U.S. v. Mayle

• Decision Date: 01 July 2003
• Docket Number: No. 01-3696.,01-3696.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David L. MAYLE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

334 F.3d 552

UNITED STATES of America, Plaintiff-Appellee, v. David L. MAYLE, Defendant-Appellant.

No. 01-3696.

United States Court of Appeals, Sixth Circuit.

Argued February 4, 2003.

Decided and Filed July 1, 2003.

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James C. Lynch (argued and briefed), Assistant United States Attorney, Cleveland, OH, for Plaintiff-Appellee.

John B. Gibbons (argued and briefed), Cleveland, OH, for Defendant-Appellant.

Before BOGGS and NORRIS, Circuit Judges; BELL, Chief District Judge.^*

OPINION

ROBERT HOLMES BELL, Chief Judge.

Defendant David L. Mayle appeals his sentence of 360 months in prison on a conviction that carried a pre-departure sentencing guideline range of 15 to 21 months. For the reasons that follow, the sentence will be AFFIRMED.

I.

Defendant was charged in a five-count indictment with three counts of mail fraud in violation of 18 U.S.C. § 1341, one count of forging Treasury checks in violation of 18 U.S.C. § 510(a)(1), and one count of making a false statement to a federal agent in violation of 18 U.S.C. § 1001. The indictment alleged that between November 1, 1995 and November 1, 1996, defendant fraudulently forged and cashed Supplemental Security Income ("SSI") checks from the Social Security Administration totaling $5,073.25 that were made payable to Joseph Newman.

After a two-day jury trial, defendant was found guilty on all five counts of the indictment. Defendant's presentence report reflected an offense level of 14 and a criminal history category of I, which, in the absence of any departures, would have resulted in a sentencing range of 15 to 21 months. The government moved for an upward departure.

After a two-day evidentiary hearing, the district court concluded that defendant murdered Newman and that the murder constituted relevant conduct because it facilitated the fraud offense for which he was convicted. The district court accordingly increased defendant's base offense level by 23 to level 37 pursuant to U.S.S.G. § 5K2.1 because a death resulted. The district court also granted the government's motion to increase defendant's criminal history category based upon the court's finding that defendant was responsible for the death of Brett Woehlk in 1990 and the death of Harrison Hazzard in 1994. The district court determined that application of the Sentencing Guidelines would not accurately reflect the seriousness of defendant's criminal history or the danger he posed to others. The district court accordingly adjusted defendant's criminal history from category I to category IV. The resulting sentencing range was between 292 and 365 months. The district court imposed a sentence of 360 months, consisting of consecutive terms of five years of imprisonment on each of counts one, two three, and five, and ten years on count four pursuant to U.S.S.G. § 5G1.2(d).

On appeal defendant does not contest his underlying conviction or the pre-departure Sentencing Guideline calculations. His challenges relate solely to the district court's upward departures from the Sentencing Guidelines.

II.

The district court's upward departures were based upon its finding that the government had proved that defendant murdered Woehlk, Hazzard and Newman.¹ On appeal, defendant argues that the evidence was not sufficient to enable the district court to make these findings.

The standard governing our review of a sentence is established by statute:

The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court's application of the guidelines to the facts.

18 U.S.C. § 3742(e). Accordingly, when reviewing a district court's sentencing decisions, we "will disturb the underlying factual findings only if they are clearly erroneous." United States v. Ennenga, 263 F.3d 499, 502 (6th Cir.2001) (quoting United States v. Hill, 79 F.3d 1477, 1481 (6th Cir.1996)).

Defendant contends that the district court's finding that he murdered the three individuals was clearly erroneous because the evidence was not sufficient to meet the clear and convincing standard of proof. The Supreme Court has held that application of the preponderance standard at sentencing generally satisfies due process. United States v. Watts, 519 U.S. 148, 156, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (citing McMillan v. Pennsylvania, 477 U.S. 79, 91-92, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986); Nichols v. United States, 511 U.S. 738, 747-748, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994)). The Court did acknowledge in Watts, however, that there was "a divergence of opinion among the Circuits as to whether, in extreme circumstances, relevant conduct that would dramatically increase the sentence must be based on clear and convincing evidence." 519 U.S. at 156 & n. 2, 117 S.Ct. 633 (citing cases).

Defendant relies on United States v. Kikumura, 918 F.2d 1084 (3d Cir.1990), in support of his contention that the evidence relied on at sentencing must be measured against the clear and convincing standard because the evidence had a dramatic effect on his sentence. In Kikumura, the Third Circuit held that in an extreme context, such as where the sentencing court's findings would increase the sentence from 30 months to 30 years, the sentencing court must apply the clear and convincing standard of proof in order to satisfy its obligation to make findings under 18 U.S.C. § 3553(b). Kikumura, 918 F.2d at 1100-01. See also United States v. Hopper, 177 F.3d 824, 833 (9th Cir.1999) (requiring proof by clear and convincing evidence in exceptional cases "when a sentencing factor has an extremely disproportionate effect on the sentence relative to the offense of conviction.").

Although the case before us undeniably presents one of those exceptional situations where the sentencing factor has a disproportionate effect on the sentence relative to the offense of conviction, this Circuit has previously rejected the invitation to adopt a higher standard of proof simply because the enhancement would significantly increase the defendant's sentence. United States v. Graham, 275 F.3d 490, 517 n. 19 (6th Cir.2001). We pointed out in Graham that as long as a sentencing factor does not alter the statutory range of penalties faced by the defendant for the crime of which he was convicted, the Supreme Court permits the factor to be found by a preponderance of the evidence. Id. Accord United States v. Layne, 324 F.3d 464, 473 (6th Cir.2003) (following Graham). See also United States v. Cordoba-Murgas, 233 F.3d 704, 708-09 (2d Cir.2000) (rejecting clear and convincing evidentiary standard at sentencing for uncharged murders); United States v. Valdez, 225 F.3d 1137, 1143 n. 2 (10th Cir. 2000) (rejecting clear and convincing evidence standard at sentencing even though relevant conduct dramatically increased sentence).

The district court, in an abundance of caution, made its findings under both the preponderance of the evidence standard and the more exacting clear and convincing standard. Based upon the reasoning in Graham, we will review the sufficiency of the evidence only under the preponderance of the evidence standard.

A. Brett Woehlk

The government presented evidence that, in 1990, defendant was the manager of the Farm Store, a convenience food store, in Tampa, Florida. Brett Woehlk was his employee. On Tuesday, April 3, 1990, defendant called his supervisor, Mary Abed, to report that the store's safe had been robbed of the previous day's receipts. Further investigation revealed that the bank had not received the deposits on Friday, March 30, or Sunday, April 1. Defendant said Woehlk must have been responsible for the theft because defendant sent Woehlk to make the deposits on Friday and Sunday nights and because Woehlk was the only person other than defendant who had keys to the store and the combination to the safe.

Abed testified that defendant's report of the $11,000 in missing receipts raised her suspicions. When defendant opened the store on Saturday morning, he had sufficient change to operate the store for the day, which would indicate that the deposit was not made on Friday night. It was also against store policy to make deposits at night. Abed testified that the Friday night deposit should not have been made until Saturday afternoon, after defendant's shift. Abed also found it suspicious that although defendant went to the bank on Monday to make a deposit, he failed to obtain the verified deposit slips from the weekend even though he had always complied with this requirement in the past. Abed contacted her supervisor, Diane Binde. Binde testified that when she interviewed defendant, he told her that he had been at the store until 2:00 a.m. Monday morning, wiping down his car. Binde found this story peculiar because defendant was scheduled to be at the store at 4:30 a.m. that same morning to open. Binde suspended defendant from his employment.

Woehlk was last seen by his mother before he went to work on the evening of Sunday, April 1, 1990. Woehlk did not show up at his girlfriend's house that night as planned. Woehlk's car was found a few blocks from the Farm Store on Tuesday, April 3, 1990, with empty Farm Store bank bags in it. Woehlk's body was found on April 7, 1990, 266 feet off the road, clothed in a Farm Store shirt, wrapped in a carpet and covered with a piece of plywood. He had seven knife wounds, including a slash to his throat.

George McNamara, a police investigator, testified that he observed two people watching the police at the crime scene. The individuals were identified as defendant and his live-in partner, Paul DeLay. During questioning, DeLay told the police that when defendant came home in the early morning hours of Monday, April 2, 1990, he had blood on his hands and took a shower. DeLay told police that defendant...