United States v. Ernest McDowell, Jr.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4860

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

ERNEST JAMES MCDOWELL, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
Chief District Judge. (5:10-cr-00296-FL-1)

Argued: October 25, 2012 Decided: November 28, 2012

Before KING and FLOYD, Circuit Judges, and R. Bryan HARWELL,
United States District Judge for the District of South Carolina,
sitting by designation.

Vacated and remanded by unpublished per curiam opinion.

ARGUED: Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Yvonne
Victoria Watford-McKinney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P.
McNamara, Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Ernest James McDowell, Jr. pled guilty to possession with

intent to distribute heroin and being a felon in possession of a

firearm. On August 8, 2011, the district court sentenced him to

213 months of imprisonment and five years of supervised release.

On appeal, McDowell alleges the district court erred by

sentencing him as an armed career criminal. For the reasons that

follow, we vacate McDowell’s sentence and remand to the district

court for resentencing.

On August 6, 2010, federal agents stopped McDowell as he

was driving and found eighteen bundles of heroin in his

possession, while searches in other locations uncovered

additional heroin and a .44 caliber revolver.

A grand jury indicted McDowell for possession with intent

to distribute a quantity of heroin, in violation of 21 U.S.C.

§ 841(a)(1) (2006), and possession of a firearm by a felon, in

violation of 18 U.S.C. § 922(g)(1) (2006). McDowell pled guilty

to both counts. In the presentence investigation report

(“PSR”), the probation officer recommended that the district

court sentence McDowell as an armed career criminal based upon

his prior convictions.

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The district court held McDowell’s sentencing hearing on

August 8, 2011. The PSR listed, among other convictions, a 1971

second-degree assault conviction from the Bronx County Supreme

Court in New York. According to the Government, the PSR relied

on a criminal record check to show the previous conviction. 1

McDowell objected to the use of this conviction to classify him

as an armed career criminal because a criminal record check is

insufficient to prove the prior conviction, and because the

criminal record check showed a conviction in the name “Michael

McDonald” rather than the name “Ernest James McDowell.”

Relying primarily upon information gleaned from the

criminal record check, the district court overruled McDowell’s

objection and sentenced him as an armed career criminal.

II.

Under the Armed Career Criminal Act (“ACCA”), a defendant

is an armed career criminal if he has at least three prior

convictions for violent felonies or serious drug offenses

“committed on occasions different from one another.” 18 U.S.C. §

1
In its brief, the Government references a criminal record
check from New York, commonly referred to as a “rap sheet.”
However, during oral argument, the Government explained that
although the original New York records from the 1971 conviction
were no longer available, the PSR relied on a report produced by
the National Crime Information Center (“NCIC”) to show the
previous conviction.

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924(e)(1) (2006); U.S.S.G. § 4B1.4(a) (2011). The Government

bears the burden of proving an ACCA predicate conviction by a

preponderance of the evidence. United States v. Harcum, 587

F.3d 219, 222 (4th Cir. 2009). The parties do not dispute that

the underlying convictions at issue, the 1971 conviction for

second-degree assault, the 1986 conviction for common law

robbery, and the 1986 conviction for robbery with a dangerous

weapon, constitute predicate convictions under ACCA. See 18

U.S.C § 924(e)(2). The parties dispute whether the Government

sufficiently proved that McDowell was convicted in 1971 for

second-degree assault. We review the district court's factual

findings for clear error and its classification of McDowell as

an armed career criminal de novo. United States v. Farrior, 535

F.3d 210, 223 (4th Cir. 2008).

McDowell first argues that the district court erred in

considering the criminal record check because it was not among

the “limited list” of documents referenced in Shepard v. United

States, 544 U.S. 13 (2005). However, McDowell misstates

Shepard’s holding. In Shepard, the Supreme Court held that a

sentencing court may not look beyond the charging document or

certain other limited documents to determine whether a prior

offense qualifies as a predicate conviction under ACCA. Shepard,

544 U.S. at 26. Shepard “did not address what documents can be

used to prove the fact of a prior conviction, but was concerned

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only with what documents can be used to prove the facts

underlying a conviction where the elements of the state crime do

not precisely mirror the federal definition.” United States v.

Zuniga-Chavez, 464 F.3d 1199, 1203 (10th Cir. 2006) (emphasis in

original); see also United States v. Carter, 591 F.3d 656, 661

(D.C. Cir. 2010); United States v. Sanders, 470 F.3d 616, 623-24

(6th Cir. 2006). The issue in this case is whether McDowell had

a 1971 second-degree assault conviction, not whether the second-

degree assault conviction amounts to a “violent felony” under

ACCA. Shepard does not apply.

McDowell next argues that the district court erred in

finding that McDowell was convicted in 1971 for second-degree

assault because its finding rested on unreliable information,

notably the criminal record check. Pursuant to the Guidelines,

“[i]n resolving any dispute concerning a factor important to the

sentencing determination, the court may consider relevant

information . . . provided that the information has sufficient

indicia of reliability to support its probable accuracy.”

U.S.S.G. § 6A1.3(a) (2011); see also United States v. Scott, 343

Fed. App’x 930, 930-31 (4th Cir. 2009).

Here, the criminal record check was never made part of the

record before the district court or part of the record on

appeal. Indeed, the Government conceded at oral argument that

there was no “evidence” in the record that McDowell was

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convicted for second-degree assault in 1971, only argument

before the district court. Therefore, the district court erred

in determining the fact of McDowell’s 1971 conviction, and thus

in classifying McDowell as an armed career criminal and so

sentencing him under ACCA.

III.

For the foregoing reasons, we vacate McDowell’s sentence

and remand to the district court for resentencing. 2

VACATED AND REMANDED

2
In an unpublished case, we have recognized that several
other courts have approved the use of NCIC reports to establish
prior convictions. See United States v. Scott, No. 08-4888, 2009
WL 2758074, at *1 (4th Cir. Sept. 2, 2009). Here, however,
neither the criminal record check nor the original judgment of
conviction was made part of the record. Thus, we do not address
McDowell’s argument that criminal record checks, such as the
NCIC report apparently used in this case, are unreliable for
purposes of proving the fact of an ACCA predicate conviction.