By Karon Fowler

In 2010, Drug Enforcement Agency (DEA) agents sent an undercover informant to buy fifteen bundles of heroin from a distributor associated with defendant Ernest James McDowell, Jr.  McDowell was eventually busted for dealing and the cops discovered a firearm while searching his apartment. In March 2011, McDowell pled guilty without a plea agreement to one count of possession of heroin with intent to distribute and one count of being a felon in possession of a firearm.

McDowell’s probation officer prepared a presentence report (PSR) with an increased recommended sentence on the ground McDowell as an “armed career criminal” pursuant to the Sentencing Guidelines and defined by the Armed Career Criminal Act (ACCA). Under the ACCA, a felony convicted of unlawfully possessing a firearm after committing three “violent felon[ies]” or “serious drug offense[s]” must be sentenced to a term of fifteen years to life imprisonment.

The probation officer concluded that three of McDowell’s prior convictions qualified as “violent felonies” under the ACCA. The first two convictions were evidenced by formal court judgments, but for the third conviction, the Government relied on a criminal record check obtained from the National Crime Information Center (NCIC) database. The database listed a 1971 conviction in the Bronx for second degree assault.

At McDowell’s sentencing hearing, he objected to the probation officer’s reliance on the NCIC report to establish the existence of the 1971 assault conviction. The Government conceded that a certified court record of the conviction was “no longer available,” but insisted that NCIC reports are sufficiently reliable to evidence McDowell’s commission of the crime.

McDowell’s first argument on appeal was that the NCIC report cannot establish the fact of the 1971 conviction. His specific concerns pertained to the reliability of the NCIC reports in general and his report in particular. However, the Circuit explained that every court of appeals to address a similar argument in a published opinion has rejected it and instead concluded that a district court may use the NCIC report to establish the fact of a prior conviction.

The Circuit stated that McDowell failed to provide any evidence to suggest that the NCIC database is inaccurate with significant frequency. McDowell was only able to provide “anecdotal evidence of a 99.5% accuracy rate,” which obviously failed to establish firm unreliability. In fact, it cuts against his argument and tends to prove the database significantly more reliable than not. Moreover, the NCIC reports are used extensively throughout the criminal justice system. Courts use the system to make bail and pretrial release decisions, while prosecutors rely on the reports at trial to impeach the witnesses.

Even if the reports are generally reliable, McDowell alternatively contends that the specific report at issue in his case is such a blatantly unreliable document that the district court clearly erred it allowing its use. The inaccuracies of his report include his incorrect name and birthday. He also points to the passage of 40 years since the alleged assault conviction, which he suggests increases the unreliability of the information. Nevertheless, the Government provided sufficient explanation of each supposed defect in the report.

The NCIC report includes any names and birthdays provided by the defendant upon arrest, including alias and falsely provided information. More specifically, the Government illustrated that McDowell had been convicted of other crimes in the Bronx under the alias “Michael” within the same time frame of the supposed assault conviction. The Government also stated that if the 1971 conviction were false as McDowell now alleges, he would have sought to challenge it during his 1983 federal crime conviction which would have included a criminal background check.

Although these explanations do not fully resolve the possible unreliability of the NCIC report, they sufficiently substantiated the report’s information for the district court to conclude by a preponderance of the evidence that McDowell committed the 1971 crime. The Circuit refused to hold that a contested NCIC report standing alone would always suffice to establish the fact of a prior conviction. The court, in limited fashion, only held that the district court did not clearly err in finding that McDowell’s NCIC report in conjunction with the corroborative evidence supplied by the Government, established the existence of the 1971 assault by a preponderance of the evidence.

McDowell also challenged the use of the NCIC report on constitutional grounds. He argued that the district court violated his Sixth Amendment right to a jury decision on each element of his offense beyond a reasonable doubt. Under the Sixth Amendment, it is usually required that any fact raising the statutory penalty for a crime “be submitted to a jury, and proved beyond a reasonable doubt.” However, there is an exception to the general rule whereby a jury need not find the “fact of a prior conviction” beyond a reasonable doubt. Instead, a judge may find the fact of a prior conviction by the lower preponderance of the evidence standard, even if it raises the statutory maximum or minimum penalty for the offense. This exception was articulated in the U.S. Supreme Court’s Almendarez-Torres decision. The Fourth Circuit explains that although some recent U.S. Supreme Court jurisprudence has cast doubt on the strength of the Almendarez-Torres exception, it remains good law that the Fourth Circuit will follow.

However, the Circuit acknowledged the distinctions between McDowell’s claim and the defendant’s claim in Almendarez-Torres. Unlike Almendarez-Torres, McDowell did not concede that his prior conviction in fact occurred. Moreover, there was no assurance that the alleged 1971 conviction arose pursuant to proceedings with substantial procedural safeguards of their own that would mitigate McDowell’s constitutional concerns. Thus, McDowell’s claim “untethers the exception from its justifications and lays bare the exception’s incompatibility with constitutional principles that are by now well settled.”

Nevertheless, the court explains that the law as it currently stands provides that the district court may find the fact of a prior conviction by a preponderance of the evidence. Under that standard, the district court did not clearly err in its conclusion that McDowell committed the 1971 crime for purposes of the PSR recommendation.

The NCIC database may be found at