U.S. v. Masters

• Decision Date: 09 November 1992
• Docket Number: Nos. 91-2985 and 91-3814,s. 91-2985 and 91-3814
• Citation: 978 F.2d 281
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alan MASTERS and James D. Keating, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 281

978 F.2d 281

UNITED STATES of America, Plaintiff-Appellee, v. Alan MASTERS and James D. Keating, Defendants-Appellants.

Nos. 91-2985 and 91-3814.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 16, 1992.

Decided Oct. 14, 1992.

Rehearing and Rehearing En Banc Denied Nov. 9, 1992.

Thomas Scorza (argued), Barry R. Elden, Asst. U.S. Attys., Office of the U.S. Atty., Criminal Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Thomas Peters (argued), William P. Murphy, Murphy, Peters, Davis & O'Brien, Chicago, Ill., for James D. Keating.

Patrick A. Tuite (argued), Chicago, Ill., for Alan Masters.

Before BAUER, Chief Judge, EASTERBROOK, Circuit Judge, and WOOD, Jr., Senior Circuit Judge.

EASTERBROOK, Circuit Judge.

Judges and genies have this in common: by granting supplicants exactly what they wish for, they may produce misery and regret. Eakin v. Continental Illinois National Bank, 875 F.2d 114, 118 (7th Cir.1989). Alan Masters, sentenced to 40 years in prison for racketeering activities that ran the gamut from protecting bookies to soliciting the murder of his wife, asked to be resentenced under the sentencing guidelines. He had received the maximum sentence for the crimes of which he had been convicted (consecutive 20-year terms) and believed that the guidelines required a lower sentence. We granted his wish. 924 F.2d 1362, 1369 (7th Cir.1991). Once again the district court selected a 40-year term--but with a big difference. Under the first sentence, Masters was eligible for parole after 10 years, and a well-behaved prisoner had to be released after serving two-thirds of his sentence, shortened by 120 days of good time credit per year. 18 U.S.C. §§ 4161, 4205(a), 4206(d) (1976 ed.). Imprisonment under the Sentencing Reform Act of 1984, by contrast, comes without possibility of parole, and a prisoner earns good time at a maximum rate of 54 days per year. 18 U.S.C. § 3624(b). Masters now rues his request and appeals again. So does his henchman James Keating, who on the first appeal adopted Masters' arguments but now disclaims any desire for a guideline sentence.

On the first appeal Keating adopted all of Masters' arguments, adding a few of his own. We understood him to seek resentencing under the guidelines and remanded so that the district judge could determine whether the conspiracy ended before November 1, 1987, the date the new sentencing system took effect. Keating did not seek rehearing, and in the district court he clamored for the benefit of the guidelines--until he saw how the prosecutor calculated the guideline sentence for Masters. Then he yanked his request and insisted that he had never wanted resentencing. Too late. By adopting all of Masters' arguments on the first appeal, Keating invited what has happened. If he believed that we misunderstood the effect of this adoption, he should have asked the first panel to rescind the portion of the judgment remanding his case. Instead he embraced the remand, and the recalculation, until the numbers turned sour.

Masters concedes that his criminal enterprise continued into the period covered by the Sentencing Reform Act. Keating submits that he dropped out before November 1, 1987. The jury convicted Keating on an indictment charging that the conspiracy continued through mid-1988. Never during trial, at the initial sentencing, or on the first appeal, did Keating say that he withdrew at any earlier date. In his initial filing after remand, Keating told the district court: "There is no evidence that your Petitioner withdrew from the conspiracy. Therefore, the conspiracy continued after November 1, 1987." Keating changed his tune when he realized the effect of the guidelines, but he was right on the facts: there is no evidence that he withdrew, and the district judge so found. He took no step to end the criminal adventure or report its operations to the authorities, did not make a clean break of it and thus did not withdraw under the demanding standard of the criminal law. United States v. Patel, 879 F.2d 292 (7th Cir.1989). As Keating's remaining arguments track Masters', we need not mention him again.

Masters was convicted of racketeering and conspiracy to commit racketeering. Only the latter offense lasted into the guideline era. Masters contends that a court should start with § 2E1.1, which applies to racketeering conspiracies. That guideline provides a base offense level of 19 or the level appropriate to the substantive crime, whichever is greater. Because in Masters' view that offense was solicitation to commit murder, the substantive guideline is § 2A2.1. (Rather, was § 2A2.1, as that guideline existed before amendment 311.) Guideline 2A2.1 provided a base offense level of 20. Masters submits that because § 2E1.1 lists no adjustments, none can be made. Combining an offense level of 20 with his criminal history category of I produces a guideline range of 33-41 months. Because he received more than that for the racketeering offense, Masters concludes that the guideline sentence for the conspiracy is effectively zero, running concurrently with the substantive RICO sentence. See U.S.S.G. § 5G1.2(c).

The district judge saw things differently. He calculated the sentence in three ways, each of which produced 40 years' imprisonment. Each of the three depends to some degree on his finding that Masters "is directly responsible for the murder of his wife." The judge so found even though the jury did not answer a special interrogatory asking about the murder. Masters contends that this omission produced an implicit acquittal, an argument to which we return.

1. Section 2E1.1(a)(2) calls for use of "the offense level applicable to the underlying racketeering activity." Not the base offense level, as Masters would have it, but the whole offense level. Guideline 2X1.1(a) drives home this point, providing that in cases of attempt, solicitation, and conspiracy that fall outside other guidelines, the court should use the "base offense level from the guideline for the substantive offense, plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty." Then § 2X1.1(b) provides some increases on top of the "base" level computed in this way. Starting from the base of 20 in the former version of § 2A2.1, the district judge added 2 levels for more than minimal planning (§ 2A2.1(b)(1)), 9 levels for the use of a firearm to inflict bodily injury on Dianne Masters (§ 2A2.1(b)(2), (3)), and 2 more levels for paying money to other persons in connection with the crime (§ 2A2.1(b)(4)). Thus the district judge arrived at 33 within § 2A2.1 itself. Then he turned to generally applicable enhancements: 2 levels because Mrs. Masters was physically restrained (§ 3A1.3), 2 levels because Masters was the organizer or leader of the conspiracy (§ 3B1.1(c)), and 2 levels for obstruction of justice (§ 3C1.1). Level 39 yields a sentencing range of 262-327 months. Nothing in the computation thus far reflects the victim's death. Because Dianne Masters died and Alan Masters was responsible, the judge concluded that an upward departure to 480 months is appropriate. See U.S.S.G. § 5K2.1, providing that departure is in order when a death results.

2. Section 2E1.1(a)(2) refers to "the offense level applicable to the underlying racketeering activity." Instead of turning to the guideline for conspiracy to commit murder, as in the prior method, one may turn to the guideline for murder, § 2A1.1. The base offense level for murder is 43. Life imprisonment is the sentence prescribed for level 43 offenses. To come as close to life imprisonment as possible, the court gave consecutive maximum sentences on each count, for a total of 40 years. Guideline 5G1.2(d) requires this approach.

3. Amendment 311, effective November 1, 1990, moved conspiracy to commit murder from § 2A1.1 (on which see Method 1) to a new § 2A1.5. This guideline says that "[i]f the offense resulted in the death of a victim, apply § 2A1.1 (First Degree Murder)." U.S.S.G. § 2A1.5(c)(1). That takes us straight to Method 2. Congress provided that courts must apply the guidelines "that are in effect on the date the defendant is sentenced". 18 U.S.C. § 3553(a)(4). Masters was sentenced before amendment 311 but resentenced after its adoption. He contends that the ex post facto clause of the Constitution prevents the court from applying this amendment to him. But see United States v. Bader, 956 F.2d 708 (7th Cir.1992). Sidestepping this contention, the district court treated amendment 311 as clarifying rather than changing the law--as demonstrating, in other words, that Method 2 has been the right one all along.

Like the district judge, we conclude that Method 2 is proper. Methods 1 and 3 reinforce the result, demonstrating the (rough) internal consistency of the guidelines. Masters insists that the guidelines implement a charge-offense system and observes that he was neither charged with nor convicted of murder. True enough, the Sentencing Commission rejected real-offense sentencing as impractical, see Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 Hofstra L.Rev. 1, 8-12 (1988); Ilene H. Nagel, Structuring Sentencing Discretion: The New Federal Sentencing Guidelines, 80 J.Crim.L. & Criminology 883, 914-25 (1990). The guidelines start with the offense of conviction. U.S.S.G. § 1B1.2(a); United States v. Missick, 875 F.2d 1294, 1302 (7th Cir.1989). But real-offense principles influence not only the aggravating and mitigating factors but also the definition of relevant conduct under § 1B1.3. William W. Wilkins, Jr. & John R. Steer, Relevant Conduct: The Cornerstone of the Federal Sentencing Guidelines, 41 S.C.L.Rev. 495 (1990); Nagel, 80 J.Crim.L. & Criminology at 925-27. For example, the guidelines use the full quantity of drugs sold or loot stolen in a single scheme or course of conduct,...