                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4860


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,
Chief District Judge. (5:10-cr-00296-FL-1)


Argued:   October 25, 2012                  Decided:   November 28, 2012


Before KING and FLOYD, Circuit Judges, and R. Bryan HARWELL,
United States District Judge for the District of South Carolina,
sitting by designation.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.          Yvonne
Victoria Watford-McKinney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.      ON BRIEF: Thomas P.
McNamara, Federal Public Defender, Raleigh, North Carolina, for
Appellant.   Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

      Ernest James McDowell, Jr. pled guilty to possession with

intent to distribute heroin and being a felon in possession of a

firearm. On August 8, 2011, the district court sentenced him to

213 months of imprisonment and five years of supervised release.

On    appeal,      McDowell       alleges    the     district       court    erred    by

sentencing him as an armed career criminal. For the reasons that

follow, we vacate McDowell’s sentence and remand to the district

court for resentencing.



                                            I.

      On August 6, 2010, federal agents stopped McDowell as he

was    driving     and     found    eighteen       bundles     of    heroin    in    his

possession,        while     searches       in     other     locations        uncovered

additional heroin and a .44 caliber revolver.

      A grand jury indicted McDowell for possession with intent

to distribute a quantity of heroin, in violation of 21 U.S.C.

§ 841(a)(1) (2006), and possession of a firearm by a felon, in

violation of 18 U.S.C. § 922(g)(1) (2006). McDowell pled guilty

to    both   counts.         In    the   presentence         investigation       report

(“PSR”),     the   probation       officer       recommended    that   the     district

court sentence McDowell as an armed career criminal based upon

his prior convictions.



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     The district court held McDowell’s sentencing hearing on

August 8, 2011. The PSR listed, among other convictions, a 1971

second-degree assault conviction from the Bronx County Supreme

Court in New York. According to the Government, the PSR relied

on a criminal record check to show the previous conviction. 1

McDowell objected to the use of this conviction to classify him

as an armed career criminal because a criminal record check is

insufficient   to    prove   the    prior     conviction,   and   because   the

criminal record check showed a conviction in the name “Michael

McDonald” rather than the name “Ernest James McDowell.”

     Relying    primarily      upon     information     gleaned      from   the

criminal record check, the district court overruled McDowell’s

objection and sentenced him as an armed career criminal.



                                      II.

     Under the Armed Career Criminal Act (“ACCA”), a defendant

is an armed career criminal if he has at least three prior

convictions    for   violent       felonies    or   serious   drug    offenses

“committed on occasions different from one another.” 18 U.S.C. §


     1
       In its brief, the Government references a criminal record
check from New York, commonly referred to as a “rap sheet.”
However, during oral argument, the Government explained that
although the original New York records from the 1971 conviction
were no longer available, the PSR relied on a report produced by
the National Crime Information Center (“NCIC”) to show the
previous conviction.


                                       4
924(e)(1) (2006); U.S.S.G. § 4B1.4(a) (2011).                  The Government

bears the burden of proving an ACCA predicate conviction by a

preponderance of the evidence.              United States v. Harcum, 587

F.3d 219, 222 (4th Cir. 2009).            The parties do not dispute that

the underlying convictions at issue, the 1971 conviction for

second-degree    assault,     the    1986    conviction      for    common      law

robbery, and the 1986 conviction for robbery with a dangerous

weapon,   constitute     predicate    convictions      under    ACCA.     See    18

U.S.C § 924(e)(2). The parties dispute whether the Government

sufficiently    proved   that    McDowell     was   convicted      in   1971    for

second-degree assault. We review the district court's factual

findings for clear error and its classification of McDowell as

an armed career criminal de novo. United States v. Farrior, 535

F.3d 210, 223 (4th Cir. 2008).

     McDowell   first    argues     that    the   district     court    erred   in

considering the criminal record check because it was not among

the “limited list” of documents referenced in Shepard v. United

States,   544    U.S.    13     (2005).     However,    McDowell        misstates

Shepard’s holding.       In Shepard, the Supreme Court held that a

sentencing court may not look beyond the charging document or

certain other limited documents to determine whether a prior

offense qualifies as a predicate conviction under ACCA. Shepard,

544 U.S. at 26. Shepard “did not address what documents can be

used to prove the fact of a prior conviction, but was concerned

                                      5
only    with     what    documents        can       be    used      to    prove       the   facts

underlying a conviction where the elements of the state crime do

not precisely mirror the federal definition.” United States v.

Zuniga-Chavez, 464 F.3d 1199, 1203 (10th Cir. 2006) (emphasis in

original); see also United States v. Carter, 591 F.3d 656, 661

(D.C. Cir. 2010); United States v. Sanders, 470 F.3d 616, 623-24

(6th Cir. 2006).         The issue in this case is whether McDowell had

a 1971 second-degree assault conviction, not whether the second-

degree assault conviction amounts to a “violent felony” under

ACCA. Shepard does not apply.

       McDowell       next   argues       that      the       district        court    erred   in

finding that McDowell was convicted in 1971 for second-degree

assault because its finding rested on unreliable information,

notably the criminal record check. Pursuant to the Guidelines,

“[i]n resolving any dispute concerning a factor important to the

sentencing       determination,           the       court      may       consider       relevant

information . . . provided that the information has sufficient

indicia     of    reliability        to        support        its     probable        accuracy.”

U.S.S.G. § 6A1.3(a) (2011); see also United States v. Scott, 343

Fed. App’x 930, 930-31 (4th Cir. 2009).

       Here, the criminal record check was never made part of the

record    before      the    district      court         or    part      of    the    record    on

appeal. Indeed, the Government conceded at oral argument that

there     was    no     “evidence”        in    the       record      that      McDowell       was

                                                6
convicted   for    second-degree   assault      in   1971,   only   argument

before the district court. Therefore, the district court erred

in determining the fact of McDowell’s 1971 conviction, and thus

in   classifying   McDowell   as   an   armed   career   criminal    and   so

sentencing him under ACCA.



                                   III.

      For the foregoing reasons, we vacate McDowell’s sentence

and remand to the district court for resentencing. 2

                                                      VACATED AND REMANDED




      2
       In an unpublished case, we have recognized that several
other courts have approved the use of NCIC reports to establish
prior convictions. See United States v. Scott, No. 08-4888, 2009
WL 2758074, at *1 (4th Cir. Sept. 2, 2009). Here, however,
neither the criminal record check nor the original judgment of
conviction was made part of the record. Thus, we do not address
McDowell’s argument that criminal record checks, such as the
NCIC report apparently used in this case, are unreliable for
purposes of proving the fact of an ACCA predicate conviction.


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