United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 22, 2009 Decided January 15, 2010
No. 08-3009
UNITED STATES OF AMERICA,
APPELLEE
v.
JEROME M. CARTER,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cr-00215-RBW-1)
Beverly G. Dyer, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A.
J. Kramer, Federal Public Defender. Tony W. Miles,
Assistant Federal Public Defender, entered an appearance.
Ryan W. Bounds, Assistant U.S. Attorney, argued the
cause for appellee. On the brief were Jeffrey A. Taylor, U.S.
Attorney at the time the brief was filed, and Roy W. McLeese
III, Elizabeth Trosman, and Ann K. Simon, Assistant U.S.
Attorneys.
2
Before: SENTELLE, Chief Judge, GRIFFITH and
KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: Jerome Carter pled guilty to
five counts of bank robbery and was sentenced to 150 months
in prison. The length of his sentence was based, in part, on the
district court’s finding that his criminal history included four
theft convictions in Maryland. On appeal, Carter challenges
that finding because it was based solely on state court
computer records that are, he argues, insufficient to prove
prior convictions. We disagree and affirm the sentence.
I.
Over the span of six weeks in June and July 2007, Carter
netted more than $17,000 in a string of bank robberies across
Washington, D.C. The police arrested Carter on July 29,
2007. On October 5, he pled guilty to five counts of bank
robbery in violation of 18 U.S.C. § 2113(a) (2006). In the
Presentence Investigation Report (PSR), the United States
Probation Office calculated a Sentencing Guidelines range of
120 to 150 months, based in part on Carter’s criminal history.
Using the Guidelines point system, the PSR assigned Carter a
criminal history score of 18. Six of his 18 points came from
four Maryland theft convictions. The PSR did not report the
source of its information about the Maryland convictions.
In a presentence memorandum filed with the court, Carter
objected to the PSR’s calculation of his criminal history score,
claiming there was insufficient evidence of the prior
Maryland theft convictions. Carter argued the district court
could not use a criminal history score that relied on these
insufficiently substantiated prior convictions. Omitting the
Maryland convictions, Carter maintained his criminal history
3
score was only 12, which, when combined with his total
offense score, corresponds to a guideline range of 110 to 137
months.
At the sentencing hearing, the government produced
Maryland state court records of the disputed convictions. App.
at 46–62. The records were printouts of entries from the
District Court of Maryland Criminal System Inquiry
Charge/Disposition Display database. The database entries for
each conviction include Carter’s name, other identifying
characteristics, the charge, the case number, the plea, the
disposition, and the sentence. The Maryland court clerk’s
office certified each printout.1
In the face of these records, Carter continued his
objection to the sufficiency of the evidence, arguing that the
possibility of data-entry errors rendered the computer records
inherently unreliable. He suggested the government needed to
produce a copy of the “actual court jacket” for each
proceeding to prove the prior convictions. Tr. 3. The district
court offered to postpone the hearing to give Carter an
opportunity to present contrary evidence. Carter declined. Id.
at 5–6.
The district court rejected Carter’s challenge, concluding
the computer records were reliable evidence of the Maryland
convictions. Id. at 6. The district court adopted the PSR’s
calculation of a criminal history score of 18 and its
1
The government provided this documentation for not only the
four theft convictions mentioned above, but also two other
Maryland convictions against which Carter lodges the same
sufficiency challenge. Because those two convictions were more
than ten years old at the time of the instant offense, they did not
count towards Carter’s criminal history score or impact his
guideline range. See U.S. SENTENCING GUIDELINES MANUAL
§ 4A1.2(e)(2) (2008) [hereinafter U.S.S.G.].
4
recommended guideline range of 120 to 150 months. The
court then sentenced Carter to 150 months’ imprisonment.
Carter appeals that sentence. We have jurisdiction under 18
U.S.C. § 3742.
II.
Carter’s appeal challenges the district court’s factual
conclusion that Carter was convicted of the four Maryland
theft offenses used to enhance his criminal history score. We
review the district court’s factual findings at sentencing for
clear error, see In re Sealed Case, 552 F.3d 841, 844 (D.C.
Cir. 2009) (quoting Gall v. United States, 552 U.S. 38, 51
(2007)), which means that “we affirm unless we are ‘left with
the definite and firm conviction that a mistake has been
committed.’” United States v. Brockenborrugh, 575 F.3d 726,
738 (D.C. Cir. 2009) (quoting United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948)).
When seeking a sentence enhancement, the government
must prove a prior conviction by a preponderance of the
evidence. See In re Sealed Case, 552 F.3d at 846. Carter
argues the certified computer records the government
proffered were insufficient to meet this burden because they
are unreliable.
Evidence is competent to support factual findings at
sentencing if it bears “sufficient indicia of reliability to
support its probable accuracy.” U.S. SENTENCING GUIDELINES
MANUAL § 6A1.3 (2008) [hereinafter U.S.S.G.]. The certified
records of a state court are presumptively reliable. See FED. R.
EVID. 803(8) advisory committee’s note (justifying the
hearsay exception for public records on the basis of their
inherent reliability). The presumed reliability of public
records “is found in the declarant’s official duty and the high
probability that the duty to make an accurate report has been
5
performed.” 2 MCCORMICK ON EVIDENCE § 295, at 328 (6th
ed. 2006); see Chesapeake & Del. Canal Co. v. United States,
250 U.S. 123, 128–29 (1919) (explaining why public records
are “unusually trustworthy sources of evidence”). Other
courts have found similar certified state court records
sufficiently reliable to support a finding of a prior conviction
at sentencing. See United States v. Zuniga-Chavez, 464 F.3d
1199, 1203–04 (10th Cir. 2006); United States v. Thompson,
274 F. App’x 453, 455 (6th Cir. 2008); see also United States
v. Felix, 561 F.3d 1036, 1042–43 (9th Cir. 2009) (holding an
uncertified printout from a state court conviction database
sufficiently reliable to support a finding of a prior conviction);
United States v. Cousin, 219 F. App’x 190, 194 (3d Cir. 2007)
(same); United States v. Esparza-Varela, 106 F. App’x 1, 4
(10th Cir. 2004) (same). Carter cites to no case holding
certified records from a state court’s disposition database
insufficient to support a finding of a prior conviction by a
preponderance of the evidence, and we are unaware of any.
Carter nevertheless argues these computer records cannot
be reliable because there is no assurance that they conform to
the official case files or signed judgments of conviction.
Appellant’s Br. at 5–7. We recognize the possibility of human
error in data entry. But the mere possibility of error—the
lynchpin of Carter’s argument—does not warrant the
conclusion that these records, maintained and certified by a
state court, are inherently unreliable. See Thompson, 274 F.
App’x at 455 (noting that the defendant’s “unsubstantiated
aspersions” do not discredit certified database records of a
state court). Absent evidence of inaccuracy or unreliability,
the Maryland state courts’ certified computer records are
sufficient to prove a prior conviction at sentencing.
Accordingly, the district court did not clearly err in finding
that Carter’s criminal history included the prior Maryland
convictions. This is not to say certified computer records of
6
conviction are irrefutable. A defendant must have the
opportunity to contest their accuracy. See United States v.
Booze, 108 F.3d 378, 381 (D.C. Cir. 1997). Here, the district
court afforded Carter this chance, but he declined.
For the first time on appeal, Carter points to a
discrepancy between the computer record corresponding to
his 1998 theft conviction and the PSR’s description of the
same offense. The computer record indicates a one-year
sentence for this conviction, whereas the PSR lists a sentence
of 60 days. Appellant’s Br. at 9. Carter alleges no other
inaccuracies in the records but presents this discrepancy as
demonstrative evidence of their general unreliability. We are
unconvinced. This single alleged inaccuracy does not
introduce clear error into the district court’s conclusion that
these records were reliable evidence of prior convictions.2
Carter also attempts to discredit the certified computer
records because they present certain information in a
truncated format. In particular, the records do not cite the
statute under which Carter was convicted. They state simply
“Theft: Less $300 Value.” See, e.g., App. at 57. Carter
suggests the omission of the statute of conviction renders
these records inadequate for certain determinations under the
Guidelines. Appellant’s Br. at 12–13. This may be true in
some cases, such as when a sentencing court may need to
2
Nor does this discrepancy create reversible error in the district
court’s calculation of Carter’s criminal history score. Both the
computer record and the PSR’s account establish that Carter was
convicted of theft in 1998 and received a sentence of at least 60
days. That is sufficient to support the district court’s finding that
Carter had a conviction resulting in a sentence of 60 days or more,
see United States v. Richardson, 161 F.3d 728, 737–38 (D.C. Cir.
1998), which in turn supports assessing two criminal history points
for this offense. See U.S.S.G. § 4A1.1(b).
7
consider the statute of conviction to determine if a prior
offense is a “crime of violence” under the Guidelines. See
United States v. Andrews, 479 F.3d 894, 897 (D.C. Cir. 2007);
U.S.S.G. § 4A1.1(f) (enhancing a criminal history score for a
conviction for a “crime of violence”). But when assessing
criminal history points in general, a court need not know the
precise statute of conviction. Identification of the offense, the
length of the sentence, and the recency of the sentence are
usually sufficient to assess criminal history points for a prior
conviction. See U.S.S.G. §§ 4A1.1(a)–(c), 4A1.2(c), (e). The
Maryland records provided this essential data. Indeed, Carter
does not allege that the records omitted information necessary
to the correct calculation of his criminal history score. That
the Maryland records might lack necessary information for
some other Guidelines calculation does not render them
inadequate for the calculation accomplished here.
Finally, Carter argues our decision in United States v.
Price, 409 F.3d 436 (D.C. Cir. 2005), precludes the district
court’s conclusion that the certified computer records of
conviction were reliable. Like Carter, the defendant in Price
challenged the sufficiency of the evidence of his prior
convictions. In Price, the Probation Office alluded to
unspecified and unproduced state court documents in support
of the PSR’s description of the defendant’s prior convictions.
The Price court concluded that this unadorned reference was
insufficient to “demonstrate that the description in the [PSR]
is based on a sufficiently reliable source to establish [its]
accuracy.” Id. at 444. In reaching this conclusion, the court
suggested, “[t]his reference could be, for instance, to a docket
listing, which would lack the necessary indicia of reliability
for the Government to meet its burden . . . .” Id. at 445. From
this one-sentence hypothetical, Carter creates the proposition
that the certified records proffered here are unreliable.
Appellant’s Br. at 10.
8
Carter reads too much into Price. The Price court did not
have before it any specific documentation supporting the
alleged convictions. The court did not describe what
information its hypothesized docket listing contained or
whether the docket listing was an officially certified court
record. Here, the sentencing court had before it certified
records with information sufficient to identify the defendant
and make the necessary criminal history calculation. It did not
rely simply on an unadorned PSR reference to state court
records; it had the records themselves. We decline to conclude
the Price court’s dictum concerning a hypothetical PSR
reference to a hypothetical docket listing forecloses reliance
on the certified Maryland court records proffered here.
III.
Taking another tack in his challenge to the Maryland
records, Carter argues they were insufficient to prove a prior
conviction under Shepard v. United States, 544 U.S. 13
(2005), and Apprendi v. New Jersey, 530 U.S. 466 (2000). He
claims these cases require the government to prove a prior
conviction with a “conclusive judicial record of conviction[]”
or its equivalent. Reply Br. at 9. The government maintains
Carter failed to preserve this argument below and therefore
we should review only for plain error. “Under plain error
review, we may reverse only if: (1) there is error (2) that is
plain and (3) that affects substantial rights, and (4) we find
that the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” United States v. Mouling,
557 F.3d 658, 663 (D.C. Cir. 2009) (internal quotation marks
and citations omitted). Carter contends we should review this
question of law de novo. We need not decide which standard
of review applies, because even under the more exacting de
novo standard, Carter’s argument fails. Neither Shepard nor
Apprendi establishes a requirement that the government prove
a prior conviction through only a conclusive judicial record of
9
conviction. Neither case involves the issue raised by the
district court’s reliance on the Maryland court records: the
type or quantity of evidence needed to establish the fact of a
prior conviction.
Shepard concerns how a sentencing court determines the
“character” of an offense to which a defendant previously
pled guilty. 544 U.S. at 16. Application of the Armed Career
Criminal Act (ACCA), which imposes sentence
enhancements where a defendant has prior convictions for
certain predicate offenses, 18 U.S.C. § 924(e), can require a
sentencing court to find facts concerning the conduct that
gave rise to a defendant’s prior conviction. For instance,
burglary is an ACCA predicate offense with a particular
definition. A state statute may define burglary more broadly
than does the ACCA. In this scenario, a defendant’s state
burglary conviction does not necessarily qualify as a burglary
under the ACCA. To determine if it does, a sentencing court
would need to ascertain whether the conduct giving rise to the
defendant’s state conviction satisfied the elements of burglary
as defined in the ACCA. Shepard limits the evidence a
sentencing court may consider when making this factual
inquiry. Specifically, “a later court determining the character
of an admitted [offense] is generally limited to examining the
statutory definition, charging document, written plea
agreement, transcript of plea colloquy, and any explicit
factual finding by the trial judge to which the defendant
assented.” Shepard, 524 U.S. at 16. Carter argues that
Shepard’s limits should apply more generally to any judicial
determination involving a prior conviction.
Shepard cannot be stretched so far. It “did not address
what documents can be used to prove the fact of a prior
conviction, but was concerned only with what documents can
be used to prove the facts underlying a conviction.” Zuniga-
Chavez, 464 F.3d at 1204. The concerns motivating the
10
evidentiary limitations in Shepard—“the unpleasant and
potentially unfair specter of retrying past crimes as part of the
sentencing of the instant offense,” United States v. Bridges,
175 F.3d 1062, 1073 (D.C. Cir. 1999) (discussing Shepard’s
progenitor Taylor v. United States, 495 U.S. 575 (1990))—are
not present here. “Establishing the fact of a prior crime is a
more discrete inquiry that is not as susceptible to the lengthy
and cumbersome collateral trials of the kind the Shepard . . .
Court[] hoped to avoid.” United States v. Bryant, 571 F.3d
147, 154 (1st Cir. 2009). We therefore join our sister circuits
in concluding that “Shepard does not apply when determining
whether the government has satisfied its burden of proof as to
the existence of a prior conviction.” United States v. Neri-
Hernandes, 504 F.3d 587, 591 (5th Cir. 2007); see Bryant,
571 F.3d at 154; Zuniga-Chavez, 464 F.3d at 1204; United
States v. Warwick, 149 F. App’x 464, 468 n.1 (6th Cir. 2005).
Carter’s attempt to find support in Apprendi fares no
better. In Apprendi, the Supreme Court held that “[o]ther than
the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable
doubt.” 530 U.S. at 490. The Court exempted proof of a prior
conviction from the right to a jury trial and permitted judicial
determination of this particular fact because of the
“procedural safeguards” attendant to the prior proceeding
from which the conviction resulted. Id. at 488. The Court
explained, “there is a vast difference between accepting the
validity of a prior judgment of conviction entered in a
proceeding in which the defendant had the right to a jury trial
and the right to require the prosecutor to prove guilt beyond a
reasonable doubt, and allowing the judge to find” facts never
before admitted or proved in a comparable proceeding. Id. at
496. Carter argues that reliance on computer records lacking
the “procedural safeguard” of a “signature by the sentencing
11
court” or its equivalent “defeats the purpose of relying on
procedural safeguards to justify exempting prior convictions
from the right to [a] jury trial.” Appellant’s Br. at 11.
Apprendi’s reliance on “procedural safeguards” concerns
the proceeding in which a prior conviction was rendered, not
the evidence used to prove the prior conviction in a
subsequent sentencing. Utilizing a reliable computerized
record of conviction—itself subject to adversarial testing at
sentencing—to establish a prior conviction does not
undermine the procedural safeguards attendant to the process
by which the prior conviction was obtained. Apprendi is
inapposite to the issue in this case.
IV.
Carter’s final argument challenging the length of his
sentence is his claim that the district court erroneously
imposed on him the burden of disproving his prior
convictions. He contends that the district court’s offer to
postpone his sentencing hearing so that he could seek
evidence that might rebut the government’s proffer of the
state court records improperly or unconstitutionally imposed
on him the burden of disproving his prior convictions.
Appellant’s Br. at 17–20.
Carter’s argument would only be valid if the evidence
that the government introduced had been insufficient to
sustain its burden of proof. In that case it would have been
improper to place a burden on Carter to prove he was not
convicted of the thefts. But here, the district court explained
that the government’s uncontradicted and reliable evidence
was sufficient to sustain its burden of proof. This placed no
improper or unconstitutional burden on Carter. A defendant at
sentencing may argue that the government’s evidence is
insufficient without putting forward any affirmative evidence.
12
See Mitchell v. United States, 526 U.S. 314, 328-29 (1999).
But that does not mean the defendant prevails if the
government’s evidence satisfies the applicable standard of
proof, as it did here.
V.
Because the district court did not err in concluding the
certified computer records of the Maryland courts were
sufficient to prove his prior convictions, we affirm Carter’s
sentence.
So ordered.