Monday, March 22, 2010

No per se rule that a prior conviciton under 4B1.1 must be established by a "certified" record

In United States v. Howard, No. 08-4748 (E.D.PA 03/19/10), the Court of Appeals affirmed the district court’s reference to “uncertified documents” in its determination that Mr. Howard was a career offender under U.S.S.G. § 4B1.1.

Howard entered a guilty plea to one count of possession with intent to distribute marijuana and one count of possession with intent to distribute marijuana within 1,000 feet of a school. At sentencing he objected to application of the career offender enhancement based on two prior drug convictions. As to one of the prior convictions, the district court relied on an incomplete certified conviction record and an uncertified Municipal Court document which indicated that Howard was convicted of felony drug conspiracy (no sentencing transcript was available). As a result, Howard’s base offense level of 13 (pursuant to § 2D1.1) was enhanced to 32 (pursuant to § 4B1.1). The district court sentenced Howard to 148 months and Howard appealed.

On appeal, Howard did not contest that he had two prior drug convictions, but rather argued that the district court impermissibly relied on uncertified documents in determining whether or not the career offender enhancement applied. The Court of Appeals disagreed. In doing so, the Court held that “evidence presented at sentencing must have a sufficient indicia of reliability to support its probable accuracy.” That the fact of a prior conviction is not an element of the crime and all the government needs to do at sentencing is present evidence that establishes the conviction by a preponderance of the evidence. The Court added that there is no “per se rule that certified copies of conviction must be offered by the government” to determine whether or not the career offender enhancement applies (a similar argument was rejected by the Court in United States v. Watkins, 54 F.3d 163, 168 (3d. Cir. 1995)).

The Court concluded that the district court’s reliance on the incomplete certified conviction record and the uncertified Municipal Court document to establish a prior drug conviction for career offender purposes was in keeping with the standard set forth in Shepard v. United States, 544 U.S. 13, 16 (2005)(a sentencing court may determine the existence of a prior conviction by relying on “the terms of the plea agreement, the charging document, the transcript of the colloquy ... or other comparable judicial record of sufficient reliability”)(emphasis added).

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