UNITED STATES OF AMERICA, Plaintiff—Appellee, versus GENE RUDOLPH, Defendant—Appellant.
No. 21-30739
United States Court of Appeals for the Fifth Circuit
May 30, 2024
Before RICHMAN, Chief Judge, and GRAVES and WILSON, Circuit Judges.
Appeal from the United States District Court for the Eastern District of Louisiana, USDC No. 2:19-CR-87-1
When the Government fails to prove by a preponderance of the evidence the facts necessary to support a sentencing enhancement, it has failed to meet its burden. And when the district court adopts “facts” in a Pre-Sentence Report that lack an adequate evidentiary basis with sufficient indicia of reliability, it has committed clear error. The application of the career offender enhancement to Gene Rudolph‘s conviction was error. Therefore, we VACATE Rudolph‘s sentence and REMAND for resentencing.
On July 7, 2021, Gene Rudolph pleaded guilty to conspiracy to distribute five kilograms or more of cocaine hydrochloride and 280 grams of cocaine base in violation of
Rudolph has been convicted of several crimes. On May 18, 1992, Rudolph pleaded guilty to manslaughter; he was released to parole supervision on May 26, 1995. On March 8, 1996, Rudolph was arrested for possession with the intent to distribute cocaine. 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According to the probation officer, Rudolph‘s parole for the 1996 drug offense was revoked on August 19, 2004.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 revоked. Rudolph did not provide
Rudolph conceded thаt the second drug offense qualifies as a predicate offense for the purposes of the career offender designation, but he argued that he should not have received criminal history points for the 1996 conviction, the first drug offense. Rudolph contended that the career offender guideline requires that predicate prior convictions are not too stale—“the convictions had to have occurred, or some part of the sentence served within fifteen years of the commencement of the instant offense.” Rudolph argued that the full-term sentence for the 1996 conviction would have expired five years after his arrest on March 8, 2001, or five years after his conviction on July 15, 2001. Both dates are more than fifteen years before the commencement of the instant 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. The Government added further that if the probation officer did not use the 1996 drug offense to reach its career offender determination, Rudolрh‘s base offense level would only decrease from 37 to 36.
Rudolph disagrees, arguing that absent the district court‘s consideration of the 1996 state drug offense, his offense level would be 33 at most with an advisory guideline range of 168-210 months of incarceration—eight years lower than the career offender range. Additionally, Rudоlph argues that absent the career offender designation, his other objections would not have been immaterial, which could have reduced his offense level further.
STANDARD OF REVIEW
A district court‘s interpretation and application of sentencing guidelines are reviewed de novo. United States v. Johnston, 559 F.3d 292, 294 (5th Cir. 2009). The district court‘s factual findings are reviewed for clear error. United States v. Goetz, 153 F. App‘x 918, 920-21 (5th Cir. 2005) (per curiam). The clear error standard of review precludes reversal of a district court‘s findings unless this court is left with the definite and firm conviction that a mistake has been made. Rodriguez v. Bexar County, 385 F.3d 853, 860 (5th Cir. 2004).
DISCUSSION
Under the guidelines, “[a] defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). On appeal, Rudolph argues that he fails to meet (2) and (3) of the guidelines’ requirements and, therefore, the district court‘s error warrants reversal of the career offender designation.
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. See United States v. Richardson, 781 F.3d 237, 249 (5th Cir. 2015); see also United States v. Alfaro, 919 F.2d 962, 965 (5th Cir. 1990). “Generally, a PSR bears sufficient indicia of reliability to permit the sentencing court to rely on it at sentencing.” United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995). “The district court may adopt the facts contained in a [PSR] without further inquiry” if two factors are met. See United States v. Trujillo, 502 F.3d 353, 357 (5th Cir 2007) (quotations and citation omitted). First, “those facts [must] have an adequate evidentiary bаsis with sufficient indica of reliability.” Id. at 357. (quotations and citation omitted). 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 еvidentiary basis with sufficient indica of reliability into facts a district court may rely upon at sentencing.” United States v. Melendez, 57 F.4th 505, 509 (5th Cir. 2023). 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.” See United States v. Harris, 702 F.3d 226, 231 n.3 (5th Cir. 2012).
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.” U.S.S.G. § 4A1.2(e)(1). A revocation of parole on a prior conviction, however, impacts whether the prior conviction is considered “imposed
The district court applied the career offender enhancement by relying upon and adopting the PSR‘s fact determination that Rudolph was on parole in 2004 for his 1996 drug conviction. The PSR provides that prior to sеrving his full five-year prison sentence on the 1996 conviction, Rudolph was released to parole on September 12, 2000. It provides further that his parole on the 1996 drug conviction was revoked on August 19, 2004. Notably, the PSR lists similar parole revocation information for Rudolph‘s 1992 manslaughter conviction. It reflects that Rudolph wаs released to parole on his 1992 manslaughter conviction on September 12, 2000, and that his parole for the 1992 manslaughter conviction was also revoked on August 19, 2004.
Rudolph objected to the claim that his parole was revoked in 2004 for the 1996 drug conviction, but he did not present rebuttal evidence. Rudolph is not requirеd to present rebuttal evidence when the Government‘s evidence lacks an adequate evidentiary basis; his objection “sufficiently alert[ed] the district court to questions regarding the reliability of the evidentiary basis for the facts contained in the PSR.” Harris, 702 F.3d at 231 n.3. In fact, assuming that Rudolph was never revoked for the 1996 drug conviction, Rudоlph would be required him to prove a negative. In response to Rudolph‘s objection, the Government explained that its factual claim was sourced from “court records.” But no records were presented to the district court in support of that assertion.
The Government did not meet its burden to prove by a preponderance of evidence that the 1996 conviction qualified for the career offender enhancement. The “fact” that Rudolph was revoked in 2004 for his 1996
On appeal, the Government moved to supplement the record with evidence regarding Rudolph‘s 1996 conviction. This supplemental evidence was neither presented to nor considered by the district court. The Appellant contends that this court should disregard this evidence when deciding the merits of this appeal because it “violates this [c]ourt‘s rules” and “would deprive Mr. Rudolph of his right to test the reliability and accuracy” of the evidence.
This court does “not ordinarily enlarge the record on appeal to include material not before the district court.” United States v. Flores, 887 F.2d 543, 546 (5th Cir. 1989)(per curiam). Moreover, for decades this court has held that it must “decline to consider the merits of issues based on new evidence furnished for the first time on appeal.” Smith v. United States, 343 F.2d 539, 541 (5th Cir. 1965). Nevertheless, considering the probation officer‘s assеrtion that the revocation of Rudolph‘s parole for the 1996 conviction was supported by “court records,” we granted the Government‘s motion to supplement the record on appeal.
II.
Finally, Rudolph contends that the instant conspiracy conviction does not qualify as a “controlled substance offensе” as defined by U.S.S.G. § 4B1.2, thereby making § 4B1.1 inapplicable. The Government argues that Rudolph‘s offense does qualify as a “controlled substance offense” under United States v. Vargas, 74 F.4th 673 (5th Cir. 2023) (en banc). We agree with the Government.
However, in Vargas, this court held that the Sentencing Commission‘s commentary in § 4B1.2 cmt. n.1 was binding. 74 F.4th at 683-91. The en banc court reasoned that courts must defer to the guideline commеntaries unless there is a “flat inconsistency” between the guideline and the commentary. Vargas, 74 F.4th at 690. In other words, there must be an “irreconcilable variance between the two.” Id. at 684. And this court “[did] not find that kind of ‘flat inconsistency’ between the guideline definition of controlled substance offense and the commentary‘s view that the definitiоn includes conspiracies.” Id. at 690.
Based on the foregoing, we VACATE Rudolph‘s sentence аnd REMAND to the district court for resentencing upon review and consideration of any supplemental evidence.