NOT RECOMMENDED FOR PUBLICATION
File Name: 11a0826n.06
FILED
No. 09-3688
Dec 12, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
v. ) THE SOUTHERN DISTRICT OF
) OHIO
ERIC K. WATKINS, )
)
Defendant-Appellant. ) OPINION
)
Before: GILMAN, ROGERS, and STRANCH, Circuit Judges.
RONALD LEE GILMAN, Circuit Judge. Eric K. Watkins was convicted of four offenses,
including conspiracy and armed robbery, for abducting a female employee of a credit union and
forcing her at gunpoint to assist him and his brother in stealing the contents of the credit union’s
vault. Watkins now seeks to overturn his conviction, arguing that the district court erred in admitting
expert testimony on fingerprint identification. In the alternative, Watkins argues that his sentence
is procedurally unreasonable. For the reasons set forth below, we AFFIRM Watkins’s conviction,
but conclude that the district court committed plain error in sentencing him. We therefore VACATE
Watkins’s sentence and REMAND for resentencing.
No. 09-3688
United States v. Watkins
I. BACKGROUND
A. Factual background
On July 26, 2004, two men wearing masks invaded Linda Battaglia’s home in Groveport,
Ohio, abducted her and her two daughters at gunpoint, and threatened to kill Battaglia unless she
promised to take them to the vault at Western Credit Union, where she worked. The next morning,
the same two masked men forced Battaglia and her daughters to ride with them to the credit union,
where they waited for Battaglia’s supervisor to arrive. The supervisor was the only one who had the
combination to the cash vault. As they waited, the masked men tied up those employees who entered
the credit union before the supervisor. When the supervisor finally arrived, the men threatened to
kill everyone there if she did not open the vault. The supervisor ceded to their demand, and the
masked men left the credit union with an estimated $643,000.
Gary Watkins was later identified as one of the masked men. He was the purported
mastermind behind this robbery and a string of similar bank robberies in the region surrounding
Columbus, Ohio. His brother, Eric, the appellant in this case, was accused of assisting Gary in only
the Western Credit Union robbery. Eric was tied to this robbery by a latent fingerprint found on
Battaglia’s car that purportedly matched his own.
Before trial, Eric Watkins filed a motion in limine requesting a Daubert hearing to determine
if the fingerprint-identification testimony met the requirements of Rule 702 of the Federal Rules of
Evidence. At the Daubert hearing, one of the government fingerprint examiners testified about the
technique used to identify the latent fingerprint found on Battaglia’s car as that of Eric Watkins.
That technique is called the ACE-V method, an acronym for analysis, comparison, evaluation, and
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United States v. Watkins
verification. In particular, the examiner testified that where the ACE-V method “is used properly
by a competent examiner,” the error rate for identification is zero.
The district court determined that the ACE-V method met the Daubert test for scientific
validity and permitted the government fingerprint examiners to testify at trial. A jury subsequently
convicted Watkins of committing a conspiracy (Count 8, under 18 U.S.C. § 371), committing armed
robbery of a financial institution (Count 13, under 18 U.S.C. § 2113(a) and (d)), using and carrying
a firearm during and in relation to a crime of violence (Count 14, under 18 U.S.C. § 924(c)(I)(A)(ii)),
and receiving, possessing, concealing, storing, or disposing of money stolen from a credit union
(Count 15, under 18 U.S.C. § 2113(c)).
B. Watkins’s sentencing
Watkins’s sentencing proceedings were held in October 2005. In the Presentence Report,
Watkins was classified as a career offender because he was found to have two prior felony
convictions for crimes of violence. As a career offender, Watkins’s Guidelines range of
imprisonment was from 360 months to life. The probation officer recommended a total term of
imprisonment of 360 months: 60 months on Count 8, 276 months on Count 13, and 120 months on
Count 15, to be served concurrently with each other, but consecutively to 84 months of
imprisonment on Count 14.
Watkins urged the district court not to classify him as a career offender because of the
remoteness of his previous convictions. The court rejected Watkins’s request. It then asked for any
remarks that “[Watkins] wish[ed] to make by way of allocution.” In addition to rearguing the
reasons that his criminal-offender status was inappropriate, Watkins contended that the 360 months
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No. 09-3688
United States v. Watkins
of imprisonment recommended by the probation officer was disproportionate and excessive. He
pointed out that Frankie Lee Jones, who was convicted for other robberies that Jones had committed
with Watkins’s brother Gary, had received only 80 months’ imprisonment. Despite the fact that
Jones, unlike Watkins, had assisted the government, Jones was also convicted of more than one
robbery. Watkins argued that his lack of cooperation did not justify sentencing him to a term of
imprisonment four times longer than Jones’s. The government countered that Watkins’s criminal
history justified the lengthy prison sentence.
Immediately following the government’s argument, the district court announced Watkins’s
sentence:
I will now state the sentence I intend to impose but counsel will have a final
opportunity to make any legal objections before the sentence actually is imposed:
Pursuant to the Sentencing Reform Act of 1984, the advisory guidelines and 18
U.S.C. 3553(a), it is the judgment of the Court that the defendant, Eric Watkins, shall
be committed to the custody of the United States Bureau of Prisons to be imprisoned
for a term of 60 months on Count 8, 360 months on Count 13, 120 months on Count
15, to be served concurrently with each other, and 84 months on Count 14, which
shall be served consecutively to Counts 8, 13, and 15.
Following its recitation of the terms of Watkins’s sentence, the district court solicited any objections.
None were forthcoming, and the sentence was imposed.
The sentence for Count 13 as orally pronounced by the district court, however, violates 18
U.S.C. § 2113(d), which sets the statutory maximum for Count 13 at 25 years, or 300 months. Nor
does the oral sentence match the sentence stated in either the minute order from the hearing or the
court’s written judgment entered on November 3, 2005, both of which list the term of imprisonment
for Count 13 as 276 months—the length recommended by the probation officer.
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United States v. Watkins
Before the sentencing hearing concluded, Watkins requested that the district court direct the
clerk’s office to file a notice of appeal on his behalf. This request, however, was never carried out.
Watkins filed a pro se motion to reinstate his right to appeal on January 12, 2006. The district court
entered an order directing the clerk’s office to file a notice of appeal nunc pro tunc to the date that
his sentence was imposed. Ruling that “the district court was without authority to enter the nunc pro
tunc order,” this court dismissed Watkins’s appeal for lack of jurisdiction on October 15, 2007.
Watkins then filed a pro se petition with the district court to vacate his sentence under 28
U.S.C. § 2255. The government supported his petition because it had determined that the clerk was
clearly at fault for the untimeliness of the notice of appeal. But neither of the parties noted or
addressed the discrepancy between the oral pronouncement of the term of imprisonment and the
written sentencing judgment.
To remedy the clerk’s failure to file a notice of appeal, the district court vacated the
sentencing judgment and, on June 10, 2009, reentered a judgment identical to its written November
3, 2005 judgment, sentencing Watkins to a term of imprisonment of 276 months on Count 13 and
a total term of imprisonment of 360 months. This timely appeal followed.
II. ANALYSIS
A. Sentencing discrepancy
First, we must address the discrepancy created in 2005 between the orally pronounced
sentence and the written sentencing judgment. An unambiguous, orally imposed sentence is
controlling where it contradicts the written sentencing judgment. United States v. Penson, 526 F.3d
331, 334-35 (6th Cir. 2008). At the time Watkins was sentenced, Rule 35(a) of the Federal Rules
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United States v. Watkins
of Criminal Procedure allowed the correction of “a sentence that resulted from arithmetical,
technical, or other clear error” within seven days after oral announcement of the sentence. See Fed.
R. Crim. P. 35(a) (2005).
There can be no reasonable doubt that the district court’s October 21, 2005 oral
pronouncement of a sentence above the maximum set by 18 U.S.C. § 2113(d) for Count 13
constituted a “technical or other clear error” under Rule 35(a). November 1, 2005 was the deadline
to correct it, calculating the seven-day period as required by Rule 45(a) of the Rules of Criminal
Procedure in 2005. But the district court did not issue its written judgment until November 3,
2005—two days too late. Watkins, however, does not raise this issue on appeal and, because we are
vacating and remanding for resentencing on another ground, we need not decide whether Watkins’s
resentencing in June 2009 or his failure to object in 2005 would preclude a claim for relief on this
ground.
B. The district court did not abuse its discretion by allowing the fingerprint examiners to
testify
Turning now to the issues raised on appeal, Watkins challenges his conviction on only one
ground. He argues that his conviction should be overturned because the district court abused its
discretion by permitting the government’s fingerprint examiners to testify as experts at his trial. We
respectfully disagree.
Before an expert may testify at trial, the district “court must make ‘a preliminary assessment
of whether the reasoning or methodology underlying the testimony is scientifically valid and of
whether that reasoning or methodology properly can be applied to the facts in issue.’” United States
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United States v. Watkins
v. Smithers, 212 F.3d 306, 313 (6th Cir. 2000) (quoting Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579, 592-93 (1993)). At the Daubert hearing in this case, one of the government fingerprint
examiners testified about the scientific validity of the ACE-V method. She asserted that where the
ACE-V method for identifying latent fingerprints “is used properly by a competent examiner,” the
error rate for identification is zero.
Watkins contends that this assertion is false. To support his argument, Watkins cites a 2009
National Research Council report concluding that the claim of fingerprint examiners that “the
[ACE-V] method itself, if followed correctly . . . , has a zero error rate . . . is unrealistic . . . . The
method, and the performance of those who use it, are inextricably linked, and both involve multiple
sources of error (e.g., errors in executing the process steps, as well as errors in human judgment).”
See Committee on Identifying the Needs of the Forensic Science Community, National Research
Council, Strengthening Forensic Science in the United States: A Path Forward 143 (2009).
There are two problems with Watkins’s argument. The first is that we may not consider
evidence that was not before the district court. See Fed. R. App. P. 10(a); United States v. Bonds,
12 F.3d 540, 552 (6th Cir. 1993) (declining to consider a report that criticized the DNA-matching
methodology used by the government’s expert in the case because the report was issued a year after
Bonds’s convictions and was not available to the district court at the time of its decision to admit the
testimony). When the district court determined that the ACE-V method met the standards of expert
testimony set out by Daubert, the court had before it the testimony of only the fingerprint examiner.
The National Research Council’s 2009 report was not available to the court at the time of the
Daubert hearing in April 2005.
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United States v. Watkins
Watkins’s other problem is that, assuming arguendo that the ACE-V method is not error-free,
the fact that the fingerprint examiner testified that it was 100% accurate does not by itself mean that
the district court erred in determining that the ACE-V method was scientifically valid. The error rate
is only one of several factors that a court should take into account when determining the scientific
validity of a methodology. See United States v. Langan, 263 F.3d 613, 621 (6th Cir. 2001) (holding
that several factors should be considered in reviewing an expert’s methodology regarding the
reliability of eyewitness testimony). These factors include “testing, peer review, publication, error
rates, the existence and maintenance of standards controlling the technique’s operation, and general
acceptance in the relevant scientific community.” Id. At the Daubert hearing in this case, the
fingerprint examiner testified about custody-control standards, generally accepted standards for latent
fingerprint identification, peer review journals on fingerprint identification, and the system of
proficiency testing within her lab. Watkins does not challenge the examiner’s testimony on any of
these other Daubert factors, and we decline to hold that her allegedly mistaken error-rate testimony
negates the scientific validity of the ACE-V method given all the other factors that the district court
was required to consider.
In sum, the 2009 critique of the ACE-V method was not available to the district court at the
time of the Daubert hearing, and even a less-than-perfect fingerprint-identification method can still
be scientifically valid. We therefore have no basis to conclude that the district court abused its
discretion by admitting the testimony.
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United States v. Watkins
C. Watkins’s sentence was procedurally unreasonable
1. Standard of review
We next turn to Watkins’s contention that his sentence was procedurally unreasonable.
Procedural reasonableness is normally reviewed under an abuse-of-discretion standard. United
States v. Wallace, 597 F.3d 794, 802 (6th Cir. 2010). Watkins, however, failed to object to any
procedural defects when the district court asked for objections following its pronouncement of the
sentence at the October 21, 2005 hearing. That failure, according to the government, requires that
the procedural reasonableness of Watkins’s sentence be reviewed under the more deferential plain-
error standard. See id. (holding that “[w]here a party has failed to object to a procedural defect, we
review claims of procedural unreasonableness for plain error”).
We assume without deciding that the plain-error standard of review applies here because it
does not affect the outcome of our decision. A sentence will be vacated under plain-error review
only if the district court committed an “obvious or clear” error “that affected [the] defendant’s
substantial rights and . . . the fairness, integrity, or public reputation of the judicial proceedings.”
United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc) (internal quotation marks
omitted).
2. The district court’s failure to explain Watkins’s sentence constituted
plain error
Watkins argues that the district court’s sentencing was procedurally unreasonable even under
the highly deferential plain-error standard of review because the court offered absolutely no
reasoning for the sentence imposed. We agree.
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United States v. Watkins
The district court has a statutory obligation to “‘adequately explain the chosen sentence
to allow for meaningful appellate review.’” Wallace, 597 F.3d at 804 (quoting Gall v. United States,
552 U.S. 38, 50 (2007)); see also 18 U.S.C. § 3553(c) (“The [sentencing] court . . . shall state in
open court the reasons for its imposition of the particular sentence . . . .”). Here, the district court
not only failed to provide adequate reasoning, it failed to provide any reasoning. Immediately after
the parties had concluded their arguments at the sentence hearing, the court announced Watkins’s
sentence. The court never addressed Watkins’s contention that his sentence was disproportionate
to the one imposed on Frankie Lee Jones, who committed more than one robbery with Watkins’s
brother but was sentenced to only 80 months in prison. This alone is enough to conclude that the
sentencing was procedurally unreasonable under plain-error review. See Wallace, 597 F.3d at
802-08 (vacating a sentence under plain-error review for failure to address the defendant’s disparity
argument).
The government claims that, pursuant to this court’s decision in Vonner, another plain-error-
review case, the district court did not need to address Watkins’s disparity argument because the
argument was “conceptually straightforward.” 516 F.3d at 388. But the government misinterprets
Vonner.
Vonner “argue[d on appeal] that the district court failed to explain in sufficient detail why
it rejected some of his arguments for a downward variance.” Id. at 385 (emphasis added). The key
distinction between Vonner and this case is that the district court in Vonner offered at least some
explanation of the chosen sentence, where here there was none. See id. at 384. This court noted that
“[n]o one would call [the district court’s] explanation [of Vonner’s sentence] ideal,” but nonetheless
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United States v. Watkins
held that, as long as the record plainly demonstrated that the district court listened to, understood,
and considered each argument that the defendant raised, this court could not conclude that the district
court’s “brief explanation” constituted a clear error. See id. at 386-88. Here, the record does not
demonstrate that the district court listened to, understood, or considered Watkins’s disparity
argument because it provided no explanation whatsoever.
This case, in fact, is much more analogous to Wallace than Vonner. In Wallace, “[the
defendant] challenge[d] the procedural reasonableness of her sentence based on the district court’s
failure to consider her argument that she received” a sentence twice as long as the sentence of “[her
co-defendant], even though he played a much larger part in the conspiracy.” 597 F.3d at 802. Just
like the district court in this case, the district court in Wallace “was completely non-responsive to
th[e disparity] argument.” Id. at 803.
Reviewing the procedural reasonableness of Wallace’s sentence under the plain-error
standard, this court held that the district court committed a clear error by neglecting to respond to
defendant’s “assuredly non-frivolous” disparity argument. See id. at 806. In addition, even though
Wallace’s sentence was within the Guidelines range, such an error affected her substantial right to
meaningful appellate review as well as “the fairness, integrity, or public reputation of judicial
proceedings.” See id. at 806-08 (internal quotation marks omitted); see also United States v. Blackie,
548 F.3d 395, 400-03 (6th Cir. 2008) (vacating a sentence in excess of the Guidelines range because
the district court failed to state any reason for imposing the lengthier sentence). The district court’s
“failure to even acknowledge [Wallace]’s argument,” this court reasoned, “mandate[d] remand.”
Wallace, 597 F.3d at 805. Because the circumstances in this case are virtually identical to those in
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United States v. Watkins
Wallace, we too conclude that the district court’s sentencing fails to withstand plain-error review.
We recognize, of course, that the sentencing proceedings in this case occurred soon after United
States v. Booker, 543 U.S. 220 (2005), and well before the precedents we rely upon here were
handed down.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM Watkins’s conviction, but conclude that
the district court committed plain error in sentencing Watkins. We therefore VACATE Watkins’s
sentence and REMAND for resentencing.
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