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United States v. Howard

March 19, 2010

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.

The opinion of the court was delivered by: Fisher, Circuit Judge

PRECEDENTIAL

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

Before: FUENTES and FISHER, Circuit Judges, and CONNER,*fn1 District Judge.

OPINION OF THE COURT

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 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.

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 ...


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