United States v. Thompson , 274 F. App'x 453 ( 2008 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0206n.06
Filed: April 18, 2008
No. 07-5251
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES, )
)
Plaintiff-Appellee, ) On Appeal from the
) United States District
v. ) Court for the Middle
) District of Tennessee
ANTON LAMONT THOMPSON, )
)
Defendant -Appellant. )
Before: BOGGS, Chief Judge; ROGERS, Circuit Judge; and SHADUR,
Senior District Judge.*
SHADUR, Senior District Judge: Anton Lamont Thompson
(“Thompson”) appeals the district court’s finding, made at his
sentencing hearing, that the United States had established by a
preponderance of the evidence that he was previously convicted of
two state crimes. Because the district court did not commit
clear error in making that finding, we affirm Thompson’s
sentence.
I. Factual Background
On December 8, 2006 Thompson pleaded guilty to one count of
attempted bank robbery and one count of armed bank robbery. When
*
The Honorable Milton I. Shadur, United States District Judge for
the Northern District of Illinois, sitting by designation.
the United States Probation Office prepared a Presentence
Investigation Report, it calculated the sentencing range under
the advisory Sentencing Guidelines (“Guidelines”) as 92 to 115
months.
As always, that calculation was predicated in part on
Thompson’s criminal history. It treated him as having amassed 10
criminal history points, thus putting him into Criminal History
Category V. One of those 10 points was based on two prior North
Carolina misdemeanor convictions--one for carrying a concealed
weapon and one for breaking and entering--both stemming from a
single incident that occurred on December 20, 1996.
In a written presentence memorandum Thompson objected to
that calculation because, he maintained, the United States had
failed to present sufficient proof of the two misdemeanor
convictions. Without those convictions, Thompson explained, he
would have 9 rather than 10 criminal history points, placing him
in Criminal History Category IV and reducing the Guidelines range
to 77 to 96 months.
At Thompson’s February 22, 2007 sentencing hearing the
United States was unable to produce a copy of the judgment
reflecting the two North Carolina convictions. For his part
Thompson’s attorney explained that his own investigation into the
matter came up empty, telling the district court that “there was
no judgment” confirming the prior convictions.
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In lieu of a judgment covering those convictions, the United
States submitted three other supporting documents:
1. a two-page computer printout, certified by the
Deputy Clerk of the Superior Court of Mecklenburg County,
North Carolina, showing that Thompson had pleaded guilty to
the two misdemeanor charges and had been sentenced to 12
months’ probation for the breaking and entering offense;
2. an uncertified copy of a grand jury indictment
charging Thompson with carrying a concealed weapon; and
3. an uncertified copy of a plea transcript (a
standardized form used to document the plea agreement
between Thompson and the district attorney) signed by
Thompson, the district attorney and the presiding state
court judge.
At his sentencing hearing Thompson again argued that those
documents did not suffice to support a finding that he had twice
been convicted in North Carolina. But the district court
disagreed, finding that the “certified copy of an electronic
record that reflects the conviction,” as well as the uncertified
copy of the plea transcript, “together are reliable evidence that
there was a conviction.” Thompson was then given concurrent
sentences of 92 months’ imprisonment and three years’ supervised
release on the two federal counts. After sentencing he filed a
timely notice of appeal.
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II. Standard of Review
We review a district court’s factual findings at sentencing
for clear error (United States v. Katzopoulos, 437 F.3d 569, 574
(6th Cir. 2006)). Such findings are “clearly erroneous only
when, despite some evidence to support the finding, we are left
with the definite and firm conviction that a mistake has been
committed, based on a review of the record as a whole” (United
States v. Raleigh, 278 F.3d 563, 566 (6th Cir. 2002)).
III. Absence of Clear Error
At sentencing the United States bears the burden of proving
by a preponderance of the evidence any factors used to support a
sentencing enhancement (United States v. Gibson, 985 F.2d 860,
866 (6th Cir. 1993)). As we said in United States v. Warwick,
149 Fed. Appx. 464, 467 (6th Cir. 2005), citing United States v.
Unger, 915 F.3d 759, 760 (1st Cir. 1990):
Similarly, the Government bears the burden of proving
the existence of prior convictions used to determine
the defendant’s criminal-history category under the
Guidelines.
On appeal Thompson challenges the district court’s
conclusion that the United States met that burden, advancing the
same arguments he had made below. But those arguments fail here,
just as they did at the district court level.
We do not write on a clean slate in that respect. We have
twice affirmed sentences that--like Thompson’s--were based in
part on criminal histories that the United States established not
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by producing actual judgments but by proffering other reliable
documents that supported the fact of prior convictions (United
States v. Crowell, 493 F.3d 744, 748-49 (6th Cir. 2007); United
States v. Sanders, 470 F.3d 616, 623-24 (6th Cir. 2006)). And
other circuits have done the same (see, e.g., United States v.
Simpson, 94 F.3d 1373, 1381 (10th Cir. 1996); United States v.
Colletti, 984 F.2d 1339, 1345 (3rd Cir. 1992); Unger, 915 F.2d at
761; and United States v. Dyer, 186 Fed. Appx. 866, 868 (11th
Cir. 2006)(per curiam)).
As in Crowell and Sanders, here the United States did not
produce a copy of the judgment stemming from Thompson’s North
Carolina convictions. But just as in those cases, it did produce
documents (the computer printout and the plea agreement) that the
district court reasonably relied upon in making its factual
finding. Those documents are substantively no different from the
documents relied upon by the district courts in Crowell and
Sanders. Indeed, given the Sanders discussion (470 F.3d at 624)
of Shepard v. United States, 544 U.S. 13, 16 (2005) and the types
of documents that Shepard allows a sentencing judge to consider
in making factual determinations as to prior convictions, the
district court here could properly have considered even the third
document produced by the United States--the indictment.
As for the two documents that the district court did rely
on:
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1. As to the plea agreement, nothing in our case law
supports Thompson’s argument that a document must be
certified for it to be deemed reliable.
2. As to the two-page computer printout showing
Thompson’s North Carolina guilty plea, his challenge to its
reliability is trumped by the document’s having been
certified by the deputy clerk of North Carolina’s Superior
Court of Mecklenburg County.
Indeed, there is a special irony in Thompson’s having argued
in one breath that the district court is somehow obligated to
consider only certified documents, when in the next breath he
casts vague unsubstantiated aspersions on the one certified
document in the lot (accord, United States v. Chacon-Sanchez, 16
Fed. Appx. 749, 750 (9th Cir. 2001), explaining that appellant
cannot “challenge[] the reliability of the computerized search in
only a vague way, merely asserting that the search is not always
accurate” without producing “evidence to substantiate this
claim”).
Finally, Thompson maintains that the district court should
have placed more weight on his attorney’s assertion at sentencing
that “there was no judgment” reflecting the prior state
convictions. But just such a barebones denial sought to be made
in Crowell was not enough to stand up to the weight of the other
evidence that was presented to the district court there, and that
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we found adequate (493 F.3d at 748-49)--even where the defendant
there had tried to corroborate his assertion with a computer-
generated document from the clerk of court indicating that
Crowell had no juvenile record. Thompson’s purely oral denial,
lacking even the type of paper submission that we found
inadequate in Crowell, cannot dictate a different result here.
IV. Conclusion
Given the evidence presented at Thompson’s sentencing
hearing as to his prior North Carolina convictions, the district
court did not commit any clear error in finding that the United
States had established those convictions by a preponderance of
the evidence and in sentencing Thompson accordingly. Thompson’s
objection to the existence of those convictions and to the United
States’s failure to produce a copy of the judgment do not lead us
to a contrary conclusion. Thompson’s sentence is therefore
affirmed.
AFFIRMED.
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