U.S. v. White

• Decision Date: 24 December 2008
• Docket Number: No. 05-6596.,05-6596.
• Citation: 551 F.3d 381
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roger Clayton WHITE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

551 F.3d 381

UNITED STATES of America, Plaintiff-Appellee, v. Roger Clayton WHITE, Defendant-Appellant.

No. 05-6596.

United States Court of Appeals, Sixth Circuit.

Argued: June 4, 2008.

Decided and Filed: December 24, 2008.

ARGUED:

Kevin M. Schad, Schad & Schad, Lebanon, Ohio, for Appellant. Nina Goodman, United States Department of Justice, Washington, D.C., for Appellee. Douglas A. Berman, The Ohio State University, Moritz College of Law, Columbus, Ohio, for Amicus Curiae.

ON BRIEF:

Kevin M. Schad, Schad & Schad, Lebanon, Ohio, for Appellant. Charles P. Wisdom, Jr., Andrew Sparks, Assistant United States Attorneys, Lexington, Kentucky, Nina Goodman, United States Department of Justice, Washington, D.C., for Appellee. Douglas A. Berman, The Ohio State University, Moritz College of Law, Columbus, Ohio, Mark D. Harris, Jeffery A. Gross, Anna G. Kaminska, Proskauer Rose LLP, New York, New York, for Amicus Curiae.

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

COOK, J., delivered the opinion of the court, in which BOGGS, C.J., BATCHELDER, GILMAN, GIBBONS, ROGERS, SUTTON, McKEAGUE, and GRIFFIN, JJ., joined. MERRITT, J. (pp 386-97), delivered a separate dissenting opinion, in which MARTIN, DAUGHTREY, MOORE, COLE, and CLAY, JJ., joined.

OPINION

COOK, Circuit Judge.

This is a sentencing appeal. When a jury convicted Roger Clayton White of two counts, but acquitted him of others, the district court looked to conduct underlying the acquitted counts to enhance White's offense level under the Sentencing Guidelines. White questions whether this practice withstands Sixth Amendment scrutiny, and we hold that it does so long as the resulting sentence does not exceed the jury-authorized United States Code maximums.

I

White waited in a car armed with a 9mm rifle while his brother, Jeffrey, and Jeffrey's girlfriend, Laurie Fischer, robbed a bank of more than $100,000, holding two bank tellers at gunpoint and firing a shot near one teller's head. White drove the getaway car and led police on a lengthy high-speed chase that included shots fired from the car at pursuing officers. The chase ended only when White crashed into a roadblock. United States v. White, 134 Fed.Appx. 880, 882 (6th Cir.2005). A jury found White guilty of just two of six charges: armed robbery, which carried a maximum sentence of twenty-five years, 18 U.S.C. § 2113(d), and possessing a firearm with the serial number removed, with a five-year maximum, id. § 922(k).

Applying the Guidelines' relevant-conduct principles in sentencing White, see U.S.S.G. § 1B1.3 (2002 ed.), the court determined that uncontested evidence of shots being fired in the bank and at pursuing officers warranted certain offense-level enhancements: seven levels for discharging a firearm during the robbery, id. § 2B3.1(b)(2), and three levels for assaulting a law enforcement officer during flight, id. § 3A1.2(b)(1). The court justified using acquitted conduct to enhance White's sentence by saying, "[W]hile [White] was acquitted of the conduct relating to the discharge of the firearm in the vault and then during the chase ... he aided and abetted that conduct, and it was reasonably foreseeable to him that ... in furtherance of the jointly undertaken criminal activity that guns would be not only brandished but discharged."

When addressing the 18 U.S.C. § 3553(a) factors, the court also noted how the use of firearms in the bank and during flight "placed in jeopardy the lives of several innocent persons." Far from "a garden variety bank robbery," the court viewed White's offense as "probably one of the most egregious bank robberies" it had ever seen, concluding that "the lives of the folks that were inside that bank have been forever changed by [White's] and others' conduct ... [and] anything less than [a 264-month sentence] would not promote respect for the law, [and would] minimize the trauma and pain and suffering by the victims."

White appealed, contending that the district court improperly considered acquitted conduct. The panel reviewing his appeal, with some expressed misgivings, adhered to earlier precedent on the issue, see United States v. Mendez, 498 F.3d 423 (6th Cir.2007) (per curiam), while urging en banc consideration. Recognizing that the acquitted-conduct issue presents a "question of exceptional importance," Fed. R.App. P. 35(a)(2), the full court agreed to reconsider the Mendez holding.¹ United States v. White, 503 F.3d 487 (6th Cir. 2007), reh'g en banc granted, op. withdrawn, 503 F.3d 487 (6th Cir. Nov.30, 2007).

II

First, Mendez. A grand jury charged Victor Mendez with conspiracy to distribute 500 grams or more of a substance containing methamphetamine. 498 F.3d at 425. The jury foreman checked "yes" on the verdict form to indicate that the government proved beyond a reasonable doubt at least 50 grams, but checked "no" to indicate that the government failed to prove the offense involved at least 500 grams. Id. The Presentence Report ("PSR") nevertheless relied on trial testimony to attribute 2.95 kilograms to Mendez, prompting his objection to a sentence grounded on a drug quantity not found beyond a reasonable doubt by the jury. Id. Concluding that the PSR accurately reflected facts proved by a preponderance of the evidence, the district court overruled the objection and sentenced Mendez to the low end of the applicable Guidelines range. See id. at 425 & n. 1. On appeal, a panel of this court rejected the defendant's Sixth Amendment right-to-trial-by-jury challenge, sanctioning the district court's use of acquitted conduct in calculating an advisory Guidelines range. Id. at 426-27 & n. 2. The Mendez panel reached this holding by relying on United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (per curiam), which the Supreme Court decided after Congress passed the Sentencing Reform Act ("SRA").

Though Watts examined this issue from a double-jeopardy perspective, Watts regarded acquitted conduct as providing the sentencing court with "[h]ighly relevant— if not essential .. . information." 519 U.S. at 151-52, 117 S.Ct. 633 (internal quotation marks omitted). Relying on the different standards of proof that govern at trial versus sentencing, the Court concluded "that a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence." Id. at 157, 117 S.Ct. 633.

Watts preceded United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), but the Booker majority, which held that the mandatory guideline system was unconstitutional, viewed the two decisions as not inconsistent. Id. at 240-41, 125 S.Ct. 738. This circuit likewise recognizes Watts's continued vitality post-Booker, repeatedly holding "that sentencing courts may still find facts using the preponderance-of-the-evidence standard." Mendez, 498 F.3d at 426-27 (citing, e.g., United States v. Gates, 461 F.3d 703, 708 (6th Cir.2006)); see also United States v. Brika, 487 F.3d 450, 458-60 (6th Cir.) (holding that Booker did not disturb Watts and that a post-Booker court may consider even acquitted conduct if it finds facts supporting that conduct by a preponderance of the evidence), cert. denied, ___ U.S. ___, 128 S.Ct. 341, 169 L.Ed.2d 239 (2007).

Mendez accords with the view expressed by each of our sister circuits that Booker did not alter the Watts position on acquitted conduct: "Watts remains good law." United States v. Magallanez, 408 F.3d 672, 684 n. 1 (10th Cir.2005); see, e.g., United States v. Faust, 456 F.3d 1342, 1348 (11th Cir.2006) (same); United States v. Hayward, 177 Fed.Appx. 214, 215 (3d Cir.2006) (same); United States v. Ashworth, 139 Fed.Appx. 525, 527 (4th Cir.2005) (same). The "core principle of Watts lives on and [a] district court [may] constitutionally consider ... acquitted conduct." United States v. Mercado, 474 F.3d 654, 657 (9th Cir.2007), cert. denied, ___ U.S. ___, 128 S.Ct. 1736, 170 L.Ed.2d 542 (2008); see also United States v. Settles, 530 F.3d 920, 923 (D.C.Cir.2008) (same); United States v. Horne, 474 F.3d 1004, 1006-07 (7th Cir.) (same), cert. denied, ___ U.S. ___, 127 S.Ct. 2957, 168 L.Ed.2d 279 (2007); United States v. Farias, 469 F.3d 393, 399 (5th Cir.2006) (same); United States v. Gobbi, 471 F.3d 302, 313-14 (1st Cir.2006) ("Post-Booker, the law has not changed ...; acquitted conduct, if proved by a preponderance of the evidence, still may form the basis for a sentencing enhancement."); United States v. Vaughn, 430 F.3d 518, 527 (2d Cir.2005) ("[D]istrict courts may find facts relevant to sentencing by a preponderance of the evidence, even where the jury acquitted the defendant of that conduct. ...").

The dissent sees things differently. It concedes that Watts survived Booker and that Watts rejected (and continues to reject) a Fifth Amendment double-jeopardy challenge to the use of acquitted conduct at sentencing. But it insists that Watts is irrelevant here because White premises his argument not on the Fifth Amendment, but on the Sixth Amendment. In one sense, the dissent is correct. As Booker itself recognized, Watts's rejection of a double-jeopardy challenge to the use of acquitted conduct at sentencing did not close the door on subsequent Sixth Amendment challenges to sentences based on judge-found facts. Booker, 543 U.S. at 240-41 & n. 4, 125 S.Ct. 738. Thus, although a court may properly look to facts underlying acquitted conduct in sentencing, the Sixth Amendment remains a backstop. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ("[A]ny fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."); see also Blakely v. Washington, 542 U.S....