U.S. v. Fisher

• Citation: 502 F.3d 293
• Decision Date: 10 September 2007
• Docket Number: No. 06-1795.,06-1795.
• Parties: UNITED STATES of America v. Tracy Lamar FISHER, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

502 F.3d 293

UNITED STATES of America v. Tracy Lamar FISHER, Appellant.

No. 06-1795.

United States Court of Appeals, Third Circuit.

Argued May 7, 2007.

Filed: September 10, 2007.

Edson A. Bostic (Argued), Eleni Kousoulis, Office of Federal Public Defender, Wilmington, DE, for Appellant.

Ilana H. Eisenstein (Argued), Office of United States Attorney, Wilmington, DE, for Appellee.

Before: RENDELL, JORDAN and HARDIMAN, Circuit Judges.

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

This case presents the question we left open in our en banc decision in United States v. Grier, 475 F.3d 556 (3d Cir.2007) (Grier II): does United States v. Kikumura, 918 F.2d 1084 (3d Cir.1990), remain good law in light of the Supreme Court's landmark decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)? We hold that it does not.

I.

On the evening of January 15, 2005, Detectives Jeffrey Silvers and Andrea Janvier were patrolling Wilmington, Delaware in a marked police car when a visibly shaken pedestrian approached their vehicle. The pedestrian informed the detectives that two men — who were later identified as Defendant Tracy Lamar Fisher and Rashee Lamont Hunter — had attempted to rob him at gunpoint.

Detectives Silvers and Janvier observed the suspects from their patrol car and followed them until they went out of sight. The detectives then parked their patrol car, proceeded on foot until they located the suspects, and ordered them to stop. Instead of obeying the order, the suspects fled and a chase ensued with Hunter in the lead, Fisher behind him, and Detective Silvers leading Detective Janvier in pursuit. Silvers was able to tackle Fisher and take him into custody.

On February 22, 2005, a grand jury sitting in the District of Delaware returned a one-count indictment charging Fisher with unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Fisher pleaded guilty to the charge on July 19, 2005. The Probation Office issued its Presentence Investigation Report (PSR), which set forth the circumstances surrounding Fisher's arrest. The Probation Office recommended that Fisher's total offense level be enhanced four levels pursuant to United States Sentencing Guidelines Manual (USSG) § 2K2.1(b)(5) for possession of a firearm in relation to another felony (attempted robbery in the first degree). As an alternative ground for the same enhancement, the Probation Office noted that Fisher's conduct constituted aggravated menacing and reckless endangering, both of which are class E felonies under Delaware law. The PSR also recommended a six-level enhancement under USSG § 3A1.2(c)(1) for creating a substantial risk of serious bodily injury by assaulting a law enforcement officer during the flight from an offense. Finally, the PSR recommended a two-level enhancement pursuant to USSG § 2K2.1(b)(4) because the firearm was stolen.

Fisher challenged these enhancements, so the District Court held an evidentiary hearing on October 17, 2005. At the hearing, only Detective Silvers testified regarding the circumstances of the arrest. According to Silvers, Fisher pointed the gun at him and began to pull the trigger during the chase. The District Court found Silvers's testimony credible as it was "uncontradicted by any other evidence . . . that Fisher did not simply withdraw the gun from his waistband and discard it. At the very least, he moved the barrel of the .38 toward Silvers in a threatening fashion." In light of this factual finding, the District Court determined that Fisher's actions constituted aggravated menacing in violation of 11 Del.Code § 602(b). Moreover, the government proved that Fisher possessed a firearm in connection with the felony of reckless endangering in violation of 11 Del.Code § 604. Accordingly, the District Court imposed a four-level enhancement under USSG § 2K2.1(b)(5) for use of a firearm in connection with another felony. The District Court also imposed a six-level enhancement under USSG § 3A1.2(c)(1) because Fisher intended to cause bodily injury to a known law enforcement officer when he started to apply pressure to the trigger of his firearm while pointing it at Silvers. Finally, the District Court found that Fisher's firearm was stolen and imposed a two-level enhancement pursuant to USSG § 2K2.1(b)(4).

On January 10, 2006, the District Court filed an opinion in which it found the facts necessary to support the two-, four-, and six-level enhancements by a preponderance of the evidence. See United States v. Fisher, 421 F.Supp.2d 785, 792-99 (D.Del. 2006). Consequently, Fisher's adjusted total offense level was 29, his criminal history category was III, and his advisory Guidelines range was 108-120 months. Id. at 800. The District Court sentenced him to 108 months in prison.

II.

We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. Because we review a challenge to a precedent of this Court, we must decide whether Kikumura remains good law in light of subsequent Supreme Court rulings. See Mennen Co. v. Atlantic Mut. Ins. Co., 147 F.3d 287, 294 n. 9 (3d Cir.1998) (a panel of this Court may overrule the holding of a prior panel which conflicts with intervening Supreme Court precedent). The issue before us is straightforward. Does the Due Process Clause of the Fifth Amendment require a district court to find facts supporting sentencing enhancements by more than a preponderance of the evidence? In Kikumura, we recognized that the preponderance standard is generally appropriate, but held that when the enhancements are so substantial as to constitute "the tail that wags the dog" of the defendant's sentence, the facts underlying those enhancements must be established by clear and convincing evidence. Kikumura, 918 F.2d at 1098-1103. Despite the straightforward nature of the question presented, the law of sentencing has been so substantially transformed since we decided Kikumura that extensive discussion of the question is required.

Fisher filed his timely notice of appeal on March 7, 2006. Three months later, a panel of this Court decided United States v. Grier, 449 F.3d 558 (3d Cir.2006) (Grier I). In Grier I, the defendant drew and pointed a handgun at another man during an altercation over a stolen bicycle. Id. at 561-62. The sentence the district court imposed was based in part upon its finding that a preponderance of the evidence supported the application of USSG § 2K2.1(b)(5), which provided a four-level enhancement for the use of a firearm during a crime. See id. at 562. We agreed to hear Grier en banc and, at the request of counsel, deferred disposition of Fisher's case until the full Court decided Grier II.

On February 7, 2007, we held in Grier II that factors affecting sentencing need only be proved by a preponderance of the evidence, even when those facts would constitute a separate offense. Grier II, 475 F.3d at 565. Because the sentence Grier received — 108 months — remained within his unenhanced Guidelines range (108-120 months), we found it unnecessary to rule on the continued viability of Kikumura. Id. at 568 n. 8.

In the wake of Grier II, Fisher and the government filed supplemental briefs. Fisher acknowledges our statement in Grier II that "the right to proof beyond a reasonable doubt does not apply to facts relevant to sentencing enhancements under an advisory Guidelines regime." Id. at 565. Yet Fisher asserts that Grier II leaves Kikumura undisturbed because the panel's decision in Grier I was vacated and Booker was decided based on the Sixth Amendment, whereas Fisher raises a Fifth Amendment due process claim. Relying on Kikumura, Fisher maintains that the District Court violated his constitutional right to due process of law when it trebled his sentence based on sentencing factors found by a preponderance of the evidence.

In response to Fisher, the government presses three arguments. First, Grier II holds that district courts are permitted to find facts relevant to sentencing by a preponderance of the evidence. Second, Kikumura is no longer good law after Booker. Finally, even if Kikumura were good law, it would not control Fisher's case because Kikumura dealt with departures, not enhancements, and the enhancements in Fisher's case — which resulted in an approximately threefold increase in his sentence — were not as extreme as they were in Kikumura, where they produced a nearly twelvefold increase in the defendant's sentence.

Before we address the parties' arguments, a review of the history of due process at sentencing is appropriate. As we explain, a criminal defendant's due process rights at sentencing encompass those rights set forth in the Supreme Court jurisprudence which discussed due process at sentencing in the pre-Guidelines era, as well as those rights set forth in the Guidelines themselves, as courts have interpreted them. Because Fisher was sentenced in 2006, those cases interpreting the scope of a criminal defendant's rights under mandatory sentencing regimes — while informative as an historical matter — are less pertinent than those decided after Booker, which held in 2005 that the Guidelines are merely advisory.

III.

Until the nineteenth century, most criminal laws provided for fixed statutory sentences. See Note, The Admissibility of Character Evidence in Determining Sentence, 9 U. Chi. L.Rev. 715 (1942). During the 1800s, however, legislatures began to eschew fixed-term sentences in favor of statutory schemes that gave judges discretion to sentence within a permissible range. See Apprendi v. New Jersey, 530 U.S. 466, 481, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (citation omitted). Although defendants possessed a right of allocution under English common law as early as 1689, see Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961) (plurality opinion), for centuries it remained unclear what other rights, if any, they possessed at sentencing....