t a t e conviction was final. A conviction is final when it is no longer subject to examination on direct a p p e a l and is not subject to discretionary review in any court. See United States v . Andrade-Aguilar, 570 F.3d 213, 218 (5th Cir. 2009). The Government bears t h e burden of proving finality based on a preponderance of the evidence. Id. I n Andrade-Aguilar, we held that a state judgment showing the defendant w a s convicted in state court 115 days before the federal offense was insufficient t o show the state conviction was final because the judgment did not show that t h e defendant had waived his appellate rights, and it was unclear from the r e c o r d whether the period for both direct and discretionary review had expired. Id. Hoover contends that his case is controlled by Andrade-Aguilar. Unlike that c a s e , however, the Government here offered evidence from the state court docket s h e e t in addition to the state court judgment. In Texas, a judgment of deferred a d ju d ic a t io n becomes final thirty days after it is imposed if it is not appealed. See United States v. Vasquez, 298 F.3d 354, 358­59 (5th Cir. 2002). A notice of a p p e a l must be filed with the trial court clerk, see TEX. R. APP. P. 25.2(c)(1), who is required by law to maintain a record of all proceedings in criminal cases. TEX. 2

Case: 09-50670

Document: 00511256340

Page: 3

Date Filed: 10/07/2010

No. 09-50670 C ODE CRIM. PROC. ANN. art. 33.07. Because Hoover's state docket sheet shows t h a t no appeal had been filed in Hoover's case, and the time for filing a direct a p p e a l has passed, the district court did not err in finding that the conviction is fin a l. H o o v e r contends that the docket sheet is unreliable and may not support a finding that he did not file a notice of appeal. He argues that the docket sheet is uncertified and lacks information that a complete and accurate docket sheet w o u ld be expected to contain. Specifically, he argues that it lacks a certification p u r s u a n t to TEX. R. APP. P. 25.2(a)(2) & (h) that he was advised of his appellate r ig h ts . We are unconvinced. The document reflects that a notice of

r ig h t s /a d m o n is h m e n ts was given to Hoover on the same date that judgment was e n te r e d . Hoover makes no argument that there is anything otherwise inaccurate a b o u t the docket sheet, and we find that it contains sufficient indicia of r e lia b ilit y , including all pertinent data about Hoover, the offense of conviction, a n d the case disposition. Because Hoover offers no reasonable ground to

q u e s t io n the regularity of the docket sheet, and we see none, we hold that the d is t r ic t court properly considered it. See, e.g., United States v. Strickland, 601 F .3 d 963, 969­70 (9th Cir. 2010) (en banc) (holding that lack of certification of s t a t e docket sheet was not itself a legitimate ground to question its reliability as e v id e n c e of the type of prior offense defendant committed). H o o v e r also argues that the docket sheet is unreliable as proof of finality b e c a u s e it does not reflect whether he sought discretionary review in the Texas C o u r t of Criminal Appeals or in the United States Supreme Court. He argues t h a t a trial court docket sheet would not reflect the pendency of discretionary r e v ie w because a petition for discretionary review in the Texas Court of Criminal A p p e a ls is filed with the clerk of the appellate court, not the trial court, see TEX. R . APP. P. 68.3, and a petition for writ of certiorari is filed in the United States S u p r e m e Court. See SUP. CT. R. 1.1, 12.1, 29.1. In order to obtain discretionary 3

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Document: 00511256340

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Date Filed: 10/07/2010

No. 09-50670 r e v ie w in the Court of Criminal Appeals, however, Hoover was required to first a p p e a l to the state appellate court. See Farrell v. State, 864 S.W.2d 501, 502 (T e x . Crim. App. 1993) (Court of Criminal Appeals' "review is limited to decisions o f the courts of appeals"); TEX. R. APP. P. 68.1 ("On petition by any party, the C o u r t of Criminal Appeals may review a court of appeals' decision in a criminal c a s e . " ); TEX. R. APP. P. 71.1 (providing direct appeal to the Court of Criminal A p p e a ls only in capital cases and when bail pending trial has been denied, n e ith e r of which is applicable in the instant case). Similarly, to obtain certiorari fr o m the Supreme Court, Hoover would have had to first seek review in the T e x a s Court of Criminal Appeals. See SUP. CT. R. 10, 13.1. Because we know fr o m the docket sheet that Hoover filed no appeal at all, his conviction was not s u b je c t to discretionary review in any court. B a s e d on the preponderance of evidence standard, we are satisfied that the G o v e r n m e n t met its burden of proof to show that Hoover's prior conviction was fin a l at the time he committed the instant offenses. A F F IR M E D .

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