May I please the court. My name is Josh Howard and I represent Sherwin Archie in this appeal. Mr. Archie asked that you vacate the sentence imposed by the district court and remain that matter for resenancing for two different and firmities first to remain it for resenancing without the application of an armed career criminal act enhancement as well as without the enhancement for brandishing under Title 18 section 924C that was not charged in his indictment and violates the Supreme Court's recent opinion in a lane. If I may start your honors with our argument to vacate the finding that he was an armed career criminal. We argue that because the government did not carry its burden to prove a third predicate conviction by a preponderance of the evidence and it was clear error for the lower court to decide it on the documents that it used. As you will see in the record there is a mishmash of several old documents from the 70s in New York State none of which were actually judgments and the probation office which carried the burden here well the government has the burden to prove it by preponderance of evidence but the probation office which really did the laboring work here to try to establish that criminal history noted and admitted in the process that the documents they had were flawed and were from disorganized sources. The record reflects a quote more specifically or more accurately than I can relay here but it says effectively due to only to the age of the offense and the disorganization of the New York archives are we unable to nail down the exact date of conviction. The exact date of conviction was a very specific issue in this case and ultimately it led the district judge to a dilemma where he could not name that date of conviction but only give a rough year that he felt was relevant and as I will argue in a moment we believe the law requires more than that. You are on a part of the things the district court relied upon were never made a record not by the prosecution who didn't respond to the pre-sentence report objections and writing who didn't respond to our sentencing brief which had many of these exhibits that are now before you in writing and that frustrates review by this panel similarly the probation office who again carried the laboring or here failed to make a record of what they were offering to the court and they also never shared that with the defense in advance
. The transcript is clear that for the first time we saw whatever they are offering to the court in the courtroom itself due to some eastern district of North Carolina policy in practice. That advanced review and critique and opportunity to review the documents is critical because these are almost 40 years old and in that transition from what was almost certainly a carbon copy era to the to the modern electronic age you're dealing with data entry that begs not just for the governor's era but error but wholesale mistakes. Our sentencing brief and transcript walk through the contradictions in the record and in the criminal history that was before the district court. There are more than just the dates of conviction but I would like to highlight those for you here. There was one administrative document a computerized New York agency document that listed Mr. Archie has received whatever that means. By their agency on July 11 of 1977 there was a judicial type document from the New York Supreme Court called a certificate of disposition. Now it was created in 2011 and mostly handwritten but it said he was convicted in June on June 9 of 1977. Later on part of the documents that were before the district court included an ATF report of investigation which was apparently drawn from an NCIC a federally maintained database
. That gave yet another date of conviction which was June 18 of 1978. Holy a year different than that certificate of disposition from the from the New York State Supreme Court. Always for the same offense though right. No ma'am in the third degree robbery. Well yes ma'am they always reflect third degree robbery but these different papers also have asymmetries as to the other offenses with which he was charged. And I think those are significant as well because what we're seeing here is that there are definitely this is almost an archaeological effort as much as a fact finding effort and there are bones here. Some of us were practicing law there so you at that time you might not want to be quite that blunt. Well as to Mr. Archie your honor there are bones here of prior convictions but it's unclear which dinosaur they belong to
. And there may have been. There are a lot of weight care accidents. There are a lot of things that appear as not helping. There may have been more than one and here we also would point out that there certainly is case law that allows the district court to rely on. And so I see a FBI federally maintained database that enforcement very understandably needs to rely upon that in their day to day work but where it's drawn into question. Standard of review after Washington. We're looking at what a district court has looked at. What's our standard of review is after it's passed on. Yes sir as to this aspect of our argument just the ACC arm career criminal act finding we believe that's a clear error
. And we believe that's present here because while the NCIC database has some indecent of reliability the probation office here specifically criticized the New York state database it's hardly is on par with NCIC. A sister circuit the DC circuit and the price case rejected a predicate conviction with a similar non judicial documentation system especially where that probation office offered no indication of their reliability. Here it's even worse they've called it disorganized and the for could has expressed similar pause in the Bryant case. It's our position your honors that these administrative documents simply don't suffice to send into an extra five year. Manitory minimum that that 15 year. Manitory minimum when there's such a mess as I said in the district court there's a they certainly have a quantum of evidence that there was a prior conviction they may even have a modicum of evidence that there was a prior conviction. But it's not a preponderance of the evidence and that lack of evidence which is what caused the district courts a half to levy and an early an estimate of what he felt in his gut was was Mr. Archie's third prior conviction and as you go through the transcript you'll see that he said I feel that the offense was committed in 1976 and that he played guilty in 77 and there was a fiction in 1978. That date is it's hardly even a date it's really just a year and it's not supported by a record evidence I don't see in the record of 1978 a piece of paper to support that fight which we believe amounts to clear error and in the Thompson case I thought the ATF report referred to 78 is the conviction date
. The ATF report is depending upon some other document that's not in the record and that the F report also it appears to draw from NCIC which is not in this record that also drew another case number from NCIC which New York State wrote back and said you got the wrong guy. So now we have a good reason to believe NCIC here as to this defendant has problems. In the Thompson case this court also provided that a conviction cannot be reduced to nothing more than the defendant was at some prior time convicted of some crime and you further explain that the nucleus of the conviction also contains other operative facts such as the date of conviction. We don't have that in this ruling and we certainly don't have record evidence to support the lower court's decision. Pin pointing an armed career criminal act predicate offense deserves more than what we had here it deserves more evidence than what we had here and we would ask the court to vacate that ACCA finding and allow the district court to fashion a sentence within the traditional penalty of zero to 10 range. Can you help me a little bit in terms of as you well can see that the standard is proponents of evidence in terms of finding. So and with the problems you you clearly indicate and I think well taken with this some information and not being very exact and some problems how do you deal with that. We. Problem perhaps law evident against back against what what's what's the evidence on the counterweight to that
. That these convictions do not exist because we're talking about balancing so what what is it balance with here all by this no duty to. You know put things to think forward anything to balance it this didn't happen these aren't correct. Well you're on our we believe it's it's the confusion in the records Mister Archie stipulated to the first. I granted the flaw in the evidence presented but I'm still asked you about what weight do we count a balance that we're in terms of upon. Here because there are no consistent dates appearing in the record. I don't think the government can possibly find a preponderance because what you really have is two to three to four different dates that all contradict each other and their burden is a preponderance and they failed it as to that third predicate. So you say this is so. Actually unreliable that it doesn't constitute real. Correct John I would suggest that reminding simply to reconsider for that the things aren't that aren't in the record here is certainly available to you but you can go ahead and say given the facts here that no one can reasonably reach a preponderance standard here that it's clear error to do that where there's three or four inconsistent dates that none of which match each other
. If if I might your honor move on to respond to the government's argument as to the Elaine issue you see he was sentenced for brandishing and while this case was on direct appeal the Elaine decision came out Mister Mister Archie was not charged with brandishing the indictment doesn't contain brandishing the plea agreement which goes through the elements Syria Adam doesn't mention brandishing as an element and the district court here astutely even asked the prosecutor on the record in the plea hearing transcribed. Do you have to charge brandishing to send us some for brandishing and she citing the law as it was at the time what about the appeal waiver why doesn't it cover this your honor our position about that is because it's beyond the scope of what he pled to you see what he pled to the base 924 C which does not include brandishing this court. I'm sorry the lower court could not then under Elaine sent it's him for the the seven year offense he has a waiver as to what he pled to which was base five year in 24 C using carry but not as to brandishing the the scope of the waiver is informed by the count of conviction and here that count is the base 924 C we can't have a valid. Yeah but what about the language of the waiver was so sweeping though that's what bothers me it says he waves the right to further excuse me further to wave all rights to contest the conviction or sentence. We believe there's ample it certainly is your honor but we believe there's ample precedent from this court that gives us the opportunity to pursue this appeal it comes from both Marin as well as a tar and brought in Jones and Marin at the very clear that a defendant can't wave in a legal sentence and no matter what that language said. And there's an exception for ineffective assistance to counsel prosecutorial misconduct not known to the defendant and but other than that it's sort of the kitchen sink. I think Marin and and a tar and brought in Jones all make very clear that what regardless of the text of that waiver the law allows you all to liberate this man from an legal sentence and all those cases basically stand for the principle that the sentence that was given was illegal at the time it was imposed and that's not the case here. We have a site in our briefs your honor that explains that the district courts obligated to apply the law at the time that it had the matter but that once it's before you you have the power to correct it to the law of today when there's an intervening change in law. And we believe that both in a tar which was another Eastern district six amendment problem as this is a different species of six amendment problem under Elaine and then brought in Jones which didn't even rise to constitutional magnitude
. That was simply revisiting a sentence despite an appellate waiver because of a restitution order that was illegal here we've got a six amendment jury trial violation and a lane violation of much greater gravity your power is immense in this field to order a remand back to the district court to revisit that sentence that aspect of Mr. Archie sentence. Unless there are further questions from the panel I'd like to reserve the remainder of my time for a bottle. Thank you Mr. I miss watch for McKinney. May I please the court I am if on watch for McKinney appearing for the United States. And certainly you want to with respect to the issue of whether or not the government proved that third predisposition by proponderous of the evidence we believe that the documents do show. That the defendant was convicted of that armed robbery offense in New York and the documents that were placed in evidence by the defendant is a matter of fact I'm support that even without additional documents. You have the government has not argued that the waiver
. I'm just asking the question that I was curious about the government didn't include waiver is a bar on the second issue. Oh no you're on and not on the second issue I don't believe that there's an instance where an ACCA challenge has been disposed of by waiver and I don't think I offer supports that I can't thank for seeing instance where we support waiver in the circumstance. I'm happy to hear that. If I can continue concerning these exhibits all of these exhibits are in the defendant's name. The chairman Archie. The exhibits exhibit B for instance the certificate of disposition although handwritten does indicate that this defendant was charged with a number of robberies which the PSR picked up in paragraph 16 but that he pled to robbery in a third degree. Now it's indicated in this exhibit that he was convicted and sentenced on the same day June 1977 but I would suggest the court that that's the scriveness era and this person in this court for considering such things as scrivener errors and discrepancies even in the name of the drug that was charged in an indictment and indicated that those discrepancies don't have any evidence. So I'm going to go up and the conviction or the predicate conviction and that's because there are other indecent of reliability that support the probable accuracy of the other documents. Here we had an NCIC which named defendant which was reviewed by the case agent was reviewed by the court actually brought up to the court during the sensing hearing and that
. That document does indicate that the senate was convicted of the third degree robbery offense in New York says in 1978. All of the other documents that mentioned the year of conviction say 1978 only the certificate of disposition says 1977 and so I believe that to be a scriveness era. Concerning what we call exhibit D which is a document from the Supreme Court of the state of New York. That document indicates that of two cases that the case agent appropriation office asked for documents concerning this office said that one of those sets of documents was not even the defendant. In other words they double checked and they determined that in case number three six one one that seven six that is our defendant that is the same case number in the PSR it is the same case number that the agent found when he looked at the NCIC and determined the defendant was convicted of that predicate offense. This court has held many times over that computerized documents are reliable. Now council is indicated that the probation office said that the New York documents were sloppy or disorganized yet at the sensing hearing the probation office is stood by the accuracy of those documents New York uses those documents all the time. In the McDowell case that this court court recently decided I believe in March of this year. McDowell case this court acknowledged the reliability of the NCIC and so I believe in this case we have enough documents that support fire for ponderance of evidence this defendant's conviction of the robbery offense in New York. Judge Boyle look at the documents he took a brief recess to go back and look at the documents and I quote in more detail and when he came back into the courtroom he found that these documents do support the defendant's conviction by a propondence of the evidence. So I believe that based on what the court reviewed and the documents that are in the record that the government has sustained this burden of showing the defendant was convicted of that third degree robbery and thus he was an ACCA designated defendant by a preponderance of the evidence. Now concerning the the first issue in the defendant's brief and that's the lean waiver we believe that the defendant did waive his right to appeal his conviction and sentence on that 924 C. And there's no ambiguity in the language of the plea agreement. There was no ambiguity during the court's colloquy with the defendant as he arranged him on that charge. The defendant never said I didn't understand it. He never said I didn't understand the waiver. And he said that there was a misunderstanding or misapprehension about what was being waived and he said as just keen and pointed out that he waived any issues that relate to the establishment of the of the advisory guideline range. And he waived his right to contest the conviction or sentence in any post conviction proceeding
. Judge Boyle look at the documents he took a brief recess to go back and look at the documents and I quote in more detail and when he came back into the courtroom he found that these documents do support the defendant's conviction by a propondence of the evidence. So I believe that based on what the court reviewed and the documents that are in the record that the government has sustained this burden of showing the defendant was convicted of that third degree robbery and thus he was an ACCA designated defendant by a preponderance of the evidence. Now concerning the the first issue in the defendant's brief and that's the lean waiver we believe that the defendant did waive his right to appeal his conviction and sentence on that 924 C. And there's no ambiguity in the language of the plea agreement. There was no ambiguity during the court's colloquy with the defendant as he arranged him on that charge. The defendant never said I didn't understand it. He never said I didn't understand the waiver. And he said that there was a misunderstanding or misapprehension about what was being waived and he said as just keen and pointed out that he waived any issues that relate to the establishment of the of the advisory guideline range. And he waived his right to contest the conviction or sentence in any post conviction proceeding. So we believe based on that based on his own history. This is a man who 25 times before had pled guilty. So he's not unfamiliar with the criminal history of the criminal justice procedure. And there's nothing in the call of a to show otherwise. So I would indicate the court that he did waive that his waiver was knowing that it was voluntary and that the issue is within the scope of the waiver. And for those reasons we asked the court to affirm this conviction and sentence in this case. Oh, yes, yes, you are. This court has held and I don't quote this that although the law changed after the defendant pled guilty his expectations as reflected in the pre agreement did not. And that's a quote from the United States versus Copen which decided in the government's brief
. So we believe based on that based on his own history. This is a man who 25 times before had pled guilty. So he's not unfamiliar with the criminal history of the criminal justice procedure. And there's nothing in the call of a to show otherwise. So I would indicate the court that he did waive that his waiver was knowing that it was voluntary and that the issue is within the scope of the waiver. And for those reasons we asked the court to affirm this conviction and sentence in this case. Oh, yes, yes, you are. This court has held and I don't quote this that although the law changed after the defendant pled guilty his expectations as reflected in the pre agreement did not. And that's a quote from the United States versus Copen which decided in the government's brief. Copen also said that the defendant got the benefit of his bargain. He bargained for waiver and that's what he got. Are you arguing waiver still beg your pardon? Yes, I said assume that we would find against you on that address the merits of the lean claim in those those that's. Well, address that argument. The marriage of it. Well, the brandishing issue. Yes, his argument is the brandishing but he. Assume that you lose on waiver. I'm not trying to confuse you
. Copen also said that the defendant got the benefit of his bargain. He bargained for waiver and that's what he got. Are you arguing waiver still beg your pardon? Yes, I said assume that we would find against you on that address the merits of the lean claim in those those that's. Well, address that argument. The marriage of it. Well, the brandishing issue. Yes, his argument is the brandishing but he. Assume that you lose on waiver. I'm not trying to confuse you. No, I understand you want to. But the law holds that that is a penalty provision that does not have to be charged in the indictment that's Almond the rest torres. And the Supreme Court's decision in the lead has done nothing to disturb that holding. And so I believe that that holding does still survive a lead. And because of that, how does it survive a lean note to fact that increases the mandatory minimum sentence that may be imposed. Well, the court is not. That is that is true. It doesn't. Yes, it does increase the mandatory minimum
. No, I understand you want to. But the law holds that that is a penalty provision that does not have to be charged in the indictment that's Almond the rest torres. And the Supreme Court's decision in the lead has done nothing to disturb that holding. And so I believe that that holding does still survive a lead. And because of that, how does it survive a lean note to fact that increases the mandatory minimum sentence that may be imposed. Well, the court is not. That is that is true. It doesn't. Yes, it does increase the mandatory minimum. It absolutely does. And it would be it would be error. Except for the way for argument. You can see the air. I can see. Yes, I do. I can see the era. Except for the waiver. I think that's why we wrote our brief that the way we did
. It absolutely does. And it would be it would be error. Except for the way for argument. You can see the air. I can see. Yes, I do. I can see the era. Except for the waiver. I think that's why we wrote our brief that the way we did. And I think that's why we wrote our brief that the way we did. Where have you had the. No further questions. Thank you, you're on again. I would ask the court to affirm the district court. I would like to offer a few additional points in response. I worked with Mrs. McKinney for many years as a colleague and agree with her that it is the office policy in the eastern district not to enforce the waiver. I think that's why we wrote our brief that the way we did
. And I think that's why we wrote our brief that the way we did. Where have you had the. No further questions. Thank you, you're on again. I would ask the court to affirm the district court. I would like to offer a few additional points in response. I worked with Mrs. McKinney for many years as a colleague and agree with her that it is the office policy in the eastern district not to enforce the waiver. I think that's why we wrote our brief that the way we did. The way we did it was to make sure that the court was not to enforce the waiver as to the ACC issue. So that here is confined to the to the Elaine issue. On just two or three other points. The government has argued that the in the NCIC was reviewed by the agent and the court in making this determination about whether or not Mr. Archie had that third conviction. They may have, but that's not in the record. And it's not here to be used in support of a finding that he had that conviction. The McDowell case did come before this panel. It came before this court twice the first time where they reviewed the reliability of the NCIC system was an unpublished decision
. The way we did it was to make sure that the court was not to enforce the waiver as to the ACC issue. So that here is confined to the to the Elaine issue. On just two or three other points. The government has argued that the in the NCIC was reviewed by the agent and the court in making this determination about whether or not Mr. Archie had that third conviction. They may have, but that's not in the record. And it's not here to be used in support of a finding that he had that conviction. The McDowell case did come before this panel. It came before this court twice the first time where they reviewed the reliability of the NCIC system was an unpublished decision. But they went into great length to establish all the different points of influence and content in that federally maintained FBI maintained database. There's no similar record here of this New York system. We can't offer that New York system, especially where this probation office has already called it on the record disorganized the same reliability as NCIC. And to other points, while the district court did review and find that Mr. Archie had a third conviction, he couldn't give the specific date of it. And we believe that violates the Thompson decision of this circuit. Finally, I would humbly point out that if the government is arguing that Scrivener's heir is to play here. Mr. Archie would suggest that to enhance someone to the mandatory minimum provisions of the Arm Cree or Criminal Act, it depends on more than perspective Scrivener's heir to take away his liberty for all those additional years
. But they went into great length to establish all the different points of influence and content in that federally maintained FBI maintained database. There's no similar record here of this New York system. We can't offer that New York system, especially where this probation office has already called it on the record disorganized the same reliability as NCIC. And to other points, while the district court did review and find that Mr. Archie had a third conviction, he couldn't give the specific date of it. And we believe that violates the Thompson decision of this circuit. Finally, I would humbly point out that if the government is arguing that Scrivener's heir is to play here. Mr. Archie would suggest that to enhance someone to the mandatory minimum provisions of the Arm Cree or Criminal Act, it depends on more than perspective Scrivener's heir to take away his liberty for all those additional years. For those reasons, Your Honors, we would ask that you vacate the sentence of the district court and remand it for resettance. And you have nothing else to say about why we should not pull you to your waiver. Well, as to the waiver, Your Honor, we believe it was an illegal sentence and that Marin and its progeny make very clear that this court cannot and should not enforce an illegal sentence where you can offer him this remedy. And this remedy is clearly called out for where the facts allow, or I'm sorry, where the facts show that the government doesn't contest. There's an Elaine violation here. And you're on direct appeal. We were on direct appeal when that came down. Yes, sir. Thank you
. Thank you so much. We will ask th