U.S. v. Dare, 04-30202.

• Decision Date: 23 September 2005
• Docket Number: No. 04-30202.,04-30202.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven Douglas DARE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

425 F.3d 634

UNITED STATES of America, Plaintiff-Appellee, v. Steven Douglas DARE, Defendant-Appellant.

No. 04-30202.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 9, 2005.

Filed September 23, 2005.

Michael Donahoe, Federal Defenders of Montana, Helena, MT, for the defendant-appellant.

Paulette L. Stewart, United States Attorney's Office, Helena, MT, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Montana; Donald W. Molloy, Chief District Judge, Presiding. D.C. No. CR-03-00020-DWM.

Before: O'SCANNLAIN, LEAVY, and BEA, Circuit Judges.

LEAVY, Circuit Judge:

Stephen Douglas Dare appeals his statutory mandatory minimum ten-year sentence imposed pursuant to 18 U.S.C. § 924(c) for discharging a firearm during the course of a drug trafficking crime. He contends that he was sentenced in violation of the Sixth Amendment and that the district court erred in using a preponderance of the evidence standard when it found that he discharged a firearm. We hold that Dare's mandatory minimum sentence imposed through judicial factfinding utilizing a preponderance of the evidence standard does not violate the Sixth Amendment, pursuant to Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). We affirm the judgment.

BACKGROUND

On April 23, 2003, Steven Dare met several coworkers at a local bar and he drank alcohol for several hours. He stated that he was "pretty well trashed." His younger friend Casey arrived in the bar with a person that Dare did not know. Casey explained that this person wanted to buy some marijuana. Unbeknownst to both Dare and Casey, the buyer was a drug informant working for the Montana drug task force.

The trio of Dare, Casey, and the informant drove to Dare's home. Dare sold the informant a bag of marijuana for $200. Dare then asked if they would like to smoke some marijuana with him, but they declined. Dare then went into the next room and brought back his loaded shotgun. Dare stated that he "didn't want any badges coming back at me for selling drugs." Dare handed the shotgun to his friend Casey and asked him if he wanted to shoot it outside. Casey had been at Dare's home and had discharged the shotgun with him in the past, but, on this occasion, Casey declined to shoot the shotgun. Dare then took the shotgun to his front door, opened the door, and discharged the shotgun in the air, aiming over his wood pile.

A federal grand jury filed a four-count indictment. Counts II and III, to which Dare later plead guilty, alleged:

Count II: [That Dare] . . . in furtherance of a drug trafficking crime, to- wit: possession with intent to distribute and distribution of marijuana in violation of 21 U.S.C. § 841(a)(1), did possess a firearm, to-wit: a Winchester 12-gauge pump shotgun, Defender Model, serial number L2146716, in violation of 18 U.S.C. § 924(c);

Count III: [That Dare] . . . did knowingly, intentionally, and unlawfully, possess with intent to distribute and distribute controlled substances, to-wit: 12 grams or more of a mixture of substances containing marijuana, in violation of 21 U.S.C. § 841(1)(a).

The statute under which Dare was indicted on Count II, 18 U.S.C. § 924(c), provides in relevant part:

(c)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime —

(i) be sentenced to a term of imprisonment of not less than 5 years;

(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

(c)(1)(B) If the firearm possessed by a person convicted of a violation of this subsection —

(i) is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault

weapon, the person shall be sentenced to a term of imprisonment of not less than 10 years; or

(ii) is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, the person shall be sentenced to a term of imprisonment of not less than 30 years.

(c)(1)(C) In the case of a second or subsequent conviction under this subsection, the person shall —

(i) be sentenced to at term of imprisonment of not less than 25 years; and

(ii) if the firearm involved is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, be sentenced to imprisonment for life.

18 U.S.C. § 924(c)(1)(A)-(C) (2004).

Neither "brandish[ing]" nor "discharg[ing]" the firearm, 18 U.S.C. § 924(c)(1)(A)(ii), (iii), was alleged in the indictment.

Dare entered a plea of not guilty at his arraignment. He later stated that he had no recollection of discharging the shotgun until he was informed of that fact when the magistrate judge read the indictment to Dare from the bench.

Dare moved to change his plea from not guilty to guilty. In his motion he stated:

[T]he parties have only recently recognized that under Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), the court determines whether a sentence under 18 U.S.C. § 924(c) [Count II] should be enhanced for brandishing or discharging a firearm. . . . [D]efendant admits he possessed the shotgun during the drug crime but disputes that he either brandished or discharged it, which are issues for this Court at the time of sentencing under Harris, supra.

Dare acknowledged in his plea hearing that he knowingly possessed the shotgun in furtherance of the crime of possession with intent to distribute marijuana. Dare stated, when questioned by the district court, that the maximum penalty he faced under the § 924(c) charge was life imprisonment.

Dare was sentenced on April 30, 2004. Dare argued that for the government to establish that he had brandished or discharged the shotgun in relation to the drug transaction, the government had to satisfy a standard of proof beyond a reasonable doubt, or, at a minimum, a clear and convincing standard of proof. His lawyer called several witnesses, including Dare and his two adult sons, to testify about Dare's level of intoxication and the details regarding his use of the shotgun. Dare testified that he was highly intoxicated and that the shotgun was discharged after the drug transaction had been completed.

Regarding the sentence under § 924(c), the district court judge stated that he "had no discretion here," and further stated:

I find it outrageous, just like his sons do, that this man, for 12 grams of marijuana, is going to spend ten years of his life in a federal prison of the United States. And at the very most, I could say, well, seven years is the best deal, and that borders on outrageous. But that's what the law is.

. . . .

You have a man who's lived in a community for 25 years, who is recognized as hard working, honest, reliable, who would give the shirt off of his back to anybody, who has given two sons to this country to defend this country, and we're going to lock him up for ten years and that's not outrageous? I think it is. So I will be a part of the outrage. Unwillingly. But I'm going to do it.

The district court found that the government established by a preponderance of the evidence that the shotgun "was discharged in conjunction with the drug transaction." The court also concluded, however, that "if the burden of proof is clear and convincing," the government's proof failed. The court noted that Dare was clearly intoxicated and was unaware that he used the gun until he was advised of that fact at his arraignment. The court found there was no clear and convincing evidence (1) that Dare had intent to intimidate or threaten the two young men with the shotgun; (2) that the two men were threatened by the discharge of the shotgun; or (3) that Dare intended the discharge of the shotgun to be a part of the drug transaction.

The district court sentenced Dare to a mandatory minimum of ten years under 18 U.S.C. § 924(c)(1)(A)(iii) for discharging a gun in conjunction with a drug transaction. The district court sentenced Dare to zero months imprisonment for the possession of marijuana.¹

Dare filed a Notice of Appeal on May 6, 2004. In his brief, Dare argued that the district court should have employed a higher standard of proof at sentencing and that his sentence violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Blakely was decided by the Supreme Court in June 2004, after Dare was sentenced in April 2004.

We review de novo whether the district court applied the correct standard of proof. See United States v. Banuelos, 322 F.3d 700, 704 (9th Cir.2003). Because Dare raised his objection under Apprendi in the district court, we review his Apprendi claim de novo. See United States v. Smith, 282 F.3d 758, 771 (9th Cir.2002).

ANALYSIS

A. Sixth Amendment Protections

Dare argues that he was sentenced in violation of the Sixth Amendment constitutional protections articulated in Apprendi, then in Blakely, and most recently in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In Apprendi, the Court held that "[o]ther than the fact of a prior conviction, any 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." Apprendi,...