United States v. 2010-08-20 | 09-50399 | USA V. JOSEPH LANGER | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 09-50399
Plaintiff-Appellee, D.C. No.
v. 2:07-cr-00818-  VBF-2JOSEPH GALAVIZ LANGER,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the Central District of California
Valerie Baker Fairbank, District Judge, Presiding
Argued and Submitted
June 7, 2010—Pasadena, California
Filed August 20, 2010
Before: Stephen S. Trott and William A. Fletcher,
Circuit Judges, and Charles R. Breyer, District Judge.*
Opinion by Judge Charles R. Breyer
*The Honorable Charles R. Breyer, United States District Judge for the
Northern District of California, sitting by designation.
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COUNSEL
Christopher Brunwin, Michael J. Raphel, Jean-Claude Andre,
OFFICE OF THE U.S. ATTORNEY, Los Angeles, Califor-
nia, for the appellee.
Davina T. Chen, Jonathan D. Libby, FEDERAL PUBLIC
DEFENDER’S OFFICE, Los Angeles, California, for the
appellant.
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OPINION
BREYER, District Judge:
This appeal concerns whether rap sheets are sufficiently
reliable for purposes of the Sentencing Guidelines to prove
the duration and date of imposition of a prior sentence. Defen-
dant in this case pleaded guilty on December 18, 2008 to one
count of conspiracy to distribute cocaine. At sentencing, the
Government relied on Defendant’s rap sheet to argue that his
prior convictions justified placing him in criminal history cat-
egory II under the Sentencing Guidelines. Although Defen-
dant did not dispute that he had been previously convicted, he
argued that the rap sheets alone could not establish (1) that the
sentence was sufficiently long to justify placing him in cate-
gory II, or (2) that the sentence was not stale for purposes of
the sentencing guidelines.
Ninth Circuit cases establish that a sentencing judge can
rely on rap sheets in certain limited circumstances. However,
this Circuit has not previously decided whether a rap sheet, in
the absence of any corroborating evidence, is sufficiently reli-
able to establish by a preponderance of the evidence the tim-
ing of a conviction and the length of the resultant sentence. As
an initial matter, it is important to note that, unlike some other
cases in which the reliability of a rap sheet is questioned,
Defendant here does not argue that he was not, in fact, con-
victed of the crime listed on the rap sheet. He concedes the
fact of conviction. He argues instead that the rap sheet was
not “sufficiently reliable to establish the date and length of a
prior sentence.” Notwithstanding his suspicion as to the reli-
ability of his rap sheet, Defendant presented no evidence at
sentencing—or at any other time—undermining in any way
the facts reflected in the rap sheet. He argues simply that the
Government bore the burden of proving his criminal history,
and because it relied solely on per se unreliable evidence, it
failed to meet its burden.
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We disagree. In the absence of any evidence suggesting
that the rap sheet contained errors of fact, and in the absence
of a dispute as to the existence of the prior conviction, we
conclude that the rap sheet was sufficiently reliable to justify
applying criminal history category II.
BACKGROUND
On December 18, 2008, Defendant pled guilty to one count
of conspiracy to distribute cocaine. [2 ER 121] A Presentence
Report (“PSR”) was issued on February 23, 2009. That PSR
calculated Defendant’s criminal history as category II based
on three criminal history points. [PSR ¶¶ 35-39] Two points
were based on convictions obtained in August 1997 for bat-
tery, willful cruelty, and threatening to commit a crime with
the intent to terrorize. A third point was assigned based upon
an April 1997 conviction for assault.
Defendant objected to the PSR, arguing that the judge
should not consider the prior convictions reported in the PSR
because the certified court records documenting those convic-
tions had been destroyed. Therefore, according to Defendant,
there was no proof that the prior sentence was of sufficient
length to justify applying two criminal history points. On July
23, 2009, the Probation Office responded in an addendum to
the PSR. [PSR 328] The Probation Office concluded that, as
to the August 1997 convictions, the “conviction[ ] and
imposed sentence . . . was fingerprint-verified as belonging to
the defendant, according to his CLETS rapsheet, and is thus
deemed reliable.” As to the April 1997 conviction, the Proba-
tion Office concluded that the “conviction and imposed sen-
tence . . . was identified as belonging to the defendant,
according to his CLETS rapsheet, but a fingerprint match was
not made. However, this conviction clearly belongs to the
defendant because the arrest information detailed in the
CLETS rapsheet was confirmed and expanded upon by the
arrest report . . . .” The probation officer also noted that, even
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if the April 1997 conviction were not considered, Defendant’s
history would still place him in category II.
Defendant’s sentencing hearing was held on July 27, 2009.
[1 ER 1-63] The judge referenced the dispute regarding the
proper criminal history category, and the defense attorney
explained that
whether or not the date that the sentence was
imposed — it states August 28, ‘97 — if there’s a
typo there and we don’t know that, that makes a dif-
ference based on the age, for example, because this
conviction is so old, but it’s on the verge, literally,
of becoming too old to consider.
Defense counsel went on to argue that the duration of the sen-
tence was similarly important, because a shorter sentence
might not have justified consideration of the sentence under
the Guidelines.
On July 30, 2009, the district court concluded that Defen-
dant’s August 1997 convictions had been adequately proved
by the rap sheet. As the judge explained: “The Court finds
that the arrest, conviction, and sentence are adequately shown
by the government referring to the fingerprint verified rap
sheet.” The court found a “closer question” as to the April
1997 conviction, and sustained Defendant’s objection to
including that conviction in his criminal history. The April
1997 conviction was therefore not included in Defendant’s
criminal history.
Defendant was ultimately sentenced to 87 months in prison,
and to a five-year term of supervised release.
STANDARD OF REVIEW
This Court reviews for abuse of discretion whether a “rap
sheet was sufficiently reliable to be used in calculating [a
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defendant’s] criminal-history score.” United States v.
Alvarado-Martinez, 556 F.3d 732, 735 (9th Cir. 2009). See
also United States v. Alvarado-Guizar, 361 F.3d 597, 600 (9th
Cir. 2004) (“We . . . review for abuse of discretion a district
court’s evaluation of the reliability of evidence used for sen-
tencing purposes.”).
Defendant argues that review should be de novo. Defendant
asserts that the question at issue here concerns the application
of law to facts, because “there was no dispute over the rele-
vant facts (that the court records had been destroyed and the
only information available was a [rap sheet]).” [Blue Br. 12]
This argument misidentifies “the relevant facts.” Whether or
not the parties agreed about the evidence that was or was not
available, they most certainly did not agree about the central
facts at issue in the sentencing: the date and length of Defen-
dant’s prior sentence. Defendant did not think the rap sheet
was sufficiently reliable to prove these facts. The Government
did. The question then concerns the reliability of the evidence
relied upon by the district judge. “[A] district court’s evalua-
tion of the reliability of evidence used for sentencing pur-
poses” is reviewed “for an abuse of discretion.” Id.
DISCUSSION
Defendant raises only one issue in this appeal: Is a
fingerprint-matched rap sheet sufficiently reliable to establish
the date of a prior conviction and the length of the resultant
sentence for the purpose of assigning criminal history points
under the Sentencing Guidelines? For the reasons explained
below, we conclude that the rap sheet was sufficiently reliable
in this case. The sentence imposed by the district court is
therefore AFFIRMED.
[1] The Sentencing Guidelines provide that:
When any factor important to the sentencing deter-
mination is reasonably in dispute, the parties shall be
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given an adequate opportunity to present information
to the court regarding that factor. In resolving any
dispute concerning a factor important to the sentenc-
ing determination, the court may consider relevant
information without regard to its admissibility under
the rules of evidence applicable at trial, provided
that the information has sufficient indicia of reliabil-
ity to support its probable accuracy.
U.S.S.G. § 6A1.3(a) (emphasis added). As is made clear in
this section, while the sentencing judge is not limited by the
Rules of Evidence, she can only consider information that
“has sufficient indicia of reliability to support its probable
accuracy.”
[2] Defendant argues that his rap sheet was not sufficiently
reliable to support adding two points under § 4A1.1(b) of the
Sentencing Guidelines. That Section provides that a sentenc-
ing judge is to “[a]dd 2 [criminal history] points for each prior
sentence of imprisonment of at least sixty days,” taking care
not to double count a sentence also considered under
§ 4A1.1(a). Defendant argues first that the rap sheet is insuffi-
ciently reliable to prove that the sentence was for “at least
sixty days” as required by § 4A1.1(b). Second, he argues that
it is similarly insufficient to prove that the prior conviction
was recent enough to be relevant under the Guidelines. Under
§ 4A1.2(e)(2) and (3), a “prior sentence” for purposes of
§ 4A1.1(a) must have been “imposed within ten years of the
defendant’s commencement of the instant offense. . . . Any
prior sentence not within the time periods specified above is
not counted.” According to Defendant, his rap sheet is not
sufficiently reliable to prove that his conviction was “imposed
within ten years” of the commencement of his federal offense.
[3] As recounted in the PSR, Defendant’s rap sheet
reflected the imposition of a 180-day prison sentence on
August 28, 1997. Such a sentence is three times longer than
§ 4A1.1(a) requires. The PSR also reflects that Defendant’s
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federal crime “commenced” in October 2005, which is eight
years after the August 1997 conviction listed on Defendant’s
rap sheet. For purposes of the ten-year limitation period of
§ 4A1.2, Defendant’s prior conviction would have been stale
only if it had been imposed earlier than October 1995. In
other words, in order for the prior conviction to be “stale,” the
rap sheet must have been more than a few days off—it must
have reflected a conviction taking place two years after that
date on which it actually occurred.
[4] The parties devote much of their briefing to Alvarado-
Martinez, 556 F.3d 732 (9th Cir. 2009). Alvarado-Martinez
concerned, among other things, whether a fingerprint-matched
rap sheet “was sufficiently reliable to be used in calculating
[the defendant’s] criminal-history score.” 556 F.3d at 735.
The panel concluded that it was sufficiently reliable, but lim-
ited its holding “to the circumstances presented here, namely
the existence of a fingerprint-matched rap sheet and the
absence of other evidence that would undermine the rap
sheet’s reliability.” Id. at 735 n.2. The panel “express[ed] no
opinion on the reliability of a rap sheet that is, for example,
not compiled on the basis of fingerprint matching or is other-
wise undermined by contradictory evidence.” Id. The Govern-
ment contends that this case controls here.
Defendant seeks to distinguish Alvarado-Martinez because
in that case the sentencing judge also had access to docket
sheets that listed the crimes in question. The question in that
case was whether those crimes could be attributed to the
defendant, and the district court relied on the fingerprint-
identified rap sheet to connect the defendant to the docket
sheet (the use of an alias resulted in the docket sheet not
reflecting the defendant’s name). In this case there is no
underlying court record reflecting the nature of the sentences,
because those records were all destroyed. According to
Defendant, while a rap sheet may be sufficient to prove
identity—to connect a defendant to a crime reflected in court
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records—it is not sufficient on its own to prove the details of
those convictions.
[5] This difference is immaterial. The Alvarado-Martinez
court explained the question before it as “whether a district
court abuses its discretion by concluding that a fingerprint-
matched rap sheet, in the absence of contrary evidence, is suf-
ficiently reliable for assigning criminal-history points.” 556
F.3d at 734 n.1. It did not limit its holding to questions of
identity or to cases where the rap sheet is corroborated by
some other piece of evidence, but rather to cases where the
rap sheet is fingerprint-verified and there is no contradictory
evidence.
[6] Such a result is similarly if not more compelling in this
case. First, the parties agree that more reliable evidence that
could corroborate the rap sheet simply is not available. The
relevant court records, including the docket sheet, have been
destroyed. Had Defendant submitted some form of evidence
to undermine the rap sheet—such as evidence that the convic-
tion actually happened in 1995 or earlier, as opposed to 1997
—the district judge would have been obligated to weigh the
evidence, and might have concluded that the rap sheet was of
little persuasive value. But Defendant did not do so. Second,
unlike in Alvarado-Martinez, Defendant concedes the fact of
conviction. This case therefore does not present the question
of whether an uncorroborated, albeit fingerprint-verified, rap
sheet is sufficiently reliable to prove the conviction itself.
Given the fact that Defendant introduced no contradicting evi-
dence, the fact that more reliable documentary evidence had
previously been destroyed, and the fact that Defendant con-
ceded the fact of conviction, we cannot conclude that the dis-
trict judge abused her discretion in relying on the fingerprint-
verified rap sheet.
Such an outcome is also broadly consistent with the rules
adopted in other circuits, which have similarly condoned the
use of rap sheets in certain circumstances. See, e.g., United
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States v. Rodriguez-Arreola, 313 F.3d 1064, 1068 (8th Cir.
2002) (relying in part on a defendant’s rap sheet); United
States v. Shinault, 147 F.3d 1266, 1278 (10th Cir. 1998)
(same); United States v. Ibanez, 924 F.2d 427, 430 (2d Cir.
1991) (same). While none of these cases is precisely analo-
gous to this one, these cases still reflect the fact that other
courts find rap sheets sufficiently reliable to be considered in
the sentencing process. No circuit has adopted the rule advo-
cated by Defendant. As noted by the First Circuit, rather than
impose per se prohibition on the use of imperfect evidence at
sentencing, “the wiser course is to leave reliability decisions
and credibility determinations to the informed discretion of
the district court, while rigorously ensuring that defendants
have a sufficient opportunity to impeach tenuous evidence in
appropriate ways, such as through cross-examination or by
the introduction of evidence of their own.” United States v.
Shrader, 56 F.3d 288, 295 (1st Cir. 1995).
CONCLUSION
[7] For the reasons explained above, the sentence imposed
by the district court is AFFIRMED. In a case such as this one,
where the district judge is presented with no evidence to
undermine the accuracy of the rap sheet, and the defendant
has in fact conceded the existence of the conviction, the judge
is entitled to rely on the rap sheet as evidence of the nature
of a defendant’s prior crimes.
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