United States Court of Appeals

For the First Circuit

No. 07-1834

UNITED STATES OF AMERICA,

Appellee,

v.

KATHERINE MCKENZIE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Torruella, Selya, and Howard,

Circuit Judges.

Gail M. Latouf, for appellant.

Margaret D. McGaughey, Appellate Chief, with whom Paula D.

Silsby, United States Attorney, was on brief for appellee.

August 21, 2008
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TORRUELLA, Circuit Judge. On December 1, 2006, Katherine

McKenzie pled guilty to distributing five or more grams of cocaine

base. The district court sentenced McKenzie to forty-two months'

imprisonment. McKenzie now appeals her sentence, claiming that the

district court incorrectly assigned two points to her Criminal

History Category ("CHC") score, thus rendering her ineligible for

safety-valve relief under 18 U.S.C. § 3553(f), and that it

improperly credited computerized docket reports showing her past

convictions. After careful consideration, we affirm.

I. Background

In April 2006, McKenzie and two others sold 8.7 grams of

crack cocaine to an undercover Drug Enforcement Administration

agent. McKenzie was arrested and charged with distributing five

grams or more of cocaine base and aiding and abetting such conduct,

in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The

statutory mandatory minimum for violations of § 841(a)(1) involving

more than five grams of crack is sixty months' imprisonment. 21

U.S.C. § 841(b)(1)(B). A sentence below sixty months can, however,

be imposed if the defendant satisfies various enumerated

requirements for safety-valve relief under 18 U.S.C. § 3553(f).

One such requirement is that the defendant's criminal history score

be zero or one, yielding a CHC of I.

McKenzie pled guilty as charged, and the district court

accepted the guilty plea. The district court adopted the
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recommended guidelines offense level of nineteen set forth in the

Probation Office's pre-sentence report ("PSR"). To arrive at that

offense level, the court began with a base level of twenty-six for

the charged offense, U.S.S.G. § 2D1.1(c)(7)(2006); reduced the

offense level by three for acceptance of responsibility, id.

§ 3E1.1(a)-(b); and further reduced the offense level by four to

reflect McKenzie's minimal role in the charged offense, id.

§ 3B1.2(a).

The PSR also recommended a CHC of II due to McKenzie's

prior Maine state convictions: (1) an October 2005 conviction of

misdemeanor assault for slapping a bar employee in the face; and

(2) a June 2006 conviction of misdemeanor theft for shoplifting

sleeping pills and baby diapers from a supermarket. The proof

proffered for these two convictions was the Maine state court

electronic docket record, which was attested to by a Maine court

official as authentic.

An offense level of nineteen combined with a CHC of II

yielded an advisory guideline sentencing range ("GSR") of thirtythree to forty-one months. The PSR recommended, however, that the

GSR be amended to sixty months, in accordance with the statutory

minimum for McKenzie's conviction under 21 U.S.C. § 841(b)(1)(B).

At sentencing, McKenzie objected to several aspects of

the PSR, including the calculation of her CHC and criminal history

score and her consequent lack of safety-valve eligibility.
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Specifically, McKenzie took issue with the use of electronic docket

records to prove her two prior Maine convictions. McKenzie also

focused particular attention on the shoplifting conviction and

argued that it should not have counted for criminal history

purposes. The Government maintained that a CHC of II was

appropriate, and that the shoplifting conviction had to factor into

McKenzie's criminal history score because in United States v.

Spaulding, 339 F.3d 20 (1st Cir. 2003), we held that the potential

for physical confrontation made it impossible to conclude that

shoplifting was "similar to" certain offenses excluded from CHC

calculations under U.S.S.G. § 4A1.2(c). Id. at 22.

The district court found the facts as set forth in the

PSR, ruled that the PSR properly calculated the two Maine

convictions, and accepted the computerized docket reports as

sufficient proof of the convictions. The court also held that it

was bound to count the shoplifting conviction in McKenzie's CHC

because of our holding in Spaulding. The court did, however, grant

the Government's motion under U.S.S.G. § 5K1.1 for substantial

assistance, which recommended that McKenzie receive a twelvepercent downward departure from the sixty-month statutory minimum.

The court went much further and gave McKenzie a thirty-percent

downward departure, resulting in a forty-two month sentence. The

court's reasons for this departure centered on McKenzie's tragic

childhood and vulnerable psychological condition, threats made to
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her in jail over the prospect that she might testify against

others, and the fact that she was pregnant and had a small child.

On appeal, McKenzie challenges her sentence on two

grounds. First, she argues that the district court applied an

incorrect test to evaluate whether her prior Maine shoplifting

conviction should have been considered for purposes of calculating

her CHC. Second, she argues that the district court erred in

accepting computerized docket reports as adequate proof of her

prior Maine state convictions. As we now explain, neither

challenge has merit.

II. Discussion

We review questions of law involved in sentencing

determinations de novo. United States v. Jones, 523 F.3d 31, 41

(1st Cir. 2008); United States v. Pho, 433 F.3d 53, 60-61 (1st Cir.

2006), abrogated on other grounds by Kimbrough v. United States,

128 S. Ct. 558, 574-75 (2007).

A. Prior Maine Shoplifting Conviction

Where a defendant is convicted of an offense involving

five or more grams of crack cocaine, she must be given a mandatory

minimum sentence of five years, even if her GSR is lower. 21

U.S.C. § 841(b)(1)(B); see also United States v. Rodríguez, 938

F.2d 319, 320 (1st Cir. 1991). Even where the mandatory minimum

applies, however, a sentencing court can apply a lower sentence

under the safety-valve provisions of 18 U.S.C. § 3553(f) if the
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defendant meets five enumerated criteria. Only one of those

criteria is at issue here: whether the district court properly

found McKenzie's CHC to be II. If so, she is ineligible for

safety-valve relief. See 18 U.S.C. § 3553(f)(1).

Section 4A1.2(c) of the Sentencing Guidelines governs the

types of prior convictions that may be considered for purposes of

calculating a defendant's criminal history score. All felony

offenses are counted. Misdemeanors are counted as well, with an

important exception crucial to McKenzie's appeal: if the prior

conviction is for one of a listed number of misdemeanor offenses,

or an offense "similar to" a listed offense, it is not counted as

long as the sentence served was not a term of probation of at least

one year, or a term of imprisonment of at least thirty days. Id.

§ 4A1.2(c)(1).

At sentencing, the district court determined that the PSR

properly factored McKenzie's June 2006 shoplifting into her CHC

score. The court agreed with the Government's argument that

Spaulding controlled the issue. McKenzie now urges us to reverse

Spaulding and remand her case to the district court, substituting

for the "similar to" standard a "common sense" approach. As the

basis for her request, McKenzie points to amendments to the

Sentencing Guidelines promulgated by the United States Sentencing

Commission ("Commission"), made effective on November 1, 2007.
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Particularly, McKenzie relies on the addition of Application Note

12(A) to the Guidelines commentary, which in pertinent part reads:

In determining whether an unlisted offense is

similar to an offense listed in [§ 4A1.2]

(c)(1) . . . , the court should use a common

sense approach that includes consideration of

relevant factors such as (i) a comparison of

punishments imposed for the listed and

unlisted offenses; (ii) the perceived

seriousness of the offense as indicated by the

level of punishment; (iii) the elements of the

offense; (iv) the level of culpability

involved; and (v) the degree to which the

commission of the offense indicates a

likelihood of recurring criminal conduct.

Id. § 4A1.2 n.12(A).

We reject McKenzie's call to depart from Spaulding. Our

cases are clear that three-judge panels are bound by prior panel

decisions absent extraordinary circumstances. See United States v.

Duval, 496 F.3d 64, 85 (1st Cir. 2007) (citing United States v.

Allen, 469 F.3d 11, 17 (1st Cir. 2006)); United States v. Allen,

469 F.3d 11, 17 (1st Cir. 2006) ("[W]e remain bound to prior panel

decisions 'in the absence of supervening authority sufficient to

warrant disregard of established precedent.'" (quoting United

States v. Wogan, 938 F.2d 1446, 1449 (1st Cir. 1991))).

The relevant facts in Spaulding are markedly similar to

those in this case. There, we rejected the defendant's claim that

his prior conviction for shoplifting approximately $21 worth of

goods should be excluded from his criminal history score because it

was "similar to" an insufficient funds check conviction, an offense
 With one exception, other circuits have agreed with this 1

reasoning. See United States v. Ubiera, 486 F.3d 71, 74-76 (2d

Cir. 2007) (citing, inter alia, Spaulding, 339 F.3d at 22); United

States v. Osborne, 514 F.3d 377, 391-92 (4th Cir. 2008); United

States v. Lamm, 392 F.3d 130, 132-34 (5th Cir. 2004); United States

v. Harris, 325 F.3d 865, 873 (7th Cir. 2003); United States v.

Gray, 126 F.3d 1109, 1110-11 (8th Cir. 1997); United States v.

Hooks, 65 F.3d 850, 854-56 (10th Cir. 1995); but see United States

v. López-Pastrana, 244 F.3d 1025, 1027-31 (9th Cir. 2001).

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listed in § 4A1.2(c)(1), and therefore exempt from being counted in

a defendant's CHC. Spaulding, 339 F.3d at 22. Doing so, we

explained:

[S]hoplifting poses a markedly greater risk to

the public. Passing a bad check poses little

risk of physical confrontation, because the

perpetrator is not present when the victim

realizes that he has been victimized.

Shoplifting, on the other hand, creates the

very real risk of physical confrontation

between the perpetrator and the victim. A

store employee or customer may confront the

perpetrator in an attempt to thwart the crime.

The risk of confrontation precludes a

conclusion that shoplifting is "similar to"

passing a bad check.

Id.1

McKenzie does not attempt to persuade us that the

circumstances surrounding her case can be significantly

distinguished from those we addressed in Spaulding. Instead, she

asks us to remand her case for consideration of the criminal

history applicability of her prior shoplifting conviction under the

recently established "common sense" standard. McKenzie, however,

does not present us with any meaningful basis to comply with her

request. The amendments to the Guidelines on which McKenzie
 Notably, McKenzie did not proffer an analysis of her prior 2

shoplifting conviction through the rubric of Application Note 12(A)

in an effort to show that any result other than that expounded in

Spaulding would be reached.

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anchors her claim were adopted after her sentencing in November

2007. We have no reason to believe that the Commission intended

the amendments to apply retroactively. See United States v.

Crudup, 375 F.3d 5, 8 (1st Cir. 2004); United States v. Havener,

905 F.2d 3, 5-7 (1st Cir. 1990). Moreover, McKenzie has provided

no basis for us to conclude that consideration of her prior

conviction under a "common sense" standard would yield a different

result. Pursuant to Spaulding, we conclude that the district 2

court properly included McKenzie's prior Maine shoplifting

conviction in its criminal history calculation and that she was

accordingly not entitled to a safety-valve downward adjustment.

B. Use of Computerized Docket Reports

At sentencing, the Government has the burden to

establish, by a preponderance of the evidence, the existence of a

prior conviction. See United States v. Díaz, 519 F.3d 56, 67 (1st

Cir. 2008). The Government may satisfy its burden by producing a

certified copy of the conviction or an equivalent proffer. United

States v. Unger, 915 F.2d 759, 761 (1st Cir. 1990); see also

Shepard v. United States, 544 U.S. 13, 26 (2005) (equivalent

proffer for criminal history purposes includes the charging
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document, a written plea agreement, a transcript, or another

official court document).

McKenzie challenges the district court's reliance on

attested copies of computerized docket entries as proof of her

prior Maine state convictions for shoplifting and misdemeanor

assault. She urges us to develop a higher standard of proof that

would render these docket reports unacceptable as proof of

conviction.

We find no reason to disturb the district court's

judgment on this issue. Over McKenzie's objections at sentencing,

the district court correctly noted that electronic docket records

are increasingly the norm in today's world. Moreover, McKenzie

did not attempt to show that the records were inaccurate and

conceded that they were properly authenticated. We have not

previously addressed the admissibility of attested copies of

computerized docket entries for criminal history sentencing

purposes but other courts have concluded that electronic docket

records can sufficiently establish a defendant's criminal history

by a preponderance of the evidence. See, e.g., United States v.

Cousin, 219 F. App'x. 190, 194 (3d Cir. 2007) (unpublished); United

States v. Zuñiga-Chávez, 376 F. Supp. 2d 1163, 1166 (D.N.M. 2004)

("If docket sheets are sufficient, it follows that a certified copy

of an abstract judgment is also sufficient to establish the

existence of a prior conviction by a preponderance of the
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evidence."). We endorse these cases and hold that attested copies

of electronic docket entries may be a sufficient proffer of prior

conviction for sentencing proceedings before a district court. We

therefore conclude that the court below properly admitted the Maine

state conviction documents and reject McKenzie's appeal.

III. Conclusion

For the reasons stated above, we affirm the district

court's sentence.

Affirmed.