United States v. McClinton, 011222 FED7, 20-2860

Docket Nº20-2860
Opinion JudgeRovner, Circuit Judge.
Party NameUnited States of America, Plaintiff-Appellee, v. Dayonta McClinton, Defendant-Appellant.
Judge PanelBefore Easterbrook, Rovner, and Wood, Circuit Judges.
Case DateJanuary 12, 2022
CourtUnited States Courts of Appeals, United States Court of Appeals (7th Circuit)

United States of America, Plaintiff-Appellee,

v.

Dayonta McClinton, Defendant-Appellant.

No. 20-2860

United States Court of Appeals, Seventh Circuit

January 12, 2022

Argued October 25, 2021

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:18-cr-00252-TWP-MJD-1 - Tanya Walton Pratt, Chief Judge.

Before Easterbrook, Rovner, and Wood, Circuit Judges.

Rovner, Circuit Judge.

In search of pharmaceutical drugs, Dayonta McClinton and five accomplices, Marvin Golden, Malik Perry, Larry Warren, Willonte Yates, and an unnamed getaway driver robbed a CVS pharmacy at around eight o'clock in the evening of October 13, 2015. The robbers pointed guns at customers, grabbed purses and wallets, and demanded their cell phones, which they stomped to prevent calls to police. But all did not go as planned. One customer

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fled, and although Yates chased after her, she escaped by jumping a fence and running to a nearby restaurant. Yates returned and told the others to hurry up. He and Warren took money from the cash register, but the drugs proved harder to acquire than they had thought. One of the gang pointed a gun at a pharmacy technician and demanded drugs, but the technician informed him that the majority of the drugs that the crew wanted were kept in a time-delay safe. He did give one of the robbers one bottle of hydrocodone, which the pharmacy kept outside the safe pursuant to store policy for this exact purpose-to mollify robbers who might become agitated when the safe would not open. The policy turned out to be prescient. When the pharmacist entered the passcode and the safe would not open, the robbers became agitated, banging on the counter and knocking over a cabinet. To appease the robbers, the pharmacist additionally offered promethazine syrup and acetaminophen-both with codeine, neither of which were in the safe. Worried about time, the robbers left before the safe opened. Perry had possession of the few drugs that the robbers were able to acquire before leaving the pharmacy.

The team of robbers drove to an alley about ten minutes away to split the proceeds. McClinton and Perry began arguing over the disappointing haul when Perry declared "ain't nobody getting none," and exited the car with all of the drugs. McClinton followed Perry out of the car and shot him four times in the back, killing him. Golden, Warren, and Yates exited the car and ran away. The following day at a dice game, McClinton told another player, that the group had "hit a pharmacy" the night before, and that he shot Perry after they got into a dispute about splitting the proceeds.

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After transfer to adult court (McClinton was three months away from his eighteenth birthday at the time of the robbery), a jury found McClinton guilty of robbing the CVS in violation of 18 U.S.C. § 1951(a); and brandishing a firearm during the CVS robbery in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The jury found him not guilty of the indicted crimes of robbery of Perry, in violation of 18 U.S.C. § 1951(a), and causing death while using a firearm during and in relation to the robbery of Perry, in violation of 18 U.S.C. § 924(j)(1). At sentencing, the district court concluded, using a preponderance of the evidence standard, that McClinton was responsible for Perry's murder. The district court judge therefore enhanced McClinton's offense level from 23 to 43, but also varied downward to account for McClinton's age and the sentences of his co-defendants, ultimately sentencing him to 228 months in prison.

McClinton asks us to consider two questions. First, whether the district court could consider conduct for which McClinton was acquitted for purposes of calculating his sentence. The second is whether McClinton's counsel was ineffective during his juvenile transfer proceeding.

A. The use of acquitted conduct in sentencing

The Supreme Court has held 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." United States v. Watts, 519 U.S. 148, 157 (1997). The holdings in this circuit have followed this precedent, as they must. See, e.g., United States v. Slone, 990 F.3d 568, 572 (7th Cir. 2021), cert. denied, No. 20-8280, 2021 WL 4508213 (Oct. 4, 2021) (noting that "sentencing courts may consider acquitted

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conduct provided that its findings are supported by a preponderance of the evidence.").

Despite this clear precedent, McClinton's contention is not frivolous. It preserves for Supreme Court review an argument that has garnered increasing support among many circuit court judges and Supreme Court Justices, who in dissenting and concurring opinions, have questioned the fairness and constitutionality of allowing courts to factor acquitted conduct into sentencing calculations. See, e.g.,

Jones v. United States, 574 U.S. 948, 949-50 (2014) (Scalia, J., joined by Thomas & Ginsburg, JJ., dissenting from the denial of cert.) (noting that it violates the Sixth Amendment when the conduct used to increase a defendant's penalty is found by a judge rather than by a jury beyond a reasonable doubt, and highlighting that this is particularly so when the facts leading to a substantively unreasonable sentence are ones for which a jury has acquitted the defendant); Watts, 519 U.S. at 170 (Kennedy, J., dissenting) (allowing district judges "to increase a sentence based on conduct underlying a charge for which the defendant was acquitted does raise concerns...

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