U.S. v. Boos, 02-3006.

• Decision Date: 15 May 2003
• Docket Number: No. 02-3006.,02-3006.
• Citation: 329 F.3d 907
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel P. BOOS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 907

329 F.3d 907

UNITED STATES of America, Plaintiff-Appellee, v. Daniel P. BOOS, Defendant-Appellant.

No. 02-3006.

United States Court of Appeals, Seventh Circuit.

Argued April 1, 2003.

Decided May 15, 2003.

As Amended on Denial of Rehearing June 11, 2003.

Timothy M. O'Shea (argued), Office of U.S. Attorney, Madison, WI, for Plaintiff-Appellee.

Morris D. Berman (argued), Madison, WI, for Defendant-Appellant.

Before FLAUM, Chief Judge, and COFFEY and EVANS, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

On a November day in 1990, a backhoe operator at a landfill in Minnesota was shocked when he saw a severed arm fall out of a plastic bag lodged in a pile of garbage he was trying to move. The arm carried a distinctive tattoo of a bare-chested woman riding astride a tiger. The tattoo helped police establish that the arm belonged to Robert Melby, a member of the Iron Wings motorcycle "club," a gang with headquarters in an old farmhouse in rural Dunn County in northwest Wisconsin. Melby was been missing 6 days when his arm was found.

Melby's murder eventually became the tail that wagged the dog in this prosecution a dozen years later of Daniel Boos, the former president of the Iron Wings. Boos pled guilty in 2002 to using the Iron Wings' "clubhouse" to sell drugs — cocaine and methamphetamine — and being a felon in possession of firearms. 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 922(g)(1). That set the stage for what turned out to be the real battleground of the case, the government's claim that Boos' sentence should be significantly enhanced because he murdered Melby. After a 2-day hearing, the district judge was convinced that Boos had done the deed, so she invoked the guidelines' murder cross-reference, U.S.S.G. § 2D1.1(d)(1), which considerably jacked up Boos' penalty range. Instead of a sentence within a range of 121 to 151 months, Boos received a sentence of 30 years (240 months on one count and 120 on the other, to run consecutively). This enhancement forms the primary basis of Boos' appeal.

Boos argues that requiring proof of the murder only by a preponderance of the evidence violated his due process rights because the application of the murder cross-reference hiked up his sentence so severely.

First, relying on Apprendi v. New Jersey, 530 U.S. 466, 477, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Boos claims that applying the cross-reference essentially adds an element of the crime, and, as such, the murder must be proved to a jury's satisfaction beyond a reasonable doubt. But Apprendi only applies to sentencing increases beyond the statutory maximum for the underlying offense. Since Boos' 30-year sentence was equal to the combined statutory maximum for the two counts of his conviction, Apprendi does not apply. See United States v. Noble, 299 F.3d 907, 909-10 (7th Cir.2002) ("Noble's 30-year combined sentence does not exceed the combined maximum for the two counts, so there was no Apprendi violation.").

Boos also argues that, at a minimum, the district court should have required the government to show clear and convincing evidence that he killed Melby. Although Boos admits that the preponderance of the evidence standard is generally applied when deciding what effect to give relevant uncharged conduct at sentencing (and, in fact, an enhancement can be proper for uncharged conduct even if the defendant previously had been acquitted on charges for that conduct), see United States v. Watts, 519 U.S. 148, 156-57, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997), he claims his situation warrants an exception because his sentence increased so dramatically. Other circuits have applied a clear and convincing standard in similar situations. See United States v. Kikumura, 918 F.2d 1084, 1101 (3rd Cir.1990); United States v. Shonubi, 103 F.3d 1085, 1089 (2nd Cir.1997).

At times, we have suggested that a higher standard might be necessary in the rare instance when a factual finding will result in a sentencing increase so great "that the sentencing hearing can fairly be characterized as `a tail which wags the dog of the substantive offense.'" United States v. Corbin, 998 F.2d 1377, 1387 (7th Cir.1993) (quoting United States v. Schuster, 948 F.2d 313, 315 (7th Cir.1991) (citations omitted)). See also United States v. Smith, 308 F.3d 726, 748 (7th Cir.2002) ("[T]he principle ... remains viable."); United States v. Rodriguez, 67 F.3d 1312, 1322 (7th Cir.1995) ("Our decisions implicitly have agreed with Kikumura to the extent that due process considerations may, at some point, require a greater showing for a dramatic increase."); Schuster, 948 F.2d at 315-16 (finding that the difference between a sentence in the 21-to-27-month range and a 5-year sentence was not so "exceptional" as to require a higher burden of proof, but implying that an "exceptional" situation would warrant a higher burden of proof).

Despite suggestions in some of our cases, we have never taken the final step and actually required the prosecution to meet a clear and convincing evidence standard. In fact, we have at times been critical of Kikumura's basic premise. See United States v. Ewers, 54 F.3d 419, 421 (7th Cir.1995) (we have "not been sympathetic to the Kikumura analysis"); United States v. Masters, 978 F.2d 281 (7th Cir.1992). In Masters, we found:

A sentence at the top of the statutory range does not punish Masters for a crime he didn't commit; it uses all available information about his character and dangerousness in choosing the sentence for the crime of which he stands convicted. Judges have been considering defendants' activities and character since long before there were guidelines, with consistent approval from the highest court. This is one reason why we have held that judges may take other crimes into account when selecting a sentence under the guidelines, even if the defendant has been charged with and acquitted of those crimes.

978 F.2d at 285 (citations omitted). As a result, we found that "[a]lthough Kikumura expressed [its] conclusion in constitutional terms, it is impossible to square such a holding with McMillan — or with the history of discretionary sentencing in the United States." Therefore, the defendant's due process argument went "nowhere." Id. at 286 (citing McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986) and noting that the Supreme Court has also held that the preponderance standard is appropriate when deciding whether to use other-crimes evidence at trial, see Huddleston v. United States, 485 U.S. 681, 690, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988)).

Despite our castigation of Kikumura's reasoning in Masters, we did not reject Kikumura's holding. That's because we were able to "defer until another day the decision whether development in a common-law fashion ever would lead to the use of a clear-and-convincing standard in sentencing," 978 F.2d at 287, since the finding of murder resulted in just a 4-level increase. We do not have that option here, however, as the more than 17 additional years Boos received from the application of the cross-reference (more than doubling his sentence) qualifies as "exceptional." That seems to put Masters' anti-Kikumura train back on the track, ready to run into our suggestions in Corbin and Schuster that we should require clear and convincing evidence for drastic sentencing increases.

As we did in Masters, though, we can pull the emergency brake and avoid the collision of the two seemingly incongruous lines of cases. That's because the evidence against Boos supports a finding of guilt even under a clear and convincing evidence standard, making the choice of standard irrelevant. See, e.g., Slaney v. The Int'l Amateur Athletic Fed'n, 244 F.3d 580, 597 (7th Cir.2001) ("[A]n appellate court may affirm the district court's dismissal on any ground supported by the record, even if different from the grounds relied upon by the district court.").

Boos argues that the evidence does not support a finding of guilt even under a preponderance of the evidence standard. Investigators found no blood or bullet fragments in the basement of the Iron Wings clubhouse, where police suspect the murder took place (although at the time of the search they did not think that the murder had taken place at the clubhouse, and, as a result, they were not looking for hard-to-find pieces of physical evidence such as drops of blood or bullet fragments).

In addition, there were no bullets found in the leg police recovered (the other leg was never found). Boos claims that contradicts a written description of the killing by Randy Simonsmeier, the prosecution's star witness to whom Boos confessed (Simonsmeier wrote that Boos shot Melby in the "kneecap's," suggesting that both legs should have contained at least one bullet). Also, no fingerprints were discovered on the plastic bags containing Melby's arm and leg, and police found no plastic bags at the Iron Wings clubhouse that were like the ones found containing Melby's arm and leg.

Without more physical evidence, prosecutors might have struggled to prove Boos' guilt beyond a reasonable doubt (likely explaining why Boos was never brought up on state murder charges). But the evidence was sufficient to conclude that it is "highly probable"...