United States Court of Appeals
For the First Circuit
No. 07-1834
UNITED STATES OF AMERICA,
Appellee,
v.
KATHERINE MCKENZIE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Torruella, Selya, and Howard,
Circuit Judges.
Gail M. Latouf, for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.
August 21, 2008
TORRUELLA, Circuit Judge. On December 1, 2006, Katherine
McKenzie pled guilty to distributing five or more grams of cocaine
base. The district court sentenced McKenzie to forty-two months'
imprisonment. McKenzie now appeals her sentence, claiming that the
district court incorrectly assigned two points to her Criminal
History Category ("CHC") score, thus rendering her ineligible for
safety-valve relief under 18 U.S.C. § 3553(f), and that it
improperly credited computerized docket reports showing her past
convictions. After careful consideration, we affirm.
I. Background
In April 2006, McKenzie and two others sold 8.7 grams of
crack cocaine to an undercover Drug Enforcement Administration
agent. McKenzie was arrested and charged with distributing five
grams or more of cocaine base and aiding and abetting such conduct,
in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The
statutory mandatory minimum for violations of § 841(a)(1) involving
more than five grams of crack is sixty months' imprisonment. 21
U.S.C. § 841(b)(1)(B). A sentence below sixty months can, however,
be imposed if the defendant satisfies various enumerated
requirements for safety-valve relief under 18 U.S.C. § 3553(f).
One such requirement is that the defendant's criminal history score
be zero or one, yielding a CHC of I.
McKenzie pled guilty as charged, and the district court
accepted the guilty plea. The district court adopted the
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recommended guidelines offense level of nineteen set forth in the
Probation Office's pre-sentence report ("PSR"). To arrive at that
offense level, the court began with a base level of twenty-six for
the charged offense, U.S.S.G. § 2D1.1(c)(7)(2006); reduced the
offense level by three for acceptance of responsibility, id.
§ 3E1.1(a)-(b); and further reduced the offense level by four to
reflect McKenzie's minimal role in the charged offense, id.
§ 3B1.2(a).
The PSR also recommended a CHC of II due to McKenzie's
prior Maine state convictions: (1) an October 2005 conviction of
misdemeanor assault for slapping a bar employee in the face; and
(2) a June 2006 conviction of misdemeanor theft for shoplifting
sleeping pills and baby diapers from a supermarket. The proof
proffered for these two convictions was the Maine state court
electronic docket record, which was attested to by a Maine court
official as authentic.
An offense level of nineteen combined with a CHC of II
yielded an advisory guideline sentencing range ("GSR") of thirty-
three to forty-one months. The PSR recommended, however, that the
GSR be amended to sixty months, in accordance with the statutory
minimum for McKenzie's conviction under 21 U.S.C. § 841(b)(1)(B).
At sentencing, McKenzie objected to several aspects of
the PSR, including the calculation of her CHC and criminal history
score and her consequent lack of safety-valve eligibility.
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Specifically, McKenzie took issue with the use of electronic docket
records to prove her two prior Maine convictions. McKenzie also
focused particular attention on the shoplifting conviction and
argued that it should not have counted for criminal history
purposes. The Government maintained that a CHC of II was
appropriate, and that the shoplifting conviction had to factor into
McKenzie's criminal history score because in United States v.
Spaulding, 339 F.3d 20 (1st Cir. 2003), we held that the potential
for physical confrontation made it impossible to conclude that
shoplifting was "similar to" certain offenses excluded from CHC
calculations under U.S.S.G. § 4A1.2(c). Id. at 22.
The district court found the facts as set forth in the
PSR, ruled that the PSR properly calculated the two Maine
convictions, and accepted the computerized docket reports as
sufficient proof of the convictions. The court also held that it
was bound to count the shoplifting conviction in McKenzie's CHC
because of our holding in Spaulding. The court did, however, grant
the Government's motion under U.S.S.G. § 5K1.1 for substantial
assistance, which recommended that McKenzie receive a twelve-
percent downward departure from the sixty-month statutory minimum.
The court went much further and gave McKenzie a thirty-percent
downward departure, resulting in a forty-two month sentence. The
court's reasons for this departure centered on McKenzie's tragic
childhood and vulnerable psychological condition, threats made to
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her in jail over the prospect that she might testify against
others, and the fact that she was pregnant and had a small child.
On appeal, McKenzie challenges her sentence on two
grounds. First, she argues that the district court applied an
incorrect test to evaluate whether her prior Maine shoplifting
conviction should have been considered for purposes of calculating
her CHC. Second, she argues that the district court erred in
accepting computerized docket reports as adequate proof of her
prior Maine state convictions. As we now explain, neither
challenge has merit.
II. Discussion
We review questions of law involved in sentencing
determinations de novo. United States v. Jones, 523 F.3d 31, 41
(1st Cir. 2008); United States v. Pho, 433 F.3d 53, 60-61 (1st Cir.
2006), abrogated on other grounds by Kimbrough v. United States,
128 S. Ct. 558, 574-75 (2007).
A. Prior Maine Shoplifting Conviction
Where a defendant is convicted of an offense involving
five or more grams of crack cocaine, she must be given a mandatory
minimum sentence of five years, even if her GSR is lower. 21
U.S.C. § 841(b)(1)(B); see also United States v. Rodríguez, 938
F.2d 319, 320 (1st Cir. 1991). Even where the mandatory minimum
applies, however, a sentencing court can apply a lower sentence
under the safety-valve provisions of 18 U.S.C. § 3553(f) if the
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defendant meets five enumerated criteria. Only one of those
criteria is at issue here: whether the district court properly
found McKenzie's CHC to be II. If so, she is ineligible for
safety-valve relief. See 18 U.S.C. § 3553(f)(1).
Section 4A1.2(c) of the Sentencing Guidelines governs the
types of prior convictions that may be considered for purposes of
calculating a defendant's criminal history score. All felony
offenses are counted. Misdemeanors are counted as well, with an
important exception crucial to McKenzie's appeal: if the prior
conviction is for one of a listed number of misdemeanor offenses,
or an offense "similar to" a listed offense, it is not counted as
long as the sentence served was not a term of probation of at least
one year, or a term of imprisonment of at least thirty days. Id.
§ 4A1.2(c)(1).
At sentencing, the district court determined that the PSR
properly factored McKenzie's June 2006 shoplifting into her CHC
score. The court agreed with the Government's argument that
Spaulding controlled the issue. McKenzie now urges us to reverse
Spaulding and remand her case to the district court, substituting
for the "similar to" standard a "common sense" approach. As the
basis for her request, McKenzie points to amendments to the
Sentencing Guidelines promulgated by the United States Sentencing
Commission ("Commission"), made effective on November 1, 2007.
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Particularly, McKenzie relies on the addition of Application Note
12(A) to the Guidelines commentary, which in pertinent part reads:
In determining whether an unlisted offense is
similar to an offense listed in [§ 4A1.2]
(c)(1) . . . , the court should use a common
sense approach that includes consideration of
relevant factors such as (i) a comparison of
punishments imposed for the listed and
unlisted offenses; (ii) the perceived
seriousness of the offense as indicated by the
level of punishment; (iii) the elements of the
offense; (iv) the level of culpability
involved; and (v) the degree to which the
commission of the offense indicates a
likelihood of recurring criminal conduct.
Id. § 4A1.2 n.12(A).
We reject McKenzie's call to depart from Spaulding. Our
cases are clear that three-judge panels are bound by prior panel
decisions absent extraordinary circumstances. See United States v.
Duval, 496 F.3d 64, 85 (1st Cir. 2007) (citing United States v.
Allen, 469 F.3d 11, 17 (1st Cir. 2006)); United States v. Allen,
469 F.3d 11, 17 (1st Cir. 2006) ("[W]e remain bound to prior panel
decisions 'in the absence of supervening authority sufficient to
warrant disregard of established precedent.'" (quoting United
States v. Wogan, 938 F.2d 1446, 1449 (1st Cir. 1991))).
The relevant facts in Spaulding are markedly similar to
those in this case. There, we rejected the defendant's claim that
his prior conviction for shoplifting approximately $21 worth of
goods should be excluded from his criminal history score because it
was "similar to" an insufficient funds check conviction, an offense
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listed in § 4A1.2(c)(1), and therefore exempt from being counted in
a defendant's CHC. Spaulding, 339 F.3d at 22. Doing so, we
explained:
[S]hoplifting poses a markedly greater risk to
the public. Passing a bad check poses little
risk of physical confrontation, because the
perpetrator is not present when the victim
realizes that he has been victimized.
Shoplifting, on the other hand, creates the
very real risk of physical confrontation
between the perpetrator and the victim. A
store employee or customer may confront the
perpetrator in an attempt to thwart the crime.
The risk of confrontation precludes a
conclusion that shoplifting is "similar to"
passing a bad check.
Id.1
McKenzie does not attempt to persuade us that the
circumstances surrounding her case can be significantly
distinguished from those we addressed in Spaulding. Instead, she
asks us to remand her case for consideration of the criminal
history applicability of her prior shoplifting conviction under the
recently established "common sense" standard. McKenzie, however,
does not present us with any meaningful basis to comply with her
request. The amendments to the Guidelines on which McKenzie
1
With one exception, other circuits have agreed with this
reasoning. See United States v. Ubiera, 486 F.3d 71, 74-76 (2d
Cir. 2007) (citing, inter alia, Spaulding, 339 F.3d at 22); United
States v. Osborne, 514 F.3d 377, 391-92 (4th Cir. 2008); United
States v. Lamm, 392 F.3d 130, 132-34 (5th Cir. 2004); United States
v. Harris, 325 F.3d 865, 873 (7th Cir. 2003); United States v.
Gray, 126 F.3d 1109, 1110-11 (8th Cir. 1997); United States v.
Hooks, 65 F.3d 850, 854-56 (10th Cir. 1995); but see United States
v. López-Pastrana, 244 F.3d 1025, 1027-31 (9th Cir. 2001).
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anchors her claim were adopted after her sentencing in November
2007. We have no reason to believe that the Commission intended
the amendments to apply retroactively. See United States v.
Crudup, 375 F.3d 5, 8 (1st Cir. 2004); United States v. Havener,
905 F.2d 3, 5-7 (1st Cir. 1990). Moreover, McKenzie has provided
no basis for us to conclude that consideration of her prior
conviction under a "common sense" standard would yield a different
result.2 Pursuant to Spaulding, we conclude that the district
court properly included McKenzie's prior Maine shoplifting
conviction in its criminal history calculation and that she was
accordingly not entitled to a safety-valve downward adjustment.
B. Use of Computerized Docket Reports
At sentencing, the Government has the burden to
establish, by a preponderance of the evidence, the existence of a
prior conviction. See United States v. Díaz, 519 F.3d 56, 67 (1st
Cir. 2008). The Government may satisfy its burden by producing a
certified copy of the conviction or an equivalent proffer. United
States v. Unger, 915 F.2d 759, 761 (1st Cir. 1990); see also
Shepard v. United States, 544 U.S. 13, 26 (2005) (equivalent
proffer for criminal history purposes includes the charging
2
Notably, McKenzie did not proffer an analysis of her prior
shoplifting conviction through the rubric of Application Note 12(A)
in an effort to show that any result other than that expounded in
Spaulding would be reached.
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document, a written plea agreement, a transcript, or another
official court document).
McKenzie challenges the district court's reliance on
attested copies of computerized docket entries as proof of her
prior Maine state convictions for shoplifting and misdemeanor
assault. She urges us to develop a higher standard of proof that
would render these docket reports unacceptable as proof of
conviction.
We find no reason to disturb the district court's
judgment on this issue. Over McKenzie's objections at sentencing,
the district court correctly noted that electronic docket records
are increasingly the norm in today's world. Moreover, McKenzie
did not attempt to show that the records were inaccurate and
conceded that they were properly authenticated. We have not
previously addressed the admissibility of attested copies of
computerized docket entries for criminal history sentencing
purposes but other courts have concluded that electronic docket
records can sufficiently establish a defendant's criminal history
by a preponderance of the evidence. See, e.g., United States v.
Cousin, 219 F. App'x. 190, 194 (3d Cir. 2007) (unpublished); United
States v. Zuñiga-Chávez, 376 F. Supp. 2d 1163, 1166 (D.N.M. 2004)
("If docket sheets are sufficient, it follows that a certified copy
of an abstract judgment is also sufficient to establish the
existence of a prior conviction by a preponderance of the
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evidence."). We endorse these cases and hold that attested copies
of electronic docket entries may be a sufficient proffer of prior
conviction for sentencing proceedings before a district court. We
therefore conclude that the court below properly admitted the Maine
state conviction documents and reject McKenzie's appeal.
III. Conclusion
For the reasons stated above, we affirm the district
court's sentence.
Affirmed.
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