U.S. v. Galloway

• Decision Date: 17 September 1992
• Docket Number: No. 90-3034,90-3034
• Parties: UNITED STATES of America, Appellant, v. Eddie Lee GALLOWAY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 414

976 F.2d 414

61 USLW 2190

UNITED STATES of America, Appellant, v. Eddie Lee GALLOWAY, Appellee.

No. 90-3034.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 6, 1992.

Decided Sept. 17, 1992.

Robert Erickson, Dept. of Justice, Washington, D.C., argued (Michael D. Johnson and Robert L. Neighbors, Asst. U.S. Attys., Little Rock, Ark., on brief), for appellant.

Richard E. Holiman, Little Rock, Ark., argued, for appellee.

Before LAY, ^* Chief Judge, BRIGHT, Senior Circuit Judge, McMILLIAN, RICHARD S. ARNOLD, ^** JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, and HANSEN, Circuit Judges, En Banc.

JOHN R. GIBSON, Circuit Judge, with whom FAGG, BOWMAN, WOLLMAN, MAGILL, LOKEN and HANSEN, Circuit Judges, join.

This case presents the issues of whether sentencing by considering relevant conduct, which has been called the cornerstone of the United States Sentencing Guidelines, is authorized by statute and permitted by the United States Constitution. The district court sentenced Eddie Lee Galloway to twenty-four months based on a single count of theft from interstate shipment under 18 U.S.C. § 659 (1988) after it held that the Constitution prevented it from considering other uncharged property theft offenses. A panel of this court affirmed the sentence without reaching the constitutional We recite the facts essentially as recounted by the panel in our earlier decision, United States v. Galloway, 943 F.2d 897 (8th Cir.1991), vacated, Order of November 20, 1991, adding other facts as we deem necessary. Galloway and W.J. Young were charged in a two-count indictment with stealing a truck-load of tires and transporting a stolen vehicle in interstate commerce on March 22, 1990. Galloway pled guilty to count one, theft from interstate shipment. The statutory maximum sentence for this offense is ten years. 18 U.S.C. § 659. Count two, charging transportation of a stolen motor vehicle in interstate commerce, in violation of 18 U.S.C. § 2312 (1988), was dismissed pursuant to a plea agreement. The latter charge would have called for a maximum penalty of five years.

                arguments, but held that consideration of the uncharged offenses under the relevant conduct guideline, United States Sentencing Commission, Guidelines Manual, § 1B1.3(a)(2) (Nov.1991), exceeded the statutory authority granted to the Sentencing Commission.   We have heard the case en banc and hold that section 1B1.3(a)(2) is authorized by statute and does not violate the constitutional rights to indictment, jury trial, and proof beyond a reasonable doubt
                

The presentence report (PSR) valued the stolen goods at $37,000. PSR pp 20-21. Under the Guidelines, this amount ordinarily would have called for a base offense level of 10 and a sentencing range of 21-27 months for Galloway, based on Criminal History Category V. U.S.S.G. § 2B1.1; U.S.S.G. Ch. 5, Pt. A. The PSR, however, alleged that, "[f]rom December, 1988, through March 22, 1990, ... Galloway participated in an organization which stole approximately $1,009,950 in stolen goods which were moving in interstate commerce." PSR p 11. It listed seven separate interstate property offenses for which the government had not charged Galloway and included these offenses in the sentencing calculation. Id. pp 13-19. Each offense involved the theft of truckloads of goods, which included shoes, clocks, tires, televisions, and baseball cards. ¹ Id. The PSR also recommended enhancement for Galloway's alleged leadership role in offenses that required more than minimal planning. Id. p 26. These adjustments nearly tripled Galloway's sentencing range. They put Galloway at offense level 19 with a criminal history category of VI, and called for a sentence of 63-78 months. ²

Galloway objected. He contended that the alleged uncharged conduct could not be used to calculate his sentencing range under section 1B1.3(a)(2) of the Guidelines. The district court agreed, after making the following observation:

The Court notes that yesterday it sentenced Mr. Galloway's co-defendant, Mr. W.J. Young, to five months imprisonment with two years of supervised release. Mr. Young had pled guilty to Count I of a two count indictment and the Government had moved the dismissal of Count II. The same situation that has occurred here....

I also note that the presentence reports in the two cases contain much identical language; indeed, the paragraphs that you talk about, 13 through 20 [detailing charged and uncharged conduct] are identical ....

Now if the facts contained in the presentence report are true, then it is clear that the Defendant Young and Defendant Galloway are really poles apart in terms of their culpability, at least to the degree of their involvement in criminal activity. But the Government has chosen to place identical charges against these two defendants. It charged Mr. Young with the only crime that he committed, at least as reflected by the presentence report--that is, the March 22, 1990 theft.

But the Government has charged Mr. Galloway with only one of eight different crimes which it says he committed, and that was the least serious of the ones mentioned in the report. And the only crime, of course, that Mr. Galloway has pled guilty to is the one in Count I--that is, the one that Mr. Young pled guilty to--but I gather the Government wishes the Court to sentence Mr. Galloway as if it had charged him with the eight thefts exceeding $1 million in value and as if he had been convicted of all those charges.

Now this is a question. The Government could have charged him with all the criminal conduct that they mention in the report and he could have pled guilty or not guilty, and if he had pled not guilty he could have been tried and, if convicted, we would not be dealing with these problems. It would be absolutely clear what the factual basis for the sentence should be. But the Government didn't choose to follow that path, and I gather it's because of the sentencing guideline laws. I don't think the Government views Mr. Galloway and Mr. Young as equal in culpability. I'm just getting the impression--I may be wrong--they are saying, "Why should we bother? Under the guidelines if he pleds [sic] guilty to one of these, then we will ask the Court to sentence him as if he had been convicted of all of them," and that, they say, is what the guidelines call for. And they may be right, but I am resisting to a certain extent that idea.

Sent. Tr. at 10-13 (emphasis added).

The district court went on to hold section 1B1.3(a)(2) unconstitutional as applied, reciting the following rationale:

[I]f you look at Amendment V to the Constitution you see that, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury."

Now it says a crime, and the Supreme Court has interpreted crimes to mean anything that might subject one to the possibility of imprisonment for more than six months. And it also says no person shall be held to answer. Well, is Mr. Galloway being held to answer for that conduct here if it's established his sentence will be increased five, six years? Yes, I think if that crime is proved [at the sentencing hearing], he will be held to answer here.

Amendment VI says: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." In all criminal prosecutions. Are we engaged in a criminal prosecution here, or is it some sort of legerdemain? Are we converting this crime into a sentencing factor? It also says--that is, Amendment VI--that he has a right to be informed of the nature and cause of the accusation. Of course, that would have been done if Amendment V had been followed.

I am going to conclude as a matter of law that in this case the Government may not, in the posture of this record, enhance the sentence of the defendant by proving by a preponderance of the evidence the conduct and acts referred to in paragraphs 13 through 19 because I feel it would violate the defendant's constitutional rights. What we have here is what I have referred to as the Russianizing of our Constitution. The language is quite clear, but we can, by sophistry or otherwise treat it and ignore it and that's what happened in other countries. I don't want to see it happen here.

Sent. Tr. at 28-29. Accordingly, the court refused to permit the government to prove The district court determined that Galloway's base offense level of four should be adjusted by six points to reflect the $37,000 worth of property involved in the charged offense. Id. at 30. The district court found that an additional two-point upward adjustment was required because there was more than minimal planning, but that the offsetting two-level downward adjustment was appropriate because of Galloway's acceptance of responsibility. The court also reduced Galloway's criminal history classification from VI to V. It found that the PSR had incorrectly calculated this element by relying on the uncharged conduct to determine that Galloway's offense behavior occurred while he was on parole and within two years of his imprisonment for a prior conviction. Id. at 31. Galloway's total offense level of 10 with a criminal history category of V called for a sentencing range of 21 to 27 months' imprisonment, and the district court sentenced Galloway to 24 months. Id. at 32.

the uncharged conduct. ³

On appeal, the panel of this court refused to reach the constitutional issues, but held that the United States Sentencing Commission exceeded its statutory authority in promulgating the uncharged conduct provisions of section 1B1.3(a)(2) to encompass separate uncharged property crimes such as those that Galloway was claimed to have committed. 943 F.2d at 899. Our panel stated that when asked, the government could not provide statutory authority in the enabling act or elsewhere to support either section 1B1.3(a)(2) or the grouping provisions of U.S.S.G. ...