UNITED STATES V. MCDOWELL, NO. 13-4370
Decided: March 11, 2014
The Fourth Circuit Court of Appeals affirmed the defendant’s 196-month sentence imposed pursuant to the Armed Career Criminal Act. The Fourth Circuit held that the district court did not err by relying an uncertified criminal record check as proof that the defendant committed a violent felony in New York more than forty years ago.
In August 2010, DEA agents authorized a confidential informant to buy heroin from the defendant, Ernest James McDowell, Jr. (“McDowell”). In March 2011, McDowell pled guilty without a plea agreement to one count of possession of heroin with intent to distribute and one count of being a felon in possession of a firearm. Prior to the sentencing hearing, McDowell’s probation officer prepared a pre-sentence report (“PSR”) with an increased recommended sentence, on the ground that he was an “armed career criminal” as defined by the Armed Career Criminal Act (“ACCA”). The officer concluded that three of McDowell’s prior convictions met the ACCA’s definition of a “violent felony.” The Government located formal court judgments evidencing two of the tree convictions, but was unable to produce a formal judgment documenting the third—a 1971 conviction in the Bronx for second-degree assault. Instead, the Government relied on a criminal record check obtained from the National Crime Information Center (“NCIC”) database, which listed the 1971 assault among the crimes for which McDowell had been convicted. NCIC typically links suspects’ criminal histories to their fingerprints. The one at issue here listed four different names for McDowell, as well as two social security numbers and four different birthdays that were all inaccurate. The report correctly detailed McDowell’s birthplace, height, weight, and hair color. It indicated that McDowell pled guilty under the name “Michael Mc Dowell” to second-degree assault in the Bronx in 1971, a conviction for which he received a sentence of four years.
On appeal, McDowell contended that the NCIC report could not establish, even by a preponderance of the evidence, the fact of the 1971 conviction. However, every court of appeals has concluded that a district court may use an NCIC report to help establish the fact of a prior conviction. Although the NCIC database is fallible, there is no evidence to suggest that it is categorically unreliable. In fact, McDowell’s counsel pointed to Urbina-Mejia, which recounted a probation officer’s remark that one out of two hundred NCIC reports he had encountered in his career was inaccurate. This 99.5% accuracy rate actually suggests that the NCIC database is generally (albeit not always) accurate. Moreover, the pervasive use of NCIC reports throughout the criminal justice system further indicates that such reports may be trusted.
The Fourth Circuit rejected McDowell’s argument that this specific report was still unreliable, based on its inaccurate statement of his name and birthday and the passage of forty years. Although the issues did cast some doubt on the report’s accuracy, the Government provided unrebutted explanations regarding each of the report’s alleged defects. The PSR noted that McDowell occasionally used the alias “Michael” and that the report includes any names and birthdays provided by the defendant upon arrest—including false ones. In addition, the probation officer spoke with an FBI agent who confirmed that the NCIC report linked McDowell to the 1971 assault through fingerprint analysis. Further, the Government pointed out that McDowell had been convicted of other crimes in the Bronx under the alias “Michael” shortly before 1971, rendering the subsequent conviction more likely. And finally, the Government noted that McDowell was convicted of a federal crime in 1983—a conviction that would have resulted in a criminal background check revealing the 1971 conviction—and that if he had a legitimate basis for challenging the 1971 conviction, would have done so then. The Fourth Circuit held that the district court did not clearly err in finding that this report, in addition to the corroboration provided by the Government, established the facts of the 1971 conviction by a preponderance of the evidence.
Then, McDowell contended that in applying the preponderance-of-the-evidence standard to establish the fact of his prior conviction, the district court violated his Sixth Amendment right to have the jury find each element of his offense beyond a reasonable doubt. However, the Supreme Court has recognized an exception to the general Sixth Amendment rule: a jury need not find the “fact of a prior conviction” beyond a reasonable doubt. Instead, the Court has held that the Sixth Amendment permits a judge to find the fact of a prior conviction by a mere preponderance of the evidence, even if this fact raises the statutory maximum or minimum penalty for the current offense.
– Sarah Bishop