U.S. v. Restrepo, 88-3207

• Citation: 946 F.2d 654
• Decision Date: 04 October 1991
• Docket Number: No. 88-3207,88-3207
• Parties: , 4 Fed.Sent.R. 251 UNITED STATES of America, Plaintiff-Appellee, v. Dario RESTREPO, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 654

946 F.2d 654

60 USLW 2274, 4 Fed.Sent.R. 251

UNITED STATES of America, Plaintiff-Appellee, v. Dario RESTREPO, Defendant-Appellant.

No. 88-3207.

United States Court of Appeals Ninth Circuit.

Argued En Banc and Submitted

Jan. 17, 1991.

Decided Oct. 4, 1991.

Judy Clark, Federal Public Defender, San Diego, Cal., for defendant-appellant.

Patty M. Stamler, Asst. U.S. Atty., Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the District of Alaska.

Before GOODWIN, HUG, TANG, SCHROEDER, PREGERSON, ALARCON, POOLE, D.W. NELSON, NORRIS, BEEZER and WIGGINS Circuit Judges.

WIGGINS, Circuit Judge:

Dario Restrepo appeals his forty-six month prison sentence imposed after he was convicted of two counts of distribution of cocaine. A panel of this court issued an opinion on May 8, 1990. United States v. Restrepo, 903 F.2d 648 (9th Cir.1990). We granted Restrepo's petition to rehear the case en banc for the limited purpose of considering whether the preponderance of the evidence standard of proof for factors enhancing a sentence under Sentencing Guideline § 1B1.3(a)(2) satisfies due process. We conclude that it does, as a general rule. The facts, and parts one and three, of the earlier opinion remain unchanged and will not be repeated here. Part two of the earlier opinion is withdrawn and replaced with the following:

STANDARD OF PROOF

It is undisputed that in pre-Guidelines practice, a sentencing judge was free to consider or to decline to consider any and all information about a defendant's background and relevant conduct without a requirement that the information meet any particular standard of proof. See McMillan v. Pennsylvania, 477 U.S. 79, 91, 106 S.Ct. 2411, 2418, 91 L.Ed.2d 67 (1986). Restrepo argues that because the Sentencing Guidelines severely reduce the judge's discretion and mandate the sentencing effect of uncharged crimes, due process requires something more than a preponderance of the evidence standard of proof for uncharged crimes under the Guidelines.

In commissioning and approving the Guidelines, Congress offered no guidance regarding a standard of proof for sentencing factors. Also, the Sentencing Commission expressly declined to decide the question presented in this case: "Among the legal issues that may have to be resolved are: .... What is the weight of the burden of persuasion (i.e., is it sufficient to prove the asserted factor by a preponderance of the evidence or is a higher degree of certainty required)?" Supplementary Report on the Initial Sentencing Guidelines and Policy Statements 47 n. 79 (1987). Consequently, we are left to determine the appropriate standard of proof for uncharged conduct used at sentencing based on relevant case law and due process principles.

The Supreme Court has not considered the precise question whether the preponderance of the evidence standard of proof for sentencing factors under the Guidelines satisfies due process. Every circuit that has considered the question has answered affirmatively, including a panel in an earlier case in this circuit. See, e.g., United States v. Wilson, 900 F.2d 1350, 1353-54 (9th Cir.1990); United States v. Frederick, 897 F.2d 490, 492-93 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 171, 112 L.Ed.2d 135 (1990); United States v. Alston, 895 F.2d 1362, 1372-73 (11th Cir.1990); United States v. Wright, 873 F.2d 437, 441-42 (1st Cir.1989); United States v. Guerra, 888 F.2d 247, 251 (2d Cir.1989) cert. denied, --- U.S. ----, 110 S.Ct. 1833, 108 L.Ed.2d 961 (1990); United States v. McDowell, 888 F.2d 285, 290-91 (3d Cir.1989); United States v. Urrego-Linares, 879 F.2d 1234, 1237-38 (4th Cir.), cert. denied, 493 U.S. 943, 110 S.Ct. 346, 107 L.Ed.2d 334 (1989); United States v. Silverman, 889 F.2d 1531, 1535 (6th Cir.1989); United States v. White, 888 F.2d 490, 499 (7th Cir.1989); United States v. Gooden, 892 F.2d 725, 727-28 (8th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 2594, 110 L.Ed.2d 274 (1990). ¹

Although the Supreme Court has not addressed the precise question, an analogous pre-Guidelines case from the Court supports the currently unanimous conclusion by the Courts of Appeal that the preponderance standard generally satisfies due process under the Guidelines. In McMillan, 477 U.S. 79, 106 S.Ct. 2411, the Court considered whether, when a state legislature eliminates judicial discretion and sets a predetermined effect at sentencing for the visible possession of a handgun, due process requires something more than a preponderance of the evidence to establish the possession. The Court first determined that Pennsylvania did not transgress constitutional due process limits when it defined the visible possession of a handgun as a sentencing factor rather than as an element of a crime. Id. at 84-91, 106 S.Ct. at 2415-18. The Court reached this conclusion because the use of handgun possession as a sentencing factor does not (1) negate the presumption of innocence, or relieve the prosecution of the burden of proving guilt of the underlying crime, id. at 87, 106 S.Ct. at 2416, or (2) alter the maximum penalty available for the crime committed, or (3) create a separate offense calling for a separate penalty, id. at 88-90, 106 S.Ct. at 2417-18.

After the Court established that the visible possession of a handgun can be properly classified as a sentencing factor, it addressed the question whether due process might nevertheless require that the factor be proven by at least clear and convincing evidence at sentencing. The Court answered resoundingly in the negative:

We see nothing in Pennsylvania's scheme that would warrant constitutionalizing burdens of proof at sentencing.

... We have some difficulty fathoming why the due process calculus would change simply because the legislature has seen fit to provide sentencing courts with additional guidance.

Id. at 92, 106 S.Ct. at 2419 (footnote omitted). The result is not based on any peculiarities of the sentencing factor at issue in McMillan, but is based on the bifurcation of the criminal justice system into a conviction stage and a sentencing stage, with meaningful distinctions in the purposes, interests, and burdens involved in each stage. It was important to the Court that:

criminal sentencing takes place only after a defendant has been adjudged guilty beyond a reasonable doubt. Once the reasonable-doubt standard has been applied to obtain a valid conviction, the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him.

Id. at 92 n. 8, 106 S.Ct. at 2419 n. 8 (internal citation omitted). The Court emphasized that even a clear and convincing standard of proof at sentencing, rather than a preponderance standard, "would significantly alter criminal sentencing." Id.

McMillan holds that the preponderance standard for fact-finding generally is adequate to protect any interests a properly convicted defendant retains at sentencing. We believe that McMillan controls this case. The Guidelines do not differ from the Pennsylvania statute in any manner that significantly affects the due process conclusion in McMillan. ² As did the Pennsylvania statute, ³ the Sentencing Guidelines have taken traditional sentencing factors and given them a predetermined effect. Like the Pennsylvania statute, the Guidelines, both as a general matter and specifically in the section at issue here (§ 1B1.3(a)(2)), do not (1) negate the presumption of innocence or the prosecutor's burden of proving guilt with regard to the underlying crime in the conviction stage of the criminal justice process, or (2) alter the maximum penalty available for the crime committed, ⁴ or (3) create new offenses requiring separate punishment.

Obviously, the Guidelines herald an historic shift in sentencing procedure that is vastly different in scope from the statute at issue in McMillan. The dissent ably articulates the radical nature of this change: the sentencing judge's role, in large measure, no longer extends to controlling the effect of any of his or her findings on the sentence. However, we do not believe that this radical change has the effect on the constitutionally required standard of proof at sentencing that the dissent suggests.

Even before the Guidelines were enacted, a convicted criminal had a protected interest at sentencing. ⁵ The criminal justice system assumed that the best way to protect that interest, as well as society's interest in just punishment, was to give the sentencing judge full discretion to consider all relevant information and to determine the effect, if any, the information ought to have on the sentence. The Guidelines are the product of a change of heart. Congress no longer believes that discretionary sentencing adequately serves the defendant's interest in a fair sentence and has decided to confer greater protection by providing uniform guidelines for sentencing. This change of heart, however, implicates the Supreme Court's warning against the erroneous reasoning that when a legislature undertakes to provide sentencing guidance, the standard of proof automatically increases at sentencing: "Pennsylvania's decision to [assign a predetermined effect to a sentencing factor] has not transformed against its will a sentencing factor into an 'element' of some hypothetical 'offense,' " thereby requiring a heightened standard of proof. McMillan, 477 U.S. at 90, 106 S.Ct. at 2418.

The bifurcation of the administration of criminal justice into a conviction stage and a sentencing stage has not changed under the Guidelines. The purpose of the Guidelines was not to make sentencing factors any more or less important relative to the offense of conviction in the sentencing process than they were under pre-Guidelines procedures. Rather, the purpose was to make the effect sentencing factors have on the sentence more uniform and predictable. Guidelines Manual, ch. 1, part A(3). Indeed, the Sentencing...