                                                                  NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       __________

                                      No. 09-2876
                                      __________

                           UNITED STATES OF AMERICA

                                            v.

                                  STEPHEN McCALL,
                                              Appellant
                                     __________

                    On Appeal from the United States District Court
                          for the Eastern District of Pennsylvania
                         (D.C. Criminal No. 2-08-cr-00626-001)
                    District Judge: The Honorable Timothy J. Savage

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  September 15, 2011

           BEFORE: SLOVITER, SMITH, and NYGAARD, Circuit Judges

                           (Opinion filed: October 21, 2011)
                                      __________

                              OPINION OF THE COURT
                                    __________

NYGAARD, Circuit Judge.

      Appellant Stephen McCall pleaded guilty, pursuant to a written plea agreement, to

being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Before

entering his plea, however, McCall‟s counsel requested that McCall undergo a
psychiatric evaluation to determine competency. The subsequent report found McCall

competent and, after a lengthy and detailed colloquy, the District Court agreed. The

District Court sentenced McCall to, inter alia, 180 months of imprisonment.

                                             I.

       On appeal, McCall argues that he was not competent to plead guilty and, therefore,

the District Court erred by accepting his guilty plea.1 McCall also argues that the District

Court erred by relying on the transcript of a state court sentencing hearing to find him an

armed career criminal. We find both issues meritless and will affirm. 2

                                             A.

       We begin with the competency determination, which we review for plain error

because McCall did not challenge it in the District Court. See United States v. Harris,

471 F.3d 507, 511 (3d Cir. 2006). Under plain error review, we may grant relief only if a

District Court committed an error, the error was plain, and the error affected substantial

rights. See United States v. Olano, 507 U.S. 725, 732 (1993).

       Here, the District Judge did not err, much less plainly err by finding McCall

competent to plead guilty. Judge Savage patiently and thoroughly questioned McCall

about his abilities and mental health during the plea hearing. He questioned McCall as to

any questions McCall might have about the charges against him, the possible

punishments to be imposed, the constitutional rights he would waive by pleading guilty,


1
 McCall is proceeding pro se on appeal.
2
 The District Court exercised jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

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and his educational and health backgrounds---specifically McCall‟s prior history of

mental illness and drug and alcohol addiction.

         Further, the District Judge found that McCall displayed sufficient ability to consult

with his lawyer and his lawyer testified to the same. This record presents no indication

that McCall did not understand the proceedings against him or that his guilty plea was

anything other than knowing and voluntary. Neither McCall nor his attorney stated that

he was not made aware of the ramifications of all plea provisions or that he did not

understand the rights he was waiving. Here, there is no error. The District Court

complied with the requirements of Rule 11 of the Federal Rules of Criminal Procedure by

questioning McCall to ensure both that he was competent to plead guilty, and that he was

aware of and understood the ramifications of his guilty plea. This challenge is without

merit.

                                              B.

         McCall also contends that the District Court improperly applied the Armed Career

Criminal Act (ACCA) in determining his sentence.3 Specifically, McCall argues that the

evidence presented by the Government at sentencing was insufficient to establish that two

of his four prior offenses required the application of the armed career criminal


3
  The Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), states, “[i]n the case
of a person who violates section 922(g) ... and has three previous convictions ... for a
violent felony or a serious drug offense, or both ... such person shall be fined under this
title and imprisoned not less than fifteen years.” Here, out of a total of four prior
offenses, McCall did not contest the applicability of two prior convictions. He
challenged the evidence of two others, however, arguing it was not sufficient to find them
“serious drug offenses” under the statute.

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enhancement. “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, which we review de novo.” United States v.

Howard, 599 F.3d 269, 271 (3d Cir. 2010) (internal citations omitted).

       That a criminal defendant was previously convicted of a crime may be confirmed

by the terms of the plea agreement, the charging document, the transcript of the colloquy

between judge and defendant, or some other comparable judicial record of this

information. See Shepard v. United States, 544 U.S. 13, 16 (2005) (holding that inquiry

under the Armed Career Criminal Act to determine statutory elements of prior conviction

is limited to judicial records and may not include documents that simply purport facts,

like police reports). This is not, however, an exhaustive list. See, e.g., United States v.

Siegel, 477 F.3d 87, 93-94 (3d Cir. 2007). Although Shepard does not explicitly state

that transcripts of sentencing hearings are admissible, we conclude that the transcript

reviewed by the District Court in this case is a “comparable judicial record” of

unquestioned reliability. Shepard, 544 U.S. at 26. See also United States v. Ngo, 406

F.3d 839, 843 (7th Cir. 2005) (stating that, under Shepard, the District Court may

consider a sentencing transcript, because it has “ „the conclusive significance‟ of a prior

judicial record”); United States v. Garcia, 470 F.3d 1143, 1148 n. 6 (5th Cir. 2006)

(considering sentencing transcript).

       Here, the state bills of information and sentencing orders did not indicate whether

McCall‟s prior offenses were punishable by at least ten years imprisonment. The District

Court consulted the transcript of McCall‟s sentencing for those offenses and learned that

                                              4
McCall‟s prior drug trafficking offenses carried maximum penalties of ten years

imprisonment. At the sentencing hearing, the Common Pleas Court found McCall faced

a mandatory minimum sentence, and McCall did not object. The District Court, therefore,

correctly reasoned this transcript showed that the state court convicted McCall of a

cocaine offense qualifying as an ACCA predicate offense. The District Court did not

impermissibly weigh evidence or reach novel conclusions of fact concerning McCall‟s

prior convictions, and therefore did not erroneously apply the mandatory minimum

sentence of the ACCA.

       These prior offenses were “serious drug offenses” as defined by the ACCA. Like

a record of a plea colloquy, the transcript of the sentencing hearings in this case provide a

verbatim record of a judicial proceeding conducted in open court. In that transcript, the

judge related the applicable maximum penalty (ten years‟ imprisonment), as well as

admissions by McCall to the facts that subjected him to that penalty. Indeed, defense

counsel acknowledged in the transcript that McCall‟s offense involved trafficking

cocaine and did not enter any objection. We have held that a “factual record adopted by

[a defendant]” is a judicial record upon which a court may rely under Shepard. Siegel,

477 F.3d at 93.4 Therefore, the District Court‟s use of the sentencing hearing transcript in

this case does not offend Shepard.


4
 Although Siegel involved a challenge to the Appellant‟s classification as a career
offender under U.S.S.G. § 4B1.1, we analyzed the evidence of the prior conviction under
Shepard, supra., and Taylor v. United States, 495 U.S. 575 (1990), holding that a district
court may rely on a pre-sentence investigation report as a “comparable judicial record”
where the defendant was given the opportunity to object to the report‟s contents and did
not do so. See 477 F.3d at 93.
                                              5
                                          II.

      For the reasons set forth above, we will affirm the judgment of conviction and

sentence.




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