475 F.3d 556 (3rd Cir. 2007), 05-1698, United States v. Grier

Docket Nº:05-1698.
Citation:475 F.3d 556
Party Name:UNITED STATES of America v. Sean Michael GRIER, Appellant.
Case Date:February 05, 2007
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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475 F.3d 556 (3rd Cir. 2007)

UNITED STATES of America

v.

Sean Michael GRIER, Appellant.

No. 05-1698.

United States Court of Appeals, Third Circuit.

February 5, 2007

Argued En Banc September 13, 2006[*]

On Appeal from the United States District Court for the Middle District of Pennsylvania, D.C. No. 03-cr-00284, District Judge: Honorable Sylvia H. Rambo

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[Copyrighted Material Omitted]

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Ronald A. Krauss (Argued), Office of Federal Public Defender, Harrisburg, PA, Attorney for Appellant, Sean Michael Grier.

Christian A. Fisanick, Office of United States Attorney, Scranton, PA, Theodore B. Smith, III (Argued), Eric Pfisterer, Kimberly A. Kelly, Office of United States Attorney, Harrisburg, PA, Attorneys for Appellee, United States of America.

Lawrence S. Lustberg, Michael A. Baldassare, Gibbons, Del Deo, Dolan,

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Griffinger & Vecchione, Newark, NJ, Attorneys for Amicus-Appellant, National Association of Federal Defenders and National Association of Criminal Defense Lawyers.

Before: SCIRICA, Chief Judge, SLOVITER, McKEE, RENDELL, BARRY, AMBRO, FUENTES, SMITH, FISHER, CHAGARES and VAN ANTWERPEN, [**] Circuit Judges.

OPINION

FISHER, Circuit Judge.

The Supreme Court held in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), that facts relevant to the advisory United States Sentencing Guidelines need not be submitted to a jury. We now confirm that these facts likewise do not require proof beyond a reasonable doubt.

I.

It all started with a lost bicycle. The bike was owned by Juan Navarro but had been commandeered by his sister. She was holding it, with the support of her boyfriend, Sean Michael Grier, as a form of security against Navarro's promise to pay a cable bill. Navarro did not approve of this arrangement.

He confronted Grier and demanded the bike. Grier refused. Navarro said: "[T]here's gonna be some problems if I don't have my bike back." Grier responded: "[L]et the problem be right here and now."

Navarro swung at Grier. The punch did not connect, and the two men fell struggling to the ground. Several witnesses warned Navarro that Grier had a gun. A shot was fired. When the two men separated, Grier was holding a gun. Neither had been struck by the bullet or sustained serious injury.

Grier pointed the gun at Navarro. Navarro attempted to rush at Grier but was held back by other individuals. Grier pointed the gun upward and fired a single shot. Both men then left the scene. Grier discarded the firearm in a nearby trash can.

A police investigation ensued. Officers found the discarded gun, and a background check revealed that it had been stolen. Grier was soon arrested on state charges of aggravated assault, receiving stolen property, and unlawful possession of a firearm. These counts were dismissed in August 2003.

Grier was subsequently charged by federal indictment with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and possession of a stolen firearm, in violation of 18 U.S.C. § 922(j). He pled guilty to the first count; the second count was dismissed pursuant to a plea agreement.

A presentence report was prepared. It assessed a four-level enhancement pursuant to § 2K2.1(b)(5) as Grier used the firearm in connection with another felony offense, 1 namely an aggravated assault under Pennsylvania law. See 18 Pa. Cons. Stat. § 2702.2 This finding resulted in a

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four-level enhancement in Grier's offense level under the United States Sentencing Guidelines, raising it from 23 to 27, see U.S. Sentencing Guidelines Manual § 2K2.1(b)(5), and a fifty percent increase in the recommended imprisonment range, raising it from 84 to 105 months to 120 to 150 months, see id. ch. 5, pt. A. The final Guidelines range, in light of the statutory maximum sentence of ten years, see 18 U.S.C. § 924(a)(2), was 120 months. See U.S. Sentencing Guidelines Manual § 5G1.1.

Grier objected to the four-level enhancement, and a sentencing hearing was held on February 25, 2005. The parties argued briefly over the correct burden of proof. Defense counsel claimed that the reasonable-doubt standard sh ould apply while counsel for the government maintained that a preponderance standard should govern. The District Judge agreed with the government: "I believe that the standard currently is preponderance, [and] until [I have] something more definitive from the Court of Appeals, it's what I'll use."

The only witness to testify at the hearing was Navarro. He described the altercation and stated that he had not possessed a firearm or any other weapon on his person at the time. He admitted, however, that he had not seen Grier "pull" the gun from his clothing:

I don't know if the gun fell out [of Grier's pockets] or whatever. People was telling me that he was taking the gun out. And from there, that's when everybody tried to get the gun away from him.

Defense counsel argued that the enhancement should not apply because Grier had acted in self-defense. She also asserted that, under Pennsylvania law, Grier was guilty not of aggravated assault but of "simple assault by mutual consent," a lesser-graded version of simple assault punishable by imprisonment for one year or less. See 18 Pa. Cons. Stat. §§ 1104, 2701.3 This crime is not considered a "felony" under the Guidelines, see U.S. Sentencing Guidelines Manual § 2K2.1 cmt. n.1, and would not support the enhancement.

The District Court adopted the presentence report, including the finding of aggravated assault and concomitant enhancement. It also granted a downward departure of two offense levels "in light of [N avarro's] conduct, which w as p artly responsible for the four[-]point enhancement." With this departure, the range of imprisonment prescribed by the Guidelines was reduced to 100 to 120 months.

The District Court recognized that the Guidelines were advisory but nevertheless

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imposed a term of imprisonment of 100 months, within the recommended range. It justified this sentence in a single statement: "The Court believes that 100 months is reasonable in view of the considerations of [18 U.S.C. §] 3553(a)." Defense counsel did not object to the District Court's explanation for the sentence.

This timely appeal followed. Grier argues that the District Court erred in applying a preponderance standard to facts relevant to the four-level enhancement, in finding that he had committed aggravated assault under Pennsylvania law, and in imposing sentence without fully articulating its consideration of the factors under 18 U.S.C. § 3553(a). We have jurisdiction over these claims under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. See United States v. Cooper, 437 F.3d 324, 327 (3d Cir. 2006).

II.

There is no doubt that Booker, by rendering the United States Sentencing Guidelines advisory rather than mandatory, "brought about sweeping changes in the realm of federal sentencing." United States v. Davis, 407 F.3d 162, 163 (3d Cir. 2005). But there is every reason to believe that the Supreme Court intended that the practices that have guided us and other courts in the twenty years since the Guidelines were first promulgated would continue to govern sentencing in the federal courts.

Under an advisory Guidelines scheme, district courts should continue to make factual findings by a preponderance of the evidence and courts of appeals should continue to review those findings for clear error. The only change in the equation is that, at the end of the day, the district court is not bound by the recommended Guidelines range, but must impose a sentence based on all the factors articulated in § 3553(a). The court of appeals must then decide whether that final sentence is "reasonable."

A.

The primary issue in this case is whether the Due Process Clause requires facts relevant to enhancements under the United States Sentencing Guidelines, particularly those that constitute a "separate offense" under governing law, to be proved beyond a reasonable doubt. The Supreme Court did not reach this issue in Booker, see 543 U.S. at 259, 125 S.Ct. 738, and we declined to address it in Cooper, 437 F.3d at 330 & n.7. Nevertheless, we believe that the discussion in Booker regarding the Jury Trial Clause of the Sixth Amendment applies with equal force to the Due Process Clause of the Fifth Amendment. See Apprendi v. New Jersey, 530 U.S. 466, 484, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (discussing these "associated" provisions). Once a jury has found a defendant guilty of each element of an offense beyond a reasonable doubt, he has been constitutionally deprived of his liberty and may be sentenced up to the maximum sentence authorized under the United States Code without additional findings beyond a reasonable doubt.

1.

The constitutional guarantees of "trial . . . by an impartial jury," U.S. Const. amend. VI, and "due process of law," U.S. Const. amend. VI, stand as a bulwark of individual liberty. They interpose between the legislature and the court the community's own judgment as to the existence of a crime. Only if a jury of an individual's peers concludes beyond a reasonable doubt that he or she committed each element of the charged offense, as defined by the legislature, may the court impose punishment. Booker, 543 U.S. at 230, 125 S.Ct. 738

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(citing United States v. Gaudin, 515 U.S. 506, 511, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995)).

This principle is rooted in common law considerations of fundamental fairness. See, e.g., Blakely v. Washington, 542 U.S. 296, 301-02, 305-07, 311-12, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); Apprendi, 530 U.S. at 476-77, 120 S.Ct. 2348; Harris v. United States,...

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