U.S. v. Ebbole

Decision Date18 December 1990
Docket NumberNo. 89-3672,89-3672
Citation917 F.2d 1495
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Harold A. EBBOLE, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Jeffrey Anderson, Richard F. Raemisch, Asst. U.S. Attys., Madison, Wis., for plaintiff-appellee.

Howard Goldman, Tomlinson & Gillman, Madison, Wis., for defendant-appellant.

Before WOOD, Jr., POSNER, and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

Harold Ebbole was sentenced to seven years and eight months in federal prison after pleading guilty to distributing a gram of cocaine to an undercover police officer. Ebbole's stiff--some, including the trial judge, would say draconian--sentence resulted from application of Sec. 1B1.3(a)(2) of the Sentencing Guidelines, which requires courts to increase a defendant's base offense level if it finds that during the "same course of conduct" the defendant possessed additional quantities of the drug, regardless of whether the defendant was convicted of offenses relating to those drugs. United States v. White, 888 F.2d 490, 497 (7th Cir.1989). Ebbole's presentence report cited evidence that Ebbole purchased 1.7 kilograms of cocaine within a 3 month period encompassing the sale to the undercover agent. The Probation Office used this quantity to calculate Ebbole's base offense level, with significant effect. Had the report considered only the drugs Ebbole pleaded guilty to distributing, his base offense level would have been 14 and the sentencing range 27-33 months. 1 The additional quantities increased the recommended base offense level to 26, increasing the sentencing range more than three-fold, to 92-115 months. Ebbole objected to the presentence report. The trial judge conducted an evidentiary hearing and determined, by a preponderance of the evidence, that Ebbole had possessed 1.2 kilograms of cocaine as part of the same course of conduct for which he pleaded guilty. 2 The court agreed that under Sec. 1B1.3, Ebbole's base offense level should be increased from 14 to 26. Ebbole contends that application of Sec. 1B1.3 denied him due process of law. 3

We have observed that the unfairness of sentencing on the basis of offenses for which a defendant has not been charged or convicted is "self-evident." United States v. Johnson, 658 F.2d 1176, 1179 (7th Cir.1981). The Supreme Court, however, has long held that this practice does not violate due process. Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) (upholding sentence based in part on evidence, not introduced at trial, that defendant committed some thirty burglaries for which he had not been tried or convicted); United States v. Grayson, 438 U.S. 41, 49, 98 S.Ct. 2610, 2615, 57 L.Ed.2d 582 (1978) (reaffirming Williams ). Ebbole does not, however, contest the trial court's discretion to increase a sentence on the basis of evidence of related, but uncharged, drug activity. Citing United States v. Davis, 715 F.Supp. 1473 (C.D.Cal.1989), Ebbole maintains that the Guidelines deprive him of due process because they require judges to impose a fixed penalty on such activity. Ebbole argues that due process requires that judges have the discretion to discount penalties imposed for uncharged conduct because the prosecution need establish such acts by only a preponderance of the evidence presented for sentencing purposes. See McMillan v. Pennsylvania, 477 U.S. 79, 91, 106 S.Ct. 2411, 2419, 91 L.Ed.2d 67 (1986) (preponderance standard for sentencing satisfies due process); White, 888 F.2d at 499 ("The Guidelines' standard for resolving disputes is a preponderance of the evidence, not reasonable doubt."); see also U.S.S.G. Sec. 6A1.3 (court may consider all relevant information that has "sufficient indicia of reliability to support its probable accuracy"). The Guidelines violate due process, he maintains, because they deny judges the discretion to assign weight to evidence of uncharged misconduct based on the degree of proof by which the misconduct was established.

We adverted to this argument in White, where we considered the proper interpretation of Sec. 1B1.3. We held there that "when the Guidelines provide tables that cumulate the amount sold or stolen, any acts that 'were part of the same course of conduct or common scheme or plan as the offense of conviction' should be included in the computation of the amount on which the offense level depends, whether or not the defendant was convicted of selling or stealing these additional amounts." Id. at 497. 4 Neither of the defendants in White raised a constitutional challenge to operation of this provision of the Guidelines, but we noted that had the prosecution failed to establish the additional quantities beyond reasonable doubt, "we would have a difficult case. Differences in the burden of persuasion might allow a court to include drugs in a sentencing computation if persuaded that the prosecutor established the defendant's connection to them by a preponderance of the evidence even though not beyond a reasonable doubt." Id. at 499. 5

Although we raised the question in White, we failed to acknowledge that McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), resolves the issue. In McMillan, the Supreme Court upheld a Pennsylvania statute providing a five-year mandatory minimum sentence for certain felonies committed with a weapon. The defendant asserted that the statute violated due process by requiring punishment for conduct proved only by a preponderance of the evidence, rather than beyond a reasonable doubt. Rejecting that argument, the Court stated that it had "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. The district court in Davis sought to distinguish the statute at issue in McMillan because "the firearm determination is never specifically segregated from other elements of sentencing discretion for purposes of establishing a fixed or 'add-on' sentence." 715 F.Supp. at 1478 n. 19. It is clear, however, that the McMillan court viewed the Pennsylvania statute as imposing a fixed penalty incurred specifically for possessing a firearm during commission of the enumerated felonies. The Court explained that Pennsylvania "simply took one factor that has always been considered by sentencing courts to bear on punishment--the instrumentality used in committing a violent felony--and dictated the precise weight to be given that factor...." Id. 477 U.S. at 89-90, 106 S.Ct. at 2417-18 (emphasis added). In United States v. Ross, 905 F.2d 1050, 1053-54 (7th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 172, 112 L.Ed.2d 136 (1990), we therefore held that McMillan forecloses the claim that depriving judges of discretion to assign weight to sentencing factors according to the strength of the proof of those factors violates due process.

In United States v. Pinto, 875 F.2d 143 (7th Cir.1989), we also rejected a challenge to the guidelines on the ground that they strip judges of sentencing discretion, albeit in a slightly different fashion. Pinto challenged the Guidelines on the ground that they deprived judges of the discretion to impose individualized sentences; his challenge focused on the lack of judicial discretion to determine which sentencing factors to consider in a single case, rather than on the lack of discretion to accord weight to a factor in proportion to the quality of the evidence supporting it, as Ebbole contends. This is a distinction without a difference, however--at least without a difference that implicates the Constitution. If--as Pinto held--Congress may "standardize the process of sentencing, in the sense that every judge must use the same offense and offender characteristics," id. at 144, and if--as Williams held--defendants may be sentenced on the basis of crimes for which they have not been convicted, it follows that Congress may impose a uniform penalty when there is some threshold of evidence that a defendant committed other crimes. Otherwise, judges could simply disregard factors they believed to be irrelevant by assigning them zero weight. "To reduce disparity in sentencing means telling some judges not to take into account things they would prefer to consider, or to weigh things differently than they think best." Pinto, 875 F.2d at 144 (emphasis in original); cf. United States v. Mistretta, 488 U.S. 361, 109 S.Ct. 647, 650, 102 L.Ed.2d 714 (1989) ("Congress, of course, has the power to fix the sentence for a federal crime, and the scope of judicial discretion with respect to a sentence is subject to congressional control.") (citations omitted).

But aren't facts that increase the Guideline range applicable to a defendant the functional equivalents of statutory elements of the offense, which, see In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), must be proved beyond a reasonable doubt? After all, "[a] state may define crime directly (through substantive elements of the offense) or indirectly (through criteria labeled 'sentencing' standards but substantive in operation)." Jones v. Thieret, 846 F.2d 457, 462 (7th Cir.1988). Congress established the Sentencing Commission in order to, inter alia, "avoid[ ] unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct...." 28 U.S.C. Sec. 991(b)(1)(B) (emphasis added). Toward this end, Congress authorized the Commission, "for each category of offense involving each category of defendant, [to] establish a sentencing range that is consistent with all pertinent provisions of title 18, United States Code." 28 U.S.C. Sec. 994(b)(1). Congress, so the argument goes, therefore acknowledged the reality that defendants...

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