                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4370


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ERNEST JAMES MCDOWELL, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
District Judge. (5:10-cr-00296-FL-1)


Argued:   January 29, 2014                  Decided:   March 11, 2014


Before MOTZ, KING, and DIAZ, Circuit Judges.


Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge King and Judge Diaz joined.


ARGUED: Robert Earl Waters, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.    Jennifer P.
May-Parker, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.   ON BRIEF: Thomas P. McNamara, Federal
Public Defender, Stephen C. Gordon, Assistant Federal Public
Defender, Bettina K. Roberts, Research and Writing Attorney,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina,
for Appellant. Thomas G. Walker, United States Attorney, Yvonne
V. Watford-McKinney, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
DIANA GRIBBON MOTZ, Circuit Judge:

       Ernest James McDowell, Jr., appeals his 196-month sentence

imposed pursuant to the Armed Career Criminal Act.                                    He contends

that   the       district       court       erred       by    relying    on     an    uncertified

criminal     record        check       as    proof       that    he     committed          a    violent

felony      in    New     York       more    than       forty    years       ago.          Given   the

applicable        burden        of    proof      and     our     deferential          standard       of

review, we affirm.



                                                   I.

                                                   A.

       In    August       2010,        DEA       agents       authorized       a      confidential

informant         to    buy     heroin        from       McDowell,       a     suspected         North

Carolina drug dealer.                 The informant placed an order for fifteen

bundles      of        heroin     with       a     man       believed     to     be    McDowell’s

distributor.

       After taking the informant’s order, the distributor called

McDowell,        who     promptly       left       his       home,    drove     to     a       friend’s

apartment,        picked        her    up,       and     began       driving       again.          Soon

thereafter, DEA agents stopped McDowell’s car.                                 A narcotics dog

searched the exterior of the car and alerted the agents to the

presence         of    drugs     inside.           The       agents     searched       the        car’s

interior,        where     they       found      heroin.         They     next       searched       the

friend’s         apartment       with        her       consent,       finding        more       heroin

                                                   2
apparently belonging to McDowell.                       Then the agents obtained a

search warrant for McDowell’s home, where they found yet more

heroin and a firearm.

       In   March    2011,          McDowell         pled     guilty   without      a    plea

agreement to one count of possession of heroin with intent to

distribute, in violation of 21 U.S.C. § 841(a)(1), and one count

of being a felon in possession of a firearm, in violation of 18

U.S.C. §§ 922(g)(1) & 924.

                                             B.

       Prior   to    the       sentencing            hearing,     McDowell’s      probation

officer     prepared      a    presentence           report     (“PSR”).      Pursuant       to

Section     4B1.4    of       the    Sentencing          Guidelines,       the    probation

officer increased McDowell’s recommended sentence in the PSR on

the ground that he was an “armed career criminal” as defined by

the    Armed   Career     Criminal         Act       (“ACCA”),    18   U.S.C.     § 924(e).

McDowell’s     status         as     an   armed        career     criminal       yielded      a

Guidelines range of 188-235 months’ imprisonment.

       In recommending that McDowell be designated an armed career

criminal,      the     probation          officer        concluded     that      three       of

McDowell’s     prior      convictions        met       the    ACCA’s   definition       of    a

“violent felony.”          The Government located formal court judgments

evidencing two of the three convictions.                        But the Government was

unable to produce a formal judgment documenting the third -- a

1971    conviction        in       the    Bronx       for     second   degree      assault.

                                                 3
Instead,      the      Government         relied       on     a    criminal       record       check

obtained     from      the    National        Crime      Information         Center       (“NCIC”)

database, which listed the 1971 assault among the crimes for

which McDowell had been convicted.

      The    NCIC      is     a    computerized             index    of   criminal         justice

information available to, and updated by, federal, state, and

local law enforcement agents.                         See National Crime Information

Center, Fed. Bureau of Investigation, http://www.fbi.gov/about-

us/cjis/ncic/ncic (last visited Feb. 18, 2014) (“NCIC Website”).

The   FBI    administers           the    NCIC,       but    law    enforcement          officials

across      the     country        can     access       the       database     to       help    them

“apprehend fugitives,” “locate missing persons,” and “perform[]

their    official       duties         more     safely.”          Id.     As      of    2011,    the

database contained 11.7 million records, including records of

arrests and convictions.                  Id.     To avoid misidentifying suspects

who   provide       false     names,       the    NCIC       typically       links       suspects’

criminal      histories           to     their        fingerprints.            See       Use     and

Management        of   Criminal        History        Record       Information,         Bureau    of

Justice Statistics 10 (2001).

      The    NCIC      report       at    issue       here    consists       of     a    five-page

printout     detailing        McDowell’s          alleged         criminal     history.          The

report      lists      four       different       names       for    McDowell:            “Michael

Mc Dowell,” “Ernist J. McDowell,” “Micheal McDowell,” and “James

Mac   Dowell.”         It     also       provides      four       different    birthdays         for

                                                  4
McDowell -- all inaccurate -- and two social security numbers.

The report correctly details McDowell’s birthplace, his height,

his    weight,     and    his    hair    color,     among     other   identifying

characteristics.          And    the    report    provides    information        about

McDowell’s     arrests     and    convictions      in   New   York    State.       As

relevant here, the report indicates that McDowell pled guilty

under the name “Michael Mc Dowell” to second degree assault in

the Bronx in 1971, a conviction for which he received a sentence

of four years’ imprisonment.

                                          C.

       At   his    sentencing      hearing,      McDowell     objected      to    the

probation officer’s reliance on the NCIC report to establish the

fact   of    the   1971   assault.        He     contended    that    the   report,

standing alone, did not suffice to prove that he committed that

crime.      McDowell emphasized that the alleged assault took place

more than forty years earlier and that the record check referred

to him as “Michael Mc Dowell” rather than by his real name,

Ernest James McDowell, Jr.

       The Government acknowledged that a certified court record

of the 1971 conviction was “no longer available,” but contended

that NCIC reports are generally reliable and that considerable

evidence     corroborated        this    particular      NCIC    report.           The

Government pointed out that McDowell had been convicted of other

crimes in the Bronx shortly before the 1971 assault, and that

                                          5
Bronx officials therefore would not have misidentified him in

1971.     Additionally, the Government noted that McDowell had been

convicted of a federal crime in 1983 that would have resulted in

a criminal background check revealing the 1971 conviction.                                If

the 1971 conviction never took place, the Government argued,

McDowell would have objected in 1983 rather than waiting another

thirty    years      to     do   so.         And    McDowell’s       probation     officer

explained      that       McDowell     had      been    convicted      under   the      name

“Michael” in 1970 -- a conviction McDowell did not contest --

suggesting that this was an alias he used at the time of the

challenged 1971 conviction.

      Although the NCIC report was never entered into the record,

the district court relied on it to find that “the proof [was]

sufficient” to show that McDowell committed the 1971 assault.

Accordingly, the court sentenced McDowell as an armed career

criminal      to    213     months’       imprisonment.         On     appeal,     without

addressing         McDowell’s     contention           that   the    NCIC    report      was

fatally unreliable, we concluded that the district court erred

by   basing    its     sentence      on    a    report    never      made   part   of    the

record.     United States v. McDowell, 497 F. App’x 345, 348 (4th

Cir. 2012) (unpublished).               In light of the report’s absence, we

explained     that     “there     was      no   ‘evidence’      in    the   record      that

McDowell was convicted for second-degree assault in 1971, only



                                                6
argument before the district court.”                      Id.     We therefore vacated

the sentence and remanded for resentencing.

       On remand, the Government introduced the NCIC report, and

again relied on it.        In response, McDowell again argued that the

NCIC record check constituted an “inherently unreliable” means

of    establishing    an     ACCA      predicate          offense.         McDowell    also

asserted     that    the   report        at       issue     here     was     particularly

unreliable     because     it    misstated          his     name     and    listed     four

different and inaccurate birthdays.

      The   Government     responded          by    noting      that   McDowell’s       PSR

included “Iron Mike” as an alias for McDowell, indicating that

Michael was a name “he owns and recognizes for himself.”                                And

McDowell’s    probation      officer     provided          a    statement,     explaining

that the NCIC compiles all names and birthdays that a defendant

gives upon arrest; thus, the report’s reference to McDowell’s

aliases and to his four different birthdays should not be taken

as evidence of unreliability.                 The probation officer explained

that he had spoken to an FBI analyst who “confirmed through both

fingerprint    [analysis]       as     well        as    New    York   [Department       of

Corrections]      records”      that    the        1971    conviction       belonged     to

McDowell.     Accepting the court’s invitation to ask questions of

the   probation     officer,     McDowell’s             counsel    asked     whether    the

probation officer knew who entered the information regarding the



                                              7
1971   arrest     into    the   NCIC     database.       The    probation     officer

responded that he did not.

       The district court then entered the NCIC report into the

record.       Given the Government’s explanations as to its accuracy,

the court concluded that it was “appropriate to rely on” the

report       because    “[t]here    is    a     lot    that    substantiates”      it.

Accordingly, the court once again designated McDowell an armed

career criminal.         The court then sentenced him to 196 months’

imprisonment -- a somewhat shorter sentence than the initial

sentence due to McDowell’s good behavior in the interim.



                                          II.

       The     ACCA    mandates     a    term    of    fifteen     years    to     life

imprisonment      for    felons    convicted      of   unlawfully      possessing     a

firearm after committing three “violent felon[ies]” or “serious

drug offense[s].”         18 U.S.C. § 924(e).           The Government bears the

burden of proving by a preponderance of the evidence that a

defendant      committed    a     predicate     violent       felony   --   the   same

standard that applies to any other sentencing factor.                            United

States v. Harcum, 587 F.3d 219, 222 (4th Cir. 2009).                        We review

a district court’s legal conclusions at sentencing de novo and

its factual findings for clear error.                  United States v. Farrior,

535 F.3d 210, 217 (4th Cir. 2008).



                                           8
     When    a    defendant      objects       to   information   in    a    PSR,   the

district    court    must   “rule    on    the      dispute”   before    imposing    a

sentence.    Fed. R. Crim. P. 32(i)(3)(B).                  In resolving a dispute

regarding the PSR, the court may consider information that “has

sufficient       indicia    of    reliability        to     support    its   probable

accuracy.”         U.S.S.G.      § 6A1.3(a).          The     party    objecting    to

information in a PSR has an “affirmative duty” to show that the

information is incorrect.           United States v. Terry, 916 F.2d 157,

162 (4th Cir. 1990); see also United States v. Randall, 171 F.3d

195, 210-11 (4th Cir. 1999).

     On appeal, we afford considerable deference to a district

court’s determinations regarding the reliability of information

in a PSR.    We will not disturb a court’s determination regarding

the reliability of a PSR unless we are “left with the definite

and firm conviction that a mistake has been committed.”                        United

States v. Harvey, 532 F.3d 326, 336 (4th Cir. 2008) (quotation

marks omitted).

     With these principles in mind, we turn to the case at hand,

in which McDowell challenges his sentence on both evidentiary

and constitutional grounds.




                                           9
                                          III.

      McDowell    initially        contends      that    the    NCIC   report    cannot

establish, even by a preponderance of the evidence, the fact of

the 1971 conviction.

      Every court of appeals to address a similar argument in a

published opinion has rejected it.                     All have concluded that a

district court may use an NCIC report to help establish the fact

of a prior conviction.             Two appellate courts have held that an

NCIC report alone may establish a predicate conviction.                             See

United States v. Urbina-Mejia, 450 F.3d 838, 840 (8th Cir. 2006)

(district     court    did   not    clearly      err    in   concluding    that   NCIC

report proved a prior conviction because defendant “provide[d]

no   evidence    that   the    NCIC       report   [wa]s       unreliable”);     United

States   v.     Marin-Cuevas,       147    F.3d    889,      895   (9th   Cir.    1998)

(district court did not err in finding prior conviction because

defendant’s probation officer obtained the information “from a

reliable      source    [--]       the    computerized         criminal   history”).

Another court has concluded that an NCIC report, together with a

letter from a court clerk attesting to the conviction, sufficed

to prove a prior conviction.              United States v. Martinez-Jimenez,

464 F.3d 1205, 1212 (10th Cir. 2006).                     And a fourth court has

held that an NCIC report may establish a prior conviction, but

only if the district court makes additional findings that the



                                           10
report is reliable.       United States v. Bryant, 571 F.3d 147, 155

(1st Cir. 2009).

       McDowell distinguishes some of these cases and dismisses

others as wrongly decided.               He raises concerns with respect to

the reliability of NCIC reports in general and his report in

particular.      We address each of these arguments in turn.

                                          A.

       First, McDowell suggests that NCIC reports are inherently

too inaccurate to be relied on at sentencing.                     To support this

argument, he points to cases in which information included in an

NCIC report was found to be false.                 He notes that such reports

lack   the   reliability       of   certified      court    records,       which   are

created for the express purpose of memorializing the fact of a

criminal conviction.         And he emphasizes that a goal of the NCIC

is   to   help    officers     “perform[]      their    official      duties       more

safely,” NCIC       Website,    supra,      from   which    he    infers    that   the

database errs on the side of overinclusivity.

       Certainly, some case law does support McDowell’s contention

that   the   NCIC    database       is   fallible.         See,   e.g.,    Baker     v.

McCollan, 443 U.S. 137, 141 (1979) (criminal background check

mistakenly attributed to defendant a crime actually committed by

his brother); United States v. Kattaria, 553 F.3d 1171, 1177

(8th Cir. 2009) (en banc) (NCIC report mistakenly indicated that

defendant’s      prior   conviction        involved    a    firearm);      Finch     v.

                                          11
Chapman, 785 F. Supp. 1277, 1278–79 (N.D. Ill. 1992) (mistake in

NCIC database led twice to plaintiff’s wrongful arrest).

       But,    although      McDowell       purports      to    raise    an     empirical

question regarding the accuracy of NCIC reports, he provides no

evidence to suggest that the NCIC database proves inaccurate

with any      significant     frequency.           Indeed,      when    asked      at   oral

argument whether he could cite statistical evidence regarding

the accuracy of the NCIC database, McDowell’s counsel pointed to

Urbina-Mejia,       450    F.3d   at    839,      which    recounted      a     probation

officer’s remark that one out of two hundred NCIC reports he had

encountered in his career was inaccurate.                      Anecdotal evidence of

a   99.5%       accuracy      rate      fails       to     establish          categorical

unreliability; rather, it severely undermines McDowell’s claim

that NCIC reports cannot be trusted.

       Moreover,     we    note   that      the     limited      available         evidence

suggests that the NCIC database is generally (albeit not always)

accurate.       See Improving Access to and Integrity of Criminal

History       Records,     Bureau      of     Justice      Statistics          2    (2005)

(estimating 0.1% error rate in firearm background checks, which

rely   on     the   NCIC);    Electronic         Record   Systems       and    Individual

Privacy, Fed. Gov’t Info. Tech., 133-34 (June 1986) (audit of

five states’ records indicated that 5.5% of NCIC wanted persons

entries were invalid).



                                            12
       The pervasive use of NCIC reports throughout the criminal

justice         system   further      indicates        that    such    reports     may   be

trusted.           Courts use NCIC reports to make bail and pretrial

release decisions; prosecutors rely on NCIC reports at trial to

prove       that    witnesses       committed      a   relevant       prior   crime;     and

probation        officers     use    NCIC    reports     to    establish      defendants’

criminal        histories     at    sentencing.        See    Use   and   Management     of

Criminal         History      Record        Information,        Bureau        of   Justice

Statistics 18-20 (2001); United States v. Wilson, No. 09–20138,

2009 WL 3818192, at *1 (E.D. Mich. Nov. 13, 2009) (NCIC report

used       to   introduce     prior-crime       evidence       against    defendant      at

trial); United States v. Townley, 472 F.3d 1267, 1277 (10th Cir.

2007)       (NCIC    report     used    to      establish       defendant’s        criminal

history at sentencing).               In view of this widespread use of NCIC

reports, we cannot agree with McDowell’s blanket assertion that

NCIC reports are categorically unreliable. ∗


       ∗
       The Supreme Court has cautiously authorized the police to
rely on computerized record checks -- even ones that later prove
inaccurate -- to execute warrants.     In Arizona v. Evans, 514
U.S. 1 (1995), police arrested and searched a defendant based on
a record check mistakenly indicating that he was subject to an
outstanding arrest warrant.     The Court declined to address
whether the arrest itself violated the Fourth Amendment, id. at
6 n.1, but concluded that evidence discovered during the arrest
need not be suppressed, id. at 16.      Three Justices (on whose
concurrence the majority disposition depended) emphasized that
police may rely on computer records only to the extent that such
reliance is reasonable.    They explained that while the police
“are entitled to enjoy the substantial advantages [computer-
(Continued)
                                              13
                                             B.

       Alternatively,         McDowell      argues       that,   even   if   courts    can

generally trust NCIC reports, the specific report at issue here

manifests       such     blatant      indicia       of     unreliability      that    the

district court clearly erred in crediting it.                        He contends that

the NCIC report’s inaccurate statement of his name and birthday

and    the     passage   of    forty     years     since     the    alleged    New    York

conviction renders the report unworthy of credence.

       These issues do cast some doubt on the report’s accuracy.

But,     as     noted    above,       the    Government          provided     unrebutted

explanations       regarding      each      of    the    report’s   alleged     defects.

The PSR noted that McDowell answered to the street name of “Iron

Mike” and that he occasionally used the alias “Michael.”                               The

probation officer clarified that an NCIC report includes any

names and birthdays provided by the defendant upon arrest --

including false ones.           The probation officer also stated that he

had spoken with an FBI agent who confirmed that the NCIC report

linked        McDowell    to    the      1971      assault       through     fingerprint

analysis.       In addition, the Government pointed out that McDowell



based recordkeeping] technology confers,” they may not “rely on
it blindly.”    Id. at 17 (O’Connor, J., concurring).    Because
there was no reason to doubt the accuracy of the record check at
issue in that case, the concurrence agreed that the police acted
reasonably in relying on it.   Accord Herring v. United States,
555 U.S. 135, 146 (2009).



                                             14
had been convicted of other crimes in the Bronx under the alias

“Michael” shortly before 1971, rendering the subsequent assault

conviction more likely.         And finally, the Government noted that

McDowell    was   convicted      of   a    federal        crime    in   1983   --     a

conviction that would have resulted in a criminal background

check revealing the 1971 conviction -- and that if he had a

legitimate basis for challenging the 1971 conviction, would have

done so then.

      These explanations vary in their persuasiveness, and, even

taken together, fail to erase all doubts regarding the accuracy

of the NCIC report at issue here.                 But the district court did

not clearly err in crediting them.               Together, these explanations

sufficiently substantiated the information in the NCIC report to

permit the court to conclude by a preponderance of the evidence

that McDowell committed the 1971 assault.                    Indeed, given that

the   district         court   elicited         facts     rebutting      McDowell’s

objections to the NCIC report and corroborating the information

contained   in    it,    the   district        court’s    ruling   would   seem     to

satisfy even the First Circuit’s requirement that the sentencing

court make an “additional inquiry into the reliability” of an

NCIC report before relying on it.               Bryant, 571 F.3d at 155.

      We need not and do not hold that a contested NCIC report

standing alone would suffice to establish the fact of a prior

conviction.       We    hold   only   that      the     district   court   did      not

                                          15
clearly err in finding that this report, in addition to the

corroboration provided by the Government, established the fact

of the 1971 conviction by a preponderance of the evidence.



                                              IV.

       McDowell      also       ascribes        constitutional           error       to    the

proceedings       below.             He    contends        that     in     applying        the

preponderance-of-the-evidence standard to establish the fact of

his    prior   conviction,           the   district    court      violated         his    Sixth

Amendment right to have a jury find each element of his offense

beyond a reasonable doubt.                    At oral argument, the Government

conceded that the NCIC report would not suffice to prove the

fact of McDowell’s 1971 conviction beyond a reasonable doubt.

       Normally, the Sixth Amendment requires any fact that raises

the statutory maximum or mandatory minimum penalty for a crime

to    “be   submitted     to     a    jury,    and   proved       beyond   a       reasonable

doubt.”        Apprendi     v.       New   Jersey,    530    U.S.    466,      490       (2000)

(announcing this rule with respect to statutory maximums); see

also Alleyne v. United States, 133 S. Ct. 2151, 2163 (2013)

(extending the rule to mandatory minimums).                          Adherence to the

demanding      reasonable-doubt            standard        “reflect[s]         a    profound

judgment     about   the       way    in   which     law    should    be   enforced        and

justice administered.”               Apprendi, 530 U.S. at 478 (quoting In re

Winship, 397 U.S. 358, 361-62 (1970)) (alteration in original).

                                              16
       Because an ACCA enhancement increases both a defendant’s

statutory    maximum      and    mandatory          minimum      penalties,        the   Sixth

Amendment would seem to require the Government to prove an ACCA

predicate felony beyond a reasonable doubt.                           The Supreme Court,

however,    has    recognized          an   exception          to    the    general      Sixth

Amendment rule:          a jury need not find the “fact of a prior

conviction” beyond a reasonable doubt.                         Apprendi, 530 U.S. at

490.      Instead,      the    Court    has       held    that      the    Sixth    Amendment

permits a judge to find the fact of a prior conviction by a mere

preponderance      of    the    evidence,          even   if     this     fact     raises   the

statutory maximum or minimum penalty for the current offense.

Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998).

       The Supreme Court has since described the Almendarez-Torres

holding as “at best an exceptional departure” from the normal

Sixth Amendment rule.           Apprendi, 530 U.S. at 487.                   The Court has

justified this “departure” on the ground that the defendant in

Almendarez-Torres “did not challenge the accuracy of [the prior

conviction] in his case” and that the prior conviction arose

“pursuant to proceedings with substantial procedural safeguards

of their own.”       Id. at 488.            The Court reasoned that these twin

protections       “mitigated      the       due     process         and    Sixth    Amendment

concerns otherwise implicated in allowing a judge to determine a

‘fact’ increasing punishment beyond the maximum of the statutory

range.”     Id.

                                              17
     Four       Justices     dissented      in    Almendarez-Torres.               Justice

Thomas,     who     joined      the        Almendarez-Torres           majority,         has

subsequently       stated     that    he    believes       the     case     was    wrongly

decided.        See Shepard v. United States, 544 U.S. 13, 28 (2005)

(Thomas, J., concurring).             Moreover, the Supreme Court’s recent

characterizations of the Sixth Amendment are difficult, if not

impossible,        to    reconcile         with    Almendarez-Torres’s              lonely

exception to Sixth Amendment protections.                     See Alleyne, 133 S.

Ct. at 2160 (“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

(quotation       marks   omitted));        Shepard,    544    U.S.     at    25    (“[T]he

Sixth     and    Fourteenth     Amendments        guarantee        a    jury      standing

between    a     defendant    and     the    power    of     the    State,        and   they

guarantee a jury’s finding of any disputed fact essential to

increase the ceiling of a potential sentence.”).

     Notwithstanding         these     recent     cases,     however,        Almendarez-

Torres remains good law, and we may not disregard it unless and

until the Supreme Court holds to the contrary.                         See Agostini v.

Felton, 521 U.S. 203, 237 (1997) (if a Supreme Court precedent

directly controls, “yet appears to rest on reasons rejected in

some other line of decisions, the Court of Appeals should follow

the case which directly controls, leaving to [the Supreme] Court



                                            18
the    prerogative    of    overruling     its       own   decisions”      (quotation

marks omitted)).

       But even as we reject McDowell’s Sixth Amendment claim, we

feel bound to acknowledge its force.                  The rationales justifying

the    Almendarez-Torres      exception        are    entirely     absent    in    this

case.     Unlike Almendarez-Torres, McDowell does not concede that

his    prior    conviction   in    fact    occurred.         Nor    was    there   any

assurance that the disputed 1971 conviction arose “pursuant to

proceedings with substantial procedural safeguards of their own”

that     mitigate    McDowell’s      Sixth       Amendment       concerns.          See

Apprendi, 530 U.S. at 488.           Application of the Almendarez-Torres

exception to this case thus untethers the exception from its

justifications      and    lays    bare   the    exception’s        incompatibility

with constitutional principles that are by now well settled.



                                          V.

       The district court increased McDowell’s statutory maximum

sentence on the basis of evidence that indicated -- but, as the

Government concedes, did not prove beyond a reasonable doubt --

that McDowell committed a crime forty years earlier.                         Several

members of the Supreme Court have expressed their belief that

the     Sixth   Amendment     prohibits        this    practice.          This     case

powerfully      testifies    why    reconsideration         of     the    Almendarez-

Torres exception may be warranted.               Under current law, however,

                                          19
a   court   may   find       the   fact    of    a   prior     conviction   by     a

preponderance     of   the    evidence.         Applying     this   standard,    the

district court did not clearly err in concluding that McDowell

committed the 1971 assault.           The judgment of the district court

is therefore

                                                                        AFFIRMED.




                                          20
