United States v. Howard

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 08-4748

UNITED STATES OF AMERICA

v.

ALPHONSE HOWARD,

Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-07-cr-00021-1)

District Judge: Honorable Gene E. K. Pratter

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 25, 2010

Before: FUENTES and FISHER, Circuit Judges,

and CONNER,* District Judge.

*

Honorable Christopher C. Conner, United States District

Judge for the Middle District of Pennsylvania, sitting by

designation.

(Filed: March 19, 2010 )

Kenneth C. Edelin, Jr.

Two Penn Center Plaza, Suite 1410

Philadelphia, PA 19102

Counsel for Appellant

Joel D. Goldstein

Michelle Morgan-Kelly

Robert A. Zauzmer

Office of United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

Paul Mansfield

286 Barwynne Road

Wynnewood, PA 19096

Counsel for Appellee

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

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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

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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 felony 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.

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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 (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

1

U.S.S.G. § 4B1.1 provides that a defendant is a career

offender for sentencing purposes if

(1) the defendant was at least eighteen years old

at the time the defendant committed the instant

offense of conviction; (2) the instant offense of

conviction is a felony that is either a crime of

violence or a controlled substance offense; and (3)

the defendant has at least two prior felony

convictions of either a crime of violence or a

controlled substance offense.

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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 (1998);

United States v. Ordaz, 398 F.3d 236, 240-41 (3d Cir. 2005).

The government bears the burden of establishing, by a

preponderance of the evidence, prior convictions and career

offender status. Mitchell v. United States, 526 U.S. 314, 330

(1999); McMillan v. Pennsylvania, 477 U.S. 79, 91-92 (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

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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, presented 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

1231, 1238 (9th Cir. 1990) (declining to “foreclose the

possibility that a defendant’s conviction . . . might be established

by some other form of clearly reliable evidence”).

In satisfying its evidentiary burden to prove career

offender status, the government may rely on certified copies of

convictions. However, a court may also confirm a defendant’s

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previous convictions by relying on the terms of the plea

agreement, the charging document, the transcript of colloquy

between judge and defendant, or other comparable judicial

records of sufficient reliability. See Shepard v. United States,

544 U.S. 13, 16 (2005) (holding that inquiry under the ACCA to

determine statutory elements of prior conviction is limited to

judicial records and may not include documents that simply state

facts, such as police reports). Addressing this issue, other

circuits assess whether the documents submitted have “sufficient

indicia of reliability to support their probable accuracy such that

the documents can be used as evidence of [a defendant’s] prior

conviction.” United States v. Neri-Hernandez, 504 F.3d 587,

591 (5th Cir. 2007); accord United States v. Felix, 561 F.3d

1036, 1045 (9th Cir. 2009); United States v. Zuniga-Chavez, 464

F.3d 1199, 1204 (10th Cir. 2006).

In determining that Howard’s September 22, 2000

conviction was a felony, the District Court in this case relied on

an incomplete certified conviction record and M.C. Docket

entries, both of which are “records of the convicting court.”2

Shepard, 554 U.S. at 23. The M.C. Docket stated that Howard

was found guilty of “CSA-PWID-Conspiracy” and cites to

“35[Pa. C.S.A]§780-113§§A30,” which provides that possession

of marijuana with the intent to deliver is punishable in

Pennsylvania by a term of imprisonment not to exceed five

years. From this language the District Court concluded that

2

The M.C. Docket entry provided the District Court with

evidence of the specific statute under which Howard was

charged.

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Howard’s September 22, 2000 conviction qualified as a felony

for purposes of career offender status.

These docket entries are the type of judicial records that

are permissible for sentencing courts to use to establish past

convictions for sentencing purposes. The fact that the certified

conviction was incomplete and ambiguous as to the level of

Howard’s offense did not prohibit the District Court from

looking to other reliable judicial records to establish the type of

crime for which he was convicted.3

IV.

For the foregoing reasons, we will affirm the District

Court’s judgment.

3

We do note, however, that the government’s ability to

rely on various documents from the judicial record to establish

past criminal convictions does not lighten its burden of proving

the prior conviction by a preponderance of the evidence.

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