NCIC report & other government corroboration establish the fact of an old conviction by a preponderance of the evidence, yet Sixth Amendment claim carries some force

US v. McDowell:  Ernest McDowell pleaded guilty to possession with intent to distribute heroin and being a felon in possession of a firearm.  At sentencing, the probation officer recommended McDowell be sentenced as an armed career criminal, based upon three prior convictions that allegedly met the definition of “violent felony,” except that one of these convictions, a 1971 NY conviction for second degree assault, lacked a formal judgment documenting it.  The government, in order to establish the existence of this conviction, relied on an NCIC report for its proof but failed to incorporate it into the record.  The district court sentenced McDowell as an armed career criminal, and he appealed.

In the first appeal, the Fourth Circuit found error by the district court by basing its sentence on the NCIC without making the report part of the record.  On remand, McDowell renewed his argument that the NCIC was “inherently unreliable” as a means of proving the existence of this conviction (which he never conceded) for ACCA purposes.  The district court entered the NCIC into the record, in addition to some other corroborative information the government located, i.e., NY Dept. of Corrections info and fingerprint analysis results that indicated the 1971 conviction was McDowell’s.  The district court sentenced McDowell again as an armed career criminal, but imposed a shorter sentence than the first one imposed, on account of McDowell’s “good behavior in the interim.”

On this appeal, McDowell raises a procedural and constitutional challenge to his sentence, arguing that the NCIC report cannot establish the fact of the 1971 conviction by a preponderance of the evidence, and that his Sixth Amendment rights have been violated because he has a right to have a jury find each element of his offense beyond a reasonable doubt.  The constitutional question provided McDowell more traction, as the Fourth Circuit panel finds the Supreme Court’s Sixth Amendment exception at play here (normally, “any facts that increase the prescribed range of penalties to which a criminal defendant is exposed are elements of the crime” that a jury must find beyond a reasonable doubt,” Shepard v. United States) “incompatible with constitutional principles that are by now well settled.” Yet, the panel affirmed McDowell’s sentence based on the current state of the law.