U.S. v. Koch

• Decision Date: 26 August 2004
• Docket Number: No. 02-6278.,02-6278.
• Citation: 383 F.3d 436
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert KOCH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

383 F.3d 436

UNITED STATES of America, Plaintiff-Appellee, v. Robert KOCH, Defendant-Appellant.

No. 02-6278.

United States Court of Appeals, Sixth Circuit.

Argued August 11, 2004.

Decided and Filed August 26, 2004.

Appeal from the United States District Court for the Eastern District of Kentucky, Joseph M. Hood, J.

Charles P. Wisdom, Jr. (briefed), Asst. U.S. Atty., Joseph L. Famularo, U.S. Atty's Office, Lexington, KY, Laura K. Voorhees (briefed), Asst. U.S. Atty., U.S. Atty's Office, Covington, KY, Steven L. Lane (argued and briefed), U.S. Dept. of Justice Criminal Div., Washington, DC, for Plaintiff-Appellee.

Jarrod M. Mohler, Robbins, Kelly, Paterson & Tucker, Cincinnati, OH, H. Louis Sirkin (argued and briefed), Jennifer M. Kinsley (briefed), Sirkin, Pinales, Mezibov & Schwartz, Cincinnati, OH, for Defendant-Appellant.

Before BOGGS, Chief Judge; MARTIN, GUY, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, and COOK, Circuit Judges.

SUTTON, J., delivered the opinion of the court, in which BOGGS, C.J., GUY, BATCHELDER, GILMAN, GIBBONS, ROGERS, and COOK, JJ., joined. MARTIN, J. (pp. 443-49), delivered a separate dissenting opinion, in which DAUGHTREY, MOORE, COLE, and CLAY, JJ., joined.

OPINION

SUTTON, Circuit Judge.

This court granted en banc review of United States v. Koch, 373 F.3d 775 (6th Cir.2004), to consider whether Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), requires us to invalidate the United States Sentencing Guidelines on Sixth Amendment grounds. Concluding that it does not, we reinstate the judgment of the panel in this case, adopt the panel's opinion as our own and add this opinion regarding the current validity of the Sentencing Guidelines.

I.

Briefly summarized, the facts are these. In 2001, Robert Koch bought large amounts of marijuana in Arizona to sell in Kentucky. To further his scheme, he asked Justin Davis to act as a "frontman" who would sell drugs on Koch's behalf. Koch supplied Davis with five pounds of marijuana on credit, and Davis promised to repay Koch $5,000 once he had sold the drugs. Davis, however, failed to repay the $5,000, claiming in his defense that the drugs had been stolen. Apparently suspicious of Davis's explanation, Koch took matters into his own hands.

In the early morning of April 27, 2001, Koch went to Davis's home with Patrick O'Brien, Robert Gibson and Joe Shukler. Koch and Gibson were carrying guns. Koch and Gibson knocked on the door, which Davis's roommate, Luke Hitchner, answered. Although witness accounts differ over what happened next, it is clear that before long a shoot-out began between Koch and his compatriots on the one hand and Davis and Hitchner on the other. During the shoot-out, Gibson was killed and O'Brien was permanently injured.

Koch fled the scene and was not immediately apprehended. After police learned about his drug-dealing activities and the shoot-out, they executed a search warrant at his home. There, they discovered a Beretta handgun, 31 rounds of ammunition, over $1,000 in cash, 421.5 grams of marijuana and marijuana-cultivating equipment.

A federal grand jury indicted Koch on six counts stemming from his drug-dealing and the shoot-out: (1) conspiring to possess and distribute marijuana in violation of 21 U.S.C. §§ 846 and 841(a)(1); (2) using a firearm in relation to a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(iii); (3) being an unlawful user of a controlled substance in possession of a firearm in violation of 18 U.S.C. § § 922(g)(3) & 924(a)(2); (4) possessing with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1); (5) possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(C)(i); and (6) being an unlawful user of marijuana in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(3) & 924(a)(2).

A jury convicted Koch on each count but the fifth one. At sentencing, the district court found that (1) Koch's drug conspiracy involved 907 kilograms of marijuana, thereby requiring an enhanced base-offense level of 30 under U.S.S.G. § 2D1.1; (2) Koch had obstructed justice (by threatening a witness), thereby requiring a two-level enhancement under U.S.S.G. § 3C1.1; and (3) Koch had possessed a dangerous weapon, thereby requiring a two-level enhancement under U.S.S.G. § 2D1.1(b)(1). All adjustments considered, Koch faced a base-offense level of 34, which, when combined with his criminal history category (I), resulted in a sentencing range of 151-188 months. Despite this sentencing range, the court sentenced Koch to concurrent 60-month sentences on Counts 1, 3, 4 and 6 because it believed (mistakenly, it turns out) that this was the applicable statutory maximum. With respect to Count 2, the district court started with the mandatory minimum sentence of 120 months, then departed upward six levels to 188 months because it found that Koch's conduct had resulted in death (to Gibson) and significant physical injury (to O'Brien). See U.S.S.G. §§ 5K2.1 & 5K2.2. In view of the statutory requirement that his sentence on Count 2 run consecutively to his other sentences, Koch received a cumulative sentence of 248 months. Each of Koch's sentences in the end fell below the (congressional) statutory maximum.

Koch appealed his sentence. He argued that the district court's finding that the conspiracy involved 907 kilograms of marijuana was not supported by the evidence. He argued that the district court committed a "double-counting" error by adding two levels for his possession of a weapon. And he challenged the court's six-level upward departure on his sentence for Count 2 on numerous grounds. A panel of this Court rejected each argument and affirmed his sentence. 373 F.3d 775.

Koch filed a petition for rehearing en banc, arguing that the enhancement provisions of the Sentencing Guidelines violate the Sixth Amendment as construed in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and that two of his sentencing enhancements (the two-level increase based on drug quantity and the six-level upward departure based on injury and death) should be reversed. We need not decide whether Koch properly preserved these issues or whether the alleged error was harmless or plain because we conclude that Blakely does not require us to invalidate the Guidelines.

II.

We are not the first court to consider this question and we will not be the last, as the Supreme Court has scheduled oral arguments on this question for October 4, 2004. See United States v. Booker, 2004 WL 1713654 (Aug. 2, 2004); United States v. Fanfan, 2004 WL 1713655 (Aug. 2, 2004). Because we cannot expect a final answer from the Court for several months and because the judges in this Circuit deserve guidance in the interim, we granted Koch's en banc petition. We now join our colleagues in the Second and Fifth Circuits, see United States v. Mincey, 380 F.3d 102 (2d Cir.2004); United States v. Pineiro, 377 F.3d 464, 2004 WL 1543170 (5th Cir.2004), a majority of our en banc colleagues in the Fourth Circuit, see United States v. Hammoud, 378 F.3d 426 (4th Cir.2004), and some of our colleagues in the Seventh and Ninth Circuits, see United States v. Booker, 375 F.3d 508, 515 (7th Cir.2004) (Easterbrook, J., dissenting); United States v. Ameline, 376 F.3d 967, 970 (9th Cir.2004) (Gould, J., dissenting), in determining that Blakely does not compel the conclusion that the Federal Sentencing Guidelines violate the Sixth Amendment. As several of these opinions convincingly explain why Blakely does not resolve the issue and as the Court soon will give us the final word, we write briefly to emphasize three reasons for our decision.

First, in responding to a request that we invalidate the Sentencing Guidelines, we agree with Judge Easterbrook that "[t]his is the wrong forum for such a conclusion." Booker, 375 F.3d at 515. "It is always embarrassing for a lower court to say whether the time has come to disregard decisions of a higher court, not yet explicitly overruled, because they parallel others in which the higher court has expressed a contrary view." Spector Motor Serv. v. Walsh, 139 F.2d 809, 823 (2d Cir.1943) (L.Hand, J., dissenting), vacated sub nom. Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101 (1944). But the "exhilarating opportunity" to anticipate the overruling of Supreme Court precedent should be resisted, id., because the Court generally bears responsibility for determining when its own cases have been overruled by later decisions. See generally Agostini v. Felton, 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997).

Since 1987, when the Sentencing Guidelines were promulgated, the Supreme Court has considered numerous constitutional challenges to them, not one of which suggested their eventual demise and at least one of which gave the back of the hand to the kind of challenge raised here. To our knowledge, not one Justice has opined that the sentencing-enhancement provisions of the Guidelines violate the Sixth Amendment.

In 1989, the Court rejected an across-the-board challenge to the constitutionality of the Guidelines and to the Sentencing Commission on non-delegation and separation-of-powers grounds. Mistretta v. United States, 488 U.S. 361, 412, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Since Mistretta, the Court has rejected a variety of constitutional challenges to sentencing enhancements under the Guidelines (1) that turned on facts not alleged in the indictment, (2) that were based on judicial findings of fact and (3) that required proof only by a preponderance of the evidence. In 1993, the Court rejected the claim that Guideline § 3C1.1, which permits courts to enhance a sentence for perjury committed at the trial from which the conviction arose, violates the defendant's right to testify on his own behalf. See United States v. Dunnigan, 507 U.S. 87, 96, 113 S.Ct. 1111,...