United States v. Scheiblich, Case No. 2:18-CR-28(1)
| Decision Date | 01 November 2018 |
| Docket Number | Case No. 2:18-CR-28(1) |
| Citation | 346 F.Supp.3d 1076 |
| Parties | UNITED STATES of America Plaintiff, v. Robert J. SCHEIBLICH, Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
Noah R Litton, United States Attorney's Office, Peter K. Glenn-Applegate, U.S. Department of Justice, Columbus, OH, for Plaintiff.
Toure McCord, McCord & Akamine LLP, Columbus, OH, for Defendant.
Defendant Robert Scheiblich pleaded guilty in this Court on July 6, 2018, to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1). The United States Sentencing Guidelines provide that the base offense level for a violation of 18 U.S.C. § 922(g)(1) is 14, and he was eligible for a downward adjustment of 3 levels for acceptance of responsibility. U.S. SENTENCING GUIDELINES MANUAL § 2K2.1(a)(6) ( U.S. SENTENCING COMM'N 2004) (hereafter U.S.S.G). Thus, Mr. Scheiblich expected that, for his criminal history category of III and an adjusted offense level of 11, his sentence would be in the range of 12 – 18 months.
That expectation was thwarted when the Probation Office released its Presentence Report, which recommended a sentence of 10 years. The Government and the Probation Office reasoned that Mr. Scheiblich should be held accountable not only for the underlying offense, but also for an offense charged in the Franklin County Common Pleas Court for Aggravated Robbery, Robbery, Felonious Assault, and Kidnapping. (State v. Scheiblich , Dkt. No. 18-cr-229). Trial is pending in the state court matter, and Mr. Scheiblich denies the charges. Nevertheless, the Government argues that the firearm cited in the offense of conviction was used in the crime charged in state court It concludes, therefore, that this Court should apply the cross-reference provision at U.S.S.G. § 2K2.1(c)(1)(A) and sentence Mr. Scheiblich for the underlying charge as well as for conduct he neither admits nor has a jury found occurred: the crime of Attempted Murder or Assault With Attempt to Murder.
Mr. Scheiblich raised his objection to the Presentence Report in Court on October 12, 2018. The Court heard oral argument on the Objection on October 19, 2018. (ECF No. 55). For the reasons articulated below, the Court GRANTED Mr. Scheiblich's objection, DECLINED to apply the cross-reference, and SENTENCED Mr. Scheiblich to 30 months incarceration and three years of supervised release.
Robert Scheiblich has admitted, pursuant to a plea agreement, that he was a Felon in Possession of a Firearm on or about the dates of December 22, 2017, to December 24, 2017, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). His possession of the Ruger GP100 .357 caliber revolver at issue in the offense was established through DNA evidence found on the firearm.
The Government contends that the firearm was also used during the commission of another crime: the attempted murder of Jesse James. The following allegations are contained in the Presentence Report: On December 23, 2017, law enforcement responded to 911 calls reporting gunshots in Galloway, Ohio. Police arrived to find an individual named Jesse James bleeding, but still alive and conscious, on the side of the road. In response to police questioning, Mr. James told law enforcement officers that he had been robbed by Mr. Scheiblich and his son, Dillon, and had been beaten with a baseball bat at their residence before having been driven to his current location. Mr. James also reported that he had been shot, but medical evidence suggested otherwise—the Government claims he was pistol whipped. (ECF No. 54 at 9). Mr. James was transported to the hospital, but left the hospital three days later against medical advice. On December 27, Mr. James was found dead, wearing only his hospital gown, in an abandoned car several blocks from the hospital. The coroner identified his cause of death as hypothermia
.
Mr. Scheiblich faces prosecution for the above allegations in the Franklin County Common Pleas Court. He denies the charges.
The Government argued that the Court should adopt the recommendation of the Probation Office, which calculated the Guidelines range as follows:
The defendant pled guilty to Being a Felon in Possession of a Firearm. The guideline for a violation of 18 U.S.C § 922(g)(1) is U.S.S.G, § 2K2.1. Pursuant to the cross reference at U.S.S.G. § 2K2.1(c)(1)(A), apply U.S.S.G. § 2X1.1 (Attempt, Solicitation or Conspiracy), if the defendant used or possessed any firearm or ammunition cited in the offense of conviction in connection with the commission of another offense, if the resulting offense level is greater than that determined under U.S.S.G. § 2K2.1. To determine the base offense level under U.S.S.G. § 2X1.1, the guideline for the substantive offense, plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty is applied. The defendant is accountable for the Attempted Murder or Assault With Intent to Commit Murder of Jesse James; therefore, U.S.S.G. § 2A2.1 is used to determine the offense level because it results in a higher offense level. This conduct represents the acts Scheiblich aided, abetted, counseled, commanded, induced and willfully caused during the offense of conviction, as per U.S.S.G. § 1B1.3(a)(1)(A), and the conduct attributable to him in the jointly undertaken criminal activity, as per U.S.S.G. §§ 1B1.3(a)(1)(B)(i) through (iii). The base offense level is 33, if the object of the offense would have constituted first degree murder, as per U.S.S. G. § 2A2.1(a)(1).
Mr. Scheiblich argues that the cross-reference provision should not be used to enhance his offense level because the facts related to the robbery and assault are not contained in the underlying Plea Agreement and because he is Constitutionally entitled to a full fact-finding process on the disputed charges.
First, Mr. Scheiblich argues that the relevant facts the Court may take into consideration are only those facts contained in the Plea Agreement. This conclusion is foreclosed by the Supreme Court's holding in United States v. Watts . In Watts , the Court concluded that a sentencing court may even consider acquitted conduct as long as the sentencing court determines the facts are proven by a preponderance of the evidence:
For these reasons, "an acquittal in a criminal case does not preclude the Government from relitigating an issue when it is presented in a subsequent action governed by a lower standard of proof." .... The Guidelines state that it is "appropriate" that facts relevant to sentencing be proved by a preponderance of the evidence, USSG § 6A1.3, comment., and we have 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) (internal citations omitted). In Booker , a majority of the Court concluded that the Sixth Amendment barred any judicial fact-finding pursuant to the Guidelines that would increase a defendant's sentencing range beyond what the Guidelines would mandate based solely on facts admitted to in the plea agreement. See United States v. White , 551 F.3d 381, 384 (6th Cir. 2008) (en banc). Booker , of course, also held that the Guidelines were advisory, so courts were left to determine whether and how to rely on conduct not admitted to by the defendant or found by a jury in an advisory guidelines system. The outcome in the Sixth Circuit was this: "So long as the defendant receives a sentence at or below the statutory ceiling set by the jury's verdict, the district court does not abridge the defendant's right to a jury trial by looking to other facts, including acquitted conduct, when selecting a sentence within that statutory range." Id. at 385.
Whether actually to apply the cross-reference, however, remains a matter of discretion for the Court. As the en banc Sixth Circuit held in White :
To say that district court judges may enhance a defendant's sentence based on acquitted conduct, however, is not to say that they must do so. First, and most obviously, a factual presentation that fails to persuade a jury beyond a reasonable doubt may well fail to persuade a judge by a preponderance of the evidence. Second, one of the central points of Booker , highlighted by Kimbrough v. United States , 552 U.S. 85, 128 S.Ct. 558, 564, 169 L.Ed.2d 481 (2007), is that a district court judge may disagree with the application of the Guidelines to a particular defendant because the Guidelines range is too high or too low to accomplish the purposes set forth in § 3553(a). If the district court judge concludes that the sentence produced in part by these "relevant conduct" enhancements "fails properly to reflect § 3553(a) considerations," Rita v. United States , 551 U.S. 338, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007), the judge may impose a lower sentence, including, if reasonable, a lower sentence that effectively negates the acquitted-conduct enhancement, Third, a district court that enhances a sentence based on acquitted conduct, in fulfilling its duty to "adequately explain the chosen sentence to ... promote the perception of fair sentencing," Gall v. United States , 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007), should articulate how and why, in its judgment, such conduct appropriately influenced its § 3553(a) analysis with respect to the specific defendant and specific crime at issue.
Here, for the reasons articulated below, the Government's factual presentation did not prove by a...
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