United States v. White

COOK, J., delivered the opinion of the court, in which BOGGS, C.J., BATCHELDER, GILMAN, GIBBONS, ROGERS, SUTTON, McKEAGUE, and GRIFFIN, JJ., joined. MERRITT, J. (pp. *382386-97), delivered a separate dissenting-opinion, in which MARTIN, DAUGHTREY, MOORE, COLE, and CLAY, JJ., joined.

OPINION

This is a sentencing appeal. When a jury convicted Roger Clayton White of two counts, but acquitted him of others, the district court looked to conduct underlying the acquitted counts to enhance White’s offense level under the Sentencing Guidelines. White questions whether this practice withstands Sixth Amendment scrutiny, and we hold that it does so long as the resulting sentence does not exceed the jury-authorized United States Code máxi-mums.

I

White waited in a car armed with a 9mm rifle while his brother, Jeffrey, and Jeffrey’s girlfriend, Laurie Fischer, robbed a bank of more than $100,000, holding two bank tellers at gunpoint and firing a shot near one teller’s head. White drove the getaway car and led police on a lengthy high-speed chase that included shots fired from the car at pursuing officers. The chase ended only when White crashed into a roadblock. United States v. White, 184 Fed.Appx. 880, 882 (6th Cir.2005). A jury found White guilty of just two of six charges: armed robbery, which carried a maximum sentence of twenty-five years, 18 U.S.C. § 2113(d), and possessing a firearm with the serial number removed, with a five-year maximum, id. § 922(k).

Applying the Guidelines’ relevant-conduct principles in sentencing White, see U.S.S.G. § 1B1.3 (2002 ed.), the court determined that uncontested evidence of shots being fired in the bank and at pursuing officers warranted certain offense-level enhancements: seven levels for discharging a firearm during the robbery, id. § 2B3.1(b)(2), and three levels for assaulting a law enforcement officer during flight, id. § 3A1.2(b)(l). The court justified using acquitted conduct to enhance White’s sentence by saying, “[Wjhile [White] was acquitted of the conduct relating to the discharge of the firearm in the vault and then during the chase ... he aided and abetted that conduct, and it was reasonably foreseeable to him that ... in furtherance of the jointly undertaken criminal activity that guns would be not only brandished but discharged.”

When addressing the 18 U.S.C. § 3553(a) factors, the court also noted how the use of firearms in the bank and during flight “placed in jeopardy the lives of several innocent persons.” Far from “a garden variety bank robbery,” the court viewed White’s offense as “probably one of the most egregious bank robberies” it had ever seen, concluding that “the lives of the folks that were inside that bank have been forever changed by [White’s] and others’ conduct ... [and] anything less than [a 264-month sentence] would not promote respect for the law, [and would] minimize the trauma and pain and suffering by the victims.”

White appealed, contending that the district court improperly considered acquitted conduct. The panel reviewing his appeal, with some expressed misgivings, adhered to earlier precedent on the issue, see United States v. Mendez, 498 F.3d 423 (6th Cir.2007) (per curiam), while urging en banc consideration. Recognizing that the acquitted-conduct issue presents a “question of exceptional importance,” Fed.R.App. P. 35(a)(2), the full court agreed to reconsider the Mendez holding.1 United *383States v. White, 503 F.3d 487 (6th Cir. 2007), reh’g en banc granted, op. withdrawn, 503 F.3d 487 (6th Cir. Nov.30, 2007).

II

First, Mendez. A grand jury charged Victor Mendez with conspiracy to distribute 500 grams or more of a substance containing methamphetamine. 498 F.3d at 425. The jury foreman checked “yes” on the verdict form to indicate that the government proved beyond a reasonable doubt at least 50 grams, but checked “no” to indicate that the government failed to prove the offense involved at least 500 grams. Id. The Presentence Report (“PSR”) nevertheless relied on trial testimony to attribute 2.95 kilograms to Mendez, prompting his objection to a sentence grounded on a drug quantity not found beyond a reasonable doubt by the jury. Id. Concluding that the PSR accurately reflected facts proved by a preponderance of the evidence, the district court overruled the objection and sentenced Mendez to the low end of the applicable Guidelines range. See id. at 425 & n. 1. On appeal, a panel of this court rejected the defendant’s Sixth Amendment right-to-trial-by-jury challenge, sanctioning the district court’s use of acquitted conduct in calculating an advisory Guidelines range. Id. at 426-27 & n. 2. The Mendez panel reached this holding by relying on United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (per curiam), which the Supreme Court decided after Congress passed the Sentencing Reform Act (“SRA”).

Though Watts examined this issue from a double-jeopardy perspective, Watts regarded acquitted conduct as providing the sentencing court with “[hjighly relevant— if not essential ... information.” 519 U.S. at 151-52, 117 S.Ct. 633 (internal quotation marks omitted). Relying on the different standards of proof that govern at trial versus sentencing, the Court concluded “that a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.” Id. at 157, 117 S.Ct. 633.

Watts preceded United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), but the Booker majority, which held that the mandatory guideline system was unconstitutional, viewed the two decisions as not inconsistent. Id. at 240-41, 125 S.Ct. 738. This circuit likewise recognizes Watts’s continued vitality post-Booker, repeatedly holding “that sentencing courts may still find facts using the pre-ponderanee-of-the-evidence standard.” Mendez, 498 F.3d at 426-27 (citing, e.g., United States v. Gates, 461 F.3d 703, 708 (6th Cir.2006)); see also United States v. Brika, 487 F.3d 450, 458-60 (6th Cir.) (holding that Booker did not disturb Watts and that a post-Booker court may consider even acquitted conduct if it finds facts supporting that conduct by a preponderance of the evidence), cert. denied, — U.S.-, 128 S.Ct. 341, 169 L.Ed.2d 239 (2007).

Mendez accords with the view expressed by each of our sister circuits that Booker did not alter the Watts position on acquitted conduct: “Watts remains good law.” United States v. Magallanez, 408 F.3d 672, 684 n. 1 (10th Cir.2005); see, e.g., United States v. Faust, 456 F.3d 1342, 1348 (11th Cir.2006) (same); United States v. Hay*384ward, 177 Fed.Appx. 214, 215 (3d Cir.2006) (same); United States v. Ashworth, 139 Fed.Appx. 525, 527 (4th Cir.2005) (same). The “core principle of Watts lives on and [a] district court [may] constitutionally consider ... acquitted conduct.” United States v. Mercado, 474 F.3d 654, 657 (9th Cir.2007), cert. denied,, — U.S.-, 128 S.Ct. 1736, 170 L.Ed.2d 542 (2008); see also United States v. Settles, 530 F.3d 920, 923 (D.C.Cir.2008) (same); United States v. Horne, 474 F.3d 1004, 1006-07 (7th Cir.) (same), cert. denied, — U.S. -, 127 S.Ct. 2957, 168 L.Ed.2d 279 (2007); United States v. Farias, 469 F.3d 393, 399 (5th Cir.2006) (same); United States v. Gobbi, 471 F.3d 302, 313-14 (1st Cir.2006) (“Post-Booker, the law has not changed ...; acquitted conduct, if proved by a preponderance of the evidence, still may form the basis for a sentencing enhancement.”); United States v. Vaughn, 430 F.3d 518, 527 (2d Cir.2005) (“[DJistrict courts may find facts relevant to sentencing by a preponderance of the evidence, even where the jury acquitted the defendant of that conduct.... ”).

The dissent sees things differently. It concedes that Watts survived Booker and that Watts rejected (and continues to reject) a Fifth Amendment double-jeopardy challenge to the use of acquitted conduct at sentencing. But it insists that Watts is irrelevant here because White premises his argument not on the Fifth Amendment, but on the Sixth Amendment. In one sense, the dissent is correct. As Booker itself recognized, Watts’s rejection of a double-jeopardy challenge to the use of acquitted conduct at sentencing did not close the door on subsequent Sixth Amendment challenges to sentences based on judge-found facts. Booker, 543 U.S. at 240-41 & n. 4, 125 S.Ct. 738. Thus, although a court may properly look to facts underlying acquitted conduct in sentencing, the Sixth Amendment remains a backstop. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (“[A]ny fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”); see also Blakely v. Washington, 542 U.S. 296, 303-04, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (same).

The dissent also is correct in another sense. Had the district court in this case relied on acquitted conduct in determining the range under a mandatory guidelines regime, that sentence would have violated the Sixth Amendment as interpreted in Booker. For the same reason that Booker precluded district courts from finding sentencing facts that ratcheted up mandatory Guidelines ranges, it would have prevented district courts from doing the same thing with respect to findings related to acquitted conduct.

But these observations do not show that the Sixth Amendment prevents a district court from relying on acquitted conduct in applying an advisory guidelines system. In the post -Booker world, the relevant statutory ceiling is no longer the Guidelines range but the maximum penalty authorized by the United States Code. See United States v. Sexton, 512 F.3d 326, 330 (6th Cir.) (“Since defendants were sentenced under an advisory Guidelines scheme, the maximum statutory penalty that the district court could impose was determined by the statute of conviction, rather than by a Guidelines range calculated using only jury findings.”), cert. denied, - U.S. -, 129 S.Ct. 304, 172 L.Ed.2d 222, 2008 WL 3484875 (2008). This point too enjoys unanimity among the courts of appeals. See, e.g., Settles, 530 F.3d at 923 (“For Sixth Amendment purposes, the relevant upper sentencing limit established by the jury’s finding of guilt is *385thus the statutory maximum, not the advisory Guidelines maximum.... ”); United States v. Grier, 475 F.3d 556, 566 (3d Cir.2007) (en banc) (same), cert. denied, — U.S. -, 128 S.Ct. 106, 169 L.Ed.2d 77 (2007); United States v. Jiminez, 498 F.3d 82, 87 (1st Cir.2007) (same); United States v. Green, 162 Fed.Appx. 283, 284 (5th Cir.2006) (per curiam) (same); United States v. Crosby, 397 F.3d 103, 109 n. 6 (2d Cir.2005) (same), abrogated on other grounds as recognized in United States v. Lake, 419 F.3d 111, 113 n. 2 (2d Cir.2005); United States v. Duncan, 400 F.3d 1297, 1303 (11th Cir.2005) (same); United States v. Smith, 413 F.3d 778, 781 (8th Cir.2005) (same). So long as the defendant receives a sentence at or below the statutory ceiling set by the jury’s verdict, the district court does not abridge the defendant’s right to a jury trial by looking to other facts, including acquitted conduct, when selecting a sentence within that statutory range.

Neither White nor the dissent offers any explanation why sentences based on acquitted conduct differ for Sixth Amendment purposes from any other sentence driven by judge-found facts but falling within the statutorily defined sentencing range. And they offer no explanation why that claim makes sense post-Booker. By freeing a district court to impose a non-guidelines sentence, Booker pulled out the thread that holds White’s Sixth Amendment claim together.

The dissent also errs in saying that defendant is being sentenced to additional years “for three crimes the jury in its verdict said he did not commit.” The jury verdict says no such thing. It says something very different — that the conduct had not been proved beyond a reasonable doubt. Lawyers have long recognized the distinction between proof beyond a reasonable doubt — the standard for criminal conviction — and proof by a preponderance of the evidence — the standard for civil trials. Laypersons have become familiar with the distinction from the pair of O.J. Simpson trials, in which one jury found the crime not proved beyond a reasonable doubt, but another jury found civil liability by a preponderance of the evidence.

White thus is not being “sentenced for acquitted conduct” when White’s sentencing judge takes that conduct into account in determining a sentence for the crime of which the White was convicted, as long as the sentence imposed falls within the range prescribed by law for that convicted conduct. Taking acquitted conduct into account unquestionably was permitted before the Guidelines were instituted, when a judge could sentence anywhere up to the maximum for convicted conduct, for any number of unstated reasons, including presumably a mere suspicion that the defendant also committed what the jury was not convinced of beyond a reasonable doubt. Taking acquitted conduct into account was not barred during the regime of mandatory Guidelines. See Watts, 519 U.S. at 151— 52, 117 S.Ct. 633. Now that the Guidelines are advisory — a regime that floats between the previous two regimes — it seems particularly unusual to say that taking acquitted conduct into account all of a sudden is not permitted. It is permitted for the limited purpose of determining the sentence for convicted conduct, which must be shown by a preponderance of the evidence.

Nor does the dissent’s reliance on the Canania decision advance its position. When a layperson such as Juror # 6 in the Canania case expresses frustration that the court system does not seem to respect the juror’s contribution, the best response is not to confirm the misunderstanding; it is to explain that indeed the juror’s contribution is being faithfully acted upon, that under our system judges have the power *386within a statutory range to determine the punishment for the crime that the juror did find beyond a reasonable doubt, and that the judge may take into account facts about the defendant that the judge determines to be more probable than not, even though the jurors could not find those facts beyond a reasonable doubt. That difference is a cornerstone of criminal procedure, and it is the distinction that has been embedded in our common law legal tradition for hundreds of years.

We granted en bane review to decide whether the district court’s consideration of acquitted conduct in sentencing passes constitutional muster. Our sister circuits agree that it does, insofar as enhancements based on acquitted conduct do not increase a sentence beyond the maximum penalty provided by the United States Code. We follow suit, and in doing so affirm Mendez as the law of this circuit.

Ill

District of Columbia Circuit Judge Ka-vanaugh in the Settles case acknowledged that defendants understandably perceive unfairness when sentencing courts rely on acquitted conduct. 530 F.3d at 923-24. The Settles court observed that “Congress or the Sentencing Commission certainly could conclude as a policy matter that sentencing courts may not rely on acquitted conduct. But under binding precedent, the Constitution does not prohibit a sentencing court from relying on acquitted conduct.” Id. at 924.

To say that district court judges may enhance a defendant’s sentence based on acquitted conduct, however, is not to say that they must do so. First, and most obviously, a factual presentation that fails to persuade a jury beyond a reasonable doubt may well fail to persuade a judge by a preponderance of the evidence. Second, one of the central points of Booker, highlighted by Kimbrough v. United States, - U.S. -, 128 S.Ct. 558, 564, 169 L.Ed.2d 481 (2007), is that a district court judge may disagree with the application of the Guidelines to a particular defendant because the Guidelines range is too high or too low to accomplish the purposes set forth in § 3553(a). If the district court judge concludes that the sentence produced in part by these “relevant conduct” enhancements “fails properly to reflect § 3553(a) considerations,” Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007), the judge may impose a lower sentence, including, if reasonable, a lower sentence that effectively negates the acquitted-conduct enhancement. Third, a district court that enhances a sentence based on acquitted conduct, in fulfilling its duty to “adequately explain the chosen sentence to ... promote the perception of fair sentencing,” Gall v. United States, — U.S.-, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007), should articulate how and why, in its judgment, such conduct appropriately influenced its § 3553(a) analysis with respect to the specific defendant and specific crime at issue.

IV

We determine that the district court properly exercised its authority in sentencing White and thus affirm his conviction.