U.S.A v. Howard

• Decision Date: 19 March 2010
• Docket Number: No. 08-1748.,08-1748.
• Citation: 599 F.3d 269
• Parties: UNITED STATES of America v. Alphonse HOWARD, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

599 F.3d 269

UNITED STATES of America v. Alphonse HOWARD, Appellant.

No. 08-1748.

United States Court of Appeals

Third Circuit.

Decided: March 19, 2010.

Submitted Pursuant to Third Circuit LAR 34.1(a) Jan. 25, 2010.

Kenneth C. Edelin, Jr., Philadelphia PA, for Appellant.

Joel D. Goldstein, Michelle Morgan-Kelly, Robert A. Zauzmer, Office of United States Attorney, Philadelphia, PA, Paul Mansfield, Wynnewood, PA, for Appellee.

Before: FUENTES and FISHER Circuit Judges, and CONNER, ^* District Judge.

OPINION OF THE COURT

FISHER, Circuit Judge.

Alphonse Howard ("Howard") appeals the District Court's determination that he was a career offender under U.S.S.G § 4B1.1. He argues that the District Court erred in relying on uncertified documents in determining that his two previous drug convictions were felonies. We conclude that the District Court was correct in referring to uncertified documents to establish prior convictions for sentencing purposes. Accordingly, the District Court's judgment will be affirmed.

I.

On March 15, 2006, law enforcement officials executed a search warrant on 5511 Haverford Avenue in Philadelphia, Pennsylvania. This residence, which was located within 1, 000 feet of a school, was used by Howard to grow marijuana. Howard was arrested and subsequently pleaded guilty to: (1) manufacturing, and possession with intent to distribute, a mixture and substance containing a detectable amount of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D); and (2) manufacturing, and possession with intent to distribute, a mixture and substance containing a detectable amount of marijuana within 1, 000 feet of a school, in violation of 21 U.S.C. § 860(a).

On September 8, 2008, at Howard's sentencing hearing, he objected to the conclusion of the Pre-Sentence Report that he was a career offender. He also argued that the government had impermissibly introduced uncertified documents as proof of prior drug convictions. These prior convictions, if established as felonies, would classify Howard as a career offender under U.S.S.G. § 4B1.1 and would enhance his offense level from 13 to 32.

Howard had previously been convicted on two separate occasions in Philadelphia County for possession with intent to distribute a controlled substance. He was sentenced to nine months' probation for his March 7, 2000 conviction and one year of probation for his September 22, 2000 conviction. At the sentencing hearing in this case, the government offered certified copies of these convictions to establish that Howard was a career offender for sentencing purposes. The certified copy of the September 22, 2000 conviction, however did not indicate whether Howard had pleaded guilty to a misdemeanor for possession of a controlled substance or a felo-ny for conspiracy involving a controlled substance. The government subsequently conceded that the certified copy of conviction was ambiguous as to the exact offense to which Howard pleaded guilty, but argued that the Municipal Court of Philadelphia County Criminal Docket ("M.C. Docket") relating to Howard's September 22 2000 case reflected that he had pleaded guilty to a felony. The M.C. Docket was not a certified document. The District Court granted the government's request to continue the sentencing hearing in order for the government to determine whether the transcripts from the September 22, 2000 guilty plea were available.

On December 3, 2008, the District Court re-convened the sentencing hearing. The government stated that the transcripts from the September 22, 2000 guilty plea were unavailable. Notwithstanding that unavailability, the District Court relied on the incomplete certified record of conviction and the uncertified M.C. Docket entries to conclude that Howard's September 22, 2000 guilty plea had indeed been for a felony, and thus that the career offender enhancement under U.S.S.G. § 4B1.1 was appropriate. Howard was then sentenced to a prison term of 148 months. This timely appeal followed.

II.

The District Court had jurisdiction over this criminal matter pursuant to 18 U.S.C. § 3231. This Court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. The question of what documents a district court may rely on to determine the nature of a prior conviction and the scope of a district court's authority to make factual findings are questions of law, Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), which we review de novo, United States v. Coward, 296 F.3d 176, 179 (3d Cir.2002).

III.

Howard argues that the evidence presented by the government at sentencing was insufficient to establish that he was a career offender within the meaning of U.S.S.G. § 4B1.1.¹ Howard does not deny that he has two previous drug convictions. Instead he challenges the evidence the District Court relied on in making the determination that his September 22, 2000 conviction was a felony. Specifically, he argues that the Court improperly relied on the incomplete certified conviction and the uncertified M.C. Docket in determinating his career offender status. Howard argues on appeal that a court must rely only on certified documents as evidence of prior convictions. We disagree.

The Federal Rules of Evidence do not apply in sentencing proceedings. Fed.R.Evid. 1101(d)(3). Instead, evidence presented at sentencing must have a " 'sufficient indicia of reliability to support its probable accuracy.'" United States v Miele, 989 F.2d 659, 663 (3d Cir.1993) (quoting U.S.S.G. § 6A1.3(a)). Further, the fact of prior convictions is not an element of a crime and need not be found by a jury. See Almendarez-Torres v. United States, 523 U.S. 224, 244, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); United States v. Ordaz, 398 F.3d 236, 240-41 (3d Cir.2005). The government bears the burden of es-tablishing, by a preponderance of the evidence, prior convictions and career offender status. Mitchell v. United States, 526 U.S. 314, 330, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999); McMillan v. Pennsylvania, 477 U.S. 79, 91-92, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). This Court has never established a per se rule that certified copies of a conviction must be offered by the government before a judge may determine a defendant's career offender status within the meaning of U.S.S.G. § 4B1.1. See United States v. Watkins, 54 F.3d 163, 168 (3d Cir.1995).

In Watkins, the defendant argued "for a per se rule that certified copies of the judgments of conviction are required in every case before a sentencing court may determine that the defendant's prior convictions are for 'violent felonies'" under the Armed Career Criminal Act ("ACCA"). Id. We specifically declined to adopt an "inflexible" per se rule. Id. Instead, we held that the district court did not err in relying on a presentence report to "ascertain with certainty the statutes of conviction...." Id. See also United States v. Chavaria-Angel, 323 F.3d 1172, 1176 (9th Cir.2003) (declining to establish a per se rule requiring the use of certified records). We concluded in Watkins that the district court properly determined from the presentence report the defendant's criminal history for purposes of sentencing under the ACCA.

The Eleventh Circuit was faced with a similar question in United States v. Acosta 287 F.3d 1034 (11th Cir.2002). The defendant in Acosta argued that "because the record of his prior adjudication [was] sealed, the government did not meet its burden" of establishing his prior conviction for sentence enhancement purposes because the government could not produce a certified copy of his adjudication. Id. at 1038-39. The government, however, pre sented an identical, uncertified copy of the prior adjudication. The Eleventh Circuit did not require the government to offer a certified document. Rather, that court concluded that the uncertified copy of the defendant's prior adjudication was sufficient to satisfy the government's burden. Id. at 1039; see also United States v. Potter, 895 F.2d...