Case: 09-50670 Document: 00511256340 Page: 1 Date Filed: 10/07/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 7, 2010
No. 09-50670 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
WILLIAM ROSS HOOVER,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:09-CR-46-1
Before JONES, Chief Judge, and REAVLEY and HAYNES, Circuit Judges.
PER CURIAM:*
William Ross Hoover appeals his sentence following his conviction for
importing and possessing with intent to distribute marijuana. He argues that
he should not have been subject to an enhanced statutory mandatory minimum
sentence because the Government failed to meet its burden of establishing the
finality of a prior state drug conviction at the time he committed the instant
offenses. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-50670 Document: 00511256340 Page: 2 Date Filed: 10/07/2010
No. 09-50670
Hoover’s mandatory minimum statutory sentence was increased from five
years to ten years because the district court found that Hoover committed the
instant offenses “after a prior conviction for a felony drug offense has become
final.” 21 U.S.C. § 841(b)(1)(B). Approximately four months before committing
the instant drug offenses, Hoover pleaded guilty in Texas state court to
possession of marijuana and was sentenced to five years of deferred adjudication
probation. As evidence that the state conviction was final, the Government
submitted the state court judgment and a document captioned “Criminal
Records Detail Results,” which was akin to a state docket sheet and which
showed 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
state conviction was final.
A conviction is final when it is no longer subject to examination on direct
appeal 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
the burden of proving finality based on a preponderance of the evidence. Id.
In Andrade-Aguilar, we held that a state judgment showing the defendant
was convicted in state court 115 days before the federal offense was insufficient
to show the state conviction was final because the judgment did not show that
the defendant had waived his appellate rights, and it was unclear from the
record whether the period for both direct and discretionary review had expired.
Id. Hoover contends that his case is controlled by Andrade-Aguilar. Unlike that
case, however, the Government here offered evidence from the state court docket
sheet in addition to the state court judgment. In Texas, a judgment of deferred
adjudication becomes final thirty days after it is imposed if it is not appealed.
See United States v. Vasquez, 298 F.3d 354, 358–59 (5th Cir. 2002). A notice of
appeal must be filed with the trial court clerk, see T EX. R. A PP. P. 25.2(c)(1), who
is required by law to maintain a record of all proceedings in criminal cases. T EX.
2
Case: 09-50670 Document: 00511256340 Page: 3 Date Filed: 10/07/2010
No. 09-50670
C ODE C RIM. P ROC. A NN. art. 33.07. Because Hoover’s state docket sheet shows
that no appeal had been filed in Hoover’s case, and the time for filing a direct
appeal has passed, the district court did not err in finding that the conviction is
final.
Hoover 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
would be expected to contain. Specifically, he argues that it lacks a certification
pursuant to T EX. R. A PP. P. 25.2(a)(2) & (h) that he was advised of his appellate
rights. We are unconvinced. The document reflects that a notice of
rights/admonishments was given to Hoover on the same date that judgment was
entered. Hoover makes no argument that there is anything otherwise inaccurate
about the docket sheet, and we find that it contains sufficient indicia of
reliability, including all pertinent data about Hoover, the offense of conviction,
and the case disposition. Because Hoover offers no reasonable ground to
question the regularity of the docket sheet, and we see none, we hold that the
district court properly considered it. See, e.g., United States v. Strickland, 601
F.3d 963, 969–70 (9th Cir. 2010) (en banc) (holding that lack of certification of
state docket sheet was not itself a legitimate ground to question its reliability as
evidence of the type of prior offense defendant committed).
Hoover also argues that the docket sheet is unreliable as proof of finality
because it does not reflect whether he sought discretionary review in the Texas
Court of Criminal Appeals or in the United States Supreme Court. He argues
that a trial court docket sheet would not reflect the pendency of discretionary
review because a petition for discretionary review in the Texas Court of Criminal
Appeals is filed with the clerk of the appellate court, not the trial court, see T EX.
R. A PP. P. 68.3, and a petition for writ of certiorari is filed in the United States
Supreme Court. See S UP. C T. R. 1.1, 12.1, 29.1. In order to obtain discretionary
3
Case: 09-50670 Document: 00511256340 Page: 4 Date Filed: 10/07/2010
No. 09-50670
review in the Court of Criminal Appeals, however, Hoover was required to first
appeal to the state appellate court. See Farrell v. State, 864 S.W.2d 501, 502
(Tex. Crim. App. 1993) (Court of Criminal Appeals’ “review is limited to decisions
of the courts of appeals”); T EX. R. A PP. P. 68.1 (“On petition by any party, the
Court of Criminal Appeals may review a court of appeals’ decision in a criminal
case.”); T EX. R. A PP. P. 71.1 (providing direct appeal to the Court of Criminal
Appeals only in capital cases and when bail pending trial has been denied,
neither of which is applicable in the instant case). Similarly, to obtain certiorari
from the Supreme Court, Hoover would have had to first seek review in the
Texas Court of Criminal Appeals. See S UP. C T. R. 10, 13.1. Because we know
from the docket sheet that Hoover filed no appeal at all, his conviction was not
subject to discretionary review in any court.
Based on the preponderance of evidence standard, we are satisfied that the
Government met its burden of proof to show that Hoover’s prior conviction was
final at the time he committed the instant offenses.
AFFIRMED.
4