Fifth Circuit Determines Record Insufficient to Find Person to be Career Offender: Rudolph, No. 21-30739

Rudolph is Convicted and Enhanced as a Career Offender even though there is a lack of Clarity

Rudolph pled guilty to conspiracy to distribute powder and rock cocaine. The probation officer determined him to be a career offender. This raised his offense level and sentencing guideline range greatly. Rudolph objected to his designation.

“On July 15, 1996, Rudolph was convicted for possession with the intent to distribute cocaine, his first drug offense. He was sentenced to five years of imprisonment and released to parole supervision on September 12, 2000. On August 16, 2004, Rudolph was convicted on charges related to cocaine distribution, his second drug offense.

According to the probation officer, Rudolph’s parole for the 1996 drug offense was revoked on August 19, 2004. The probation officer cited “court records” to support her claim. Rudolph denied the probation officer’s claim that his parole on the 1996 conviction was revoked.”

Rudolph argued that the 1996 conviction would have expired 5 years after his arrest on March 8, 2001, or five years after his conviction on July 15, 2001, both of which are fifteen years before the commencement of this offense. The Government asked the court to defer to the PSR “because this case is not different from other cases where the Government relies on ‘court documents[,] certified copies of convictions,’ and ‘information from numerous sources’ to determine if a defendant is a career offender. decrease from 37 to 36.  Rudolph disagreed, indicating also that his other objections would come into play if the court granted this objection.

The district court acknowledged the lack of evidence and called it peculiar but determined the PSR was accurate and that the parole was revoked in 2004, fifteen years within the commencement of this offense.

How PSR objections work and the standard on review:

The court noted that “if the Government is the proponent of the career-offender enhancement, it has the burden of proving by a preponderance of the evidence that the enhancement is warranted.”

“The district court may adopt the facts contained in a [PSR] without further inquiry if two factors are met.  First, ‘those facts [must] have an adequate evidentiary basis with sufficient indica of reliability.’  Second, ‘the defendant does not present rebuttal evidence or otherwise demonstrate that the information in the PSR is unreliable.’ Id. (quotations and citation omitted). Importantly, ‘mere inclusion in the PSR does not convert facts lacking an adequate evidentiary basis with sufficient indica of reliability into facts a district court may rely upon at sentencing’… And though ‘mere objections’ by the defendant are generally insufficient to serve as rebuttable evidence that the information in the PSR is unreliable, ‘such objections may sufficiently alert the district court to questions regarding the reliability of the evidentiary basis for the facts contained in the PSR.’”

Further, to make a career offender designation, the Government must show that the defendant’s two prior felony convictions were “imposed within fifteen years of the defendant’s commencement of the instant offense.”

Finally, the court stated that ‘a revocation of parole on a prior conviction, however, impacts whether the prior conviction is considered “imposed within fifteen years.’ 4A1.2(e)(1). For instance, if the revocation of parole led to the defendant being incarcerated within fifteen years of the instant offense, a conviction that is otherwise older than fifteen years of the instant offense is counted for the career offender designation. 4A1.2(k)(2).

Court:  The Government Did not Prove their Enhancements

The court indicated that the government did not prove that his 1996 conviction qualified for a career offender enhancement. The court indicated that there was not an adequate evidentiary basis because no records were presented to the district court in support of their assertion (Rudolph objected to the claim that his parole was revoked in 2004, which “sufficiently alert[ed] the district court to questions regarding the reliability of the evidentiary basis for the facts contained in the PSR.”

The government asked to supplement the record on appeal with evidence to support the 1996 conviction’s status as a career offender predicate. While the court granted that request, the document that was submitted does not answer “(1) whether any of his terms of incarceration were for the 1996 conviction; (2) whether he was released to parole in 2000, specifically, for the 1996 conviction; or (3) whether his parole was revoked for the 1996 conviction following his release in 2000.”

Based on that the Fifth Circuit Vacated and remanded the case back to the district court for further consideration. 21-30739