U.S. v. Villareal-Amarillas

Citation562 F.3d 892
Decision Date09 April 2009
Docket NumberNo. 07-3616.,No. 07-3741.,07-3616.,07-3741.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Manuel VILLAREAL-AMARILLAS, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Juan H. Gonzalez, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

David R. Mercer, Asst. Fed. Public Defender, Springfield, MO (Raymond C. Conrad, Jr., Fed. Public Defender, Kansas City, MO, on the brief), for appellant Manuel Villareal-Amarillas.

Angela D. Acree, CJA Panel Atty., Springfield, MO, for appellant Juan H. Gonzalez.

Robyn L. McKee, Asst. U.S. Atty., Springfield, MO (John F. Wood, U.S. Atty., Kansas City, MO, on the brief), for appellee.

Before LOKEN, Chief Judge, BEAM and ARNOLD, Circuit Judges.

LOKEN, Chief Judge.

Manuel Villareal-Amarillas and Juan Gonzalez pleaded guilty to conspiring to distribute more than 500 grams of methamphetamine. At sentencing, a police officer and three cooperating witnesses testified that the conspirators in fact distributed more than fifteen kilograms of methamphetamine, but the district court limited its drug quantity finding to the amount admitted in the guilty pleas — more than 500 grams but less than 1.5 kilograms of methamphetamine. The government appealed the resulting sentences. We vacated the sentences and remanded for more specific drug quantity findings. United States v. Villareal-Amarillas, 454 F.3d 925, 930-32 (8th Cir. 2006), cert. denied, 549 U.S. 1137, 127 S.Ct. 989, 166 L.Ed.2d 747 (2007).

On remand, the district court1 found both Villareal-Amarillas and Gonzalez responsible for more than fifteen kilograms of methamphetamine. This increased their offense levels to forty-one and thirty-seven, respectively, resulting in advisory guidelines sentencing ranges of 360 months to life in prison for Villareal-Amarillas and 235-293 months in prison for Gonzalez. The district court sentenced Villareal-Amarillas to 360 months and Gonzalez to 235 months in prison. They appeal these sentences, arguing (1) the district court violated due process when it refused to require proof of drug quantity facts by clear and convincing evidence; and (2) the court committed procedural plain error by not assessing individually the sentencing factors prescribed in 18 U.S.C. § 3553(a). We affirm.

I. The Due Process Issue

Villareal-Amarillas and Gonzalez argue that the district court violated their right to due process by not requiring the government to prove drug quantity by clear and convincing evidence. Villareal-Amarillas's contention is plainly without merit. He admitted in the plea agreement a base offense level of "at least 37" and a criminal history category of VI because he is a career offender under U.S.S.G. § 4B1.1. With no guidelines adjustment, the career offender admission subjected him to an advisory guidelines sentencing range of 360 months to life in prison. See U.S.S.G. Ch. 5, Pt. A, Sentencing Table. Thus, whether facts found at sentencing by a preponderance of the evidence produced upward and downward adjustments that resulted in the same advisory range raises no due process concerns whatsoever. On the other hand, the district court's drug quantity finding did increase Gonzalez's advisory sentencing range from 121-151 months to 235-293 months in prison. The issue is whether due process required the government to prove by clear and convincing evidence facts that produced so substantial an increase in his advisory guidelines range.

Under the prior mandatory Guidelines regime, we repeatedly held "that the facts relied upon by the district court at sentencing need be proved only by a preponderance of the evidence." United States v. Wise, 976 F.2d 393, 400 (8th Cir.1992) (en banc); United States v. Gooden, 892 F.2d 725, 727-28 (8th Cir.1989), cert. denied, 496 U.S. 908, 110 S.Ct. 2594, 110 L.Ed.2d 274 (1990). However, for many years, we have recognized, but never applied, an exception to this general standard — due process requires that sentencing determinations "that have an `extremely disproportionate' effect on a defendant's sentence" be proved by clear and convincing evidence. United States v. Garth, 540 F.3d 766, 773 (8th Cir.2008). As we will explain, this principle derives from a misreading of the Supreme Court's decision in McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). We now join three other circuits in concluding that, even if valid when the Guidelines were mandatory, this principle did not survive the Supreme Court's recent decisions in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

1. The Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). However, once the defendant has been convicted beyond a reasonable doubt, "[s]entencing courts have traditionally heard evidence and found facts without any prescribed burden of proof at all." McMillan, 477 U.S. at 91, 106 S.Ct. 2411.

In McMillan, the Court held that due process did not require proof beyond a reasonable doubt of a fact Pennsylvania's mandatory minimum sentencing act labeled a sentencing factor — visible possession of a firearm during the offense. It is the legislature's prerogative to define sentencing factors that are not elements of the offense, the Court explained, unless the statute is tailored so that a sentencing factor is "a tail which wags the dog of the substantive offense." Id. at 88, 106 S.Ct. 2411. The Court then turned to petitioners' "subsidiary claim" — that the sentencing factor must be proved by clear and convincing evidence, a standard that "is no stranger to the civil law." Addington v. Texas, 441 U.S. 418, 424, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) (quotation omitted). Distinguishing Addington, a civil commitment case, because sentencing occurs only after a criminal defendant has been convicted, the Court had "little difficulty" concluding that the preponderance standard satisfied due process. "[E]mbracing petitioners' suggestion that we apply the clear-and-convincing standard here would significantly alter criminal sentencing, for we see no way to distinguish the visible possession finding at issue here from a host of other express or implied findings sentencing judges typically make on the way to passing sentence." 477 U.S. at 92 n. 8, 106 S.Ct. 2411.

Four years later, the Third Circuit reviewed a federal sentence that included an upward departure of nearly thirty years from the mandatory guidelines range, based upon facts the district court found by a preponderance of the evidence. Defendant had not raised the principal issue in McMillan — whether the facts were elements of the crime that must be proved beyond a reasonable doubt. However, borrowing the "tail wags the dog" passage from that discussion in McMillan, the Third Circuit held that the clear and convincing evidence standard was "implicit in the statutory requirement" of findings that justify a guidelines departure. The court "reserve[d] judgment on the question whether it is also implicit in the due process clause itself." United States v. Kikumura, 918 F.2d 1084, 1102 (3d Cir.1990). The lengthy opinion made no mention of McMillan's summary rejection of the clear and convincing evidence standard of proof.

Not every circuit embraced Kikumura's distortion of the Supreme Court's analysis in McMillan.2 But we did. Relying on the "tail wags the dog" passage in McMillan, as misapplied in Kikumura, we soon recognized "the possibility that in an exceptional case, such as this one, the clear and convincing standard adopted by our sister circuit might apply." United States v. Townley, 929 F.2d 365, 370 (8th Cir. 1991). In United States v. Galloway, 976 F.2d 414, 425-26 (8th Cir.1992) (en banc), we subsequently held that relevant conduct, as defined in the Guidelines, may be proved at sentencing by a preponderance of the evidence. But we noted decisions in other circuits, including Kikumura, suggesting that due process may require a heightened standard of proof for "extremely disproportionate" sentencing factors. Accord Wise, 976 F.2d at 401. We concluded in Galloway that "[a]ny due process boundaries" were not breached by relevant conduct findings that increased the guidelines range from 21-27 months to 63-78 months. Id. at 426.

From these weak roots grew a due process exception to guidelines fact-finding by a preponderance of the evidence, an exception that rested on a "tail wags the dog" passage in McMillan addressing an entirely different issue. See, e.g., United States v. Coleman, 990 F.2d 419, 421 (8th Cir. 1993). We have never applied this exception, but even our post-Booker decisions have continued to suggest its validity, which understandably prompts defense counsel to continue to raise the issue on appeal, as in these cases. See, e.g., Garth, 540 F.3d at 773; United States v. Howe, 538 F.3d 842, 856 (8th Cir.2008); United States v. Bradford, 499 F.3d 910, 919-20 (8th Cir.2007), cert. denied, ___ U.S. ___, 128 S.Ct. 1446, 170 L.Ed.2d 278 (2008). We conclude it is time to end the dance.3

2. In our view, Part III of the opinion in McMillan, 477 U.S. at 91-93, 106 S.Ct. 2411, stands for the proposition that due process never requires applying the clear and convincing evidence standard to judicial fact-finding at criminal sentencing. If a sentencing factor is an element of the offense, Part II of the opinion in McMillan and later cases such as Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), establish that the Fifth Amendment and the Sixth Amendment require that the relevant facts be proved to a jury beyond a reasonable doubt at trial. But if the factor is not an element of the offense, the relevant facts may be...

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