23 F.4th 732
7th Cir.2022Background
- On Oct. 13, 2015 a group robbed a CVS at gunpoint to steal cash and pharmaceuticals; much of the sought-after stock was in a time-delay safe.
- The robbers obtained a small quantity of drugs and cash; a dispute about splitting the haul followed shortly thereafter.
- McClinton shot and killed co-participant Malik Perry after Perry tried to leave with the drugs; McClinton later admitted the robbery and the shooting to a third party.
- McClinton (then nearly 18) was convicted by a jury of robbing the CVS and brandishing a firearm during the robbery, but acquitted of robbery of Perry and causing Perry’s death.
- At sentencing the district court, by a preponderance of the evidence, found McClinton responsible for Perry’s murder, increased his offense level substantially, and imposed a 228-month sentence.
- On appeal McClinton challenged (1) the use of acquitted conduct (the murder) in sentencing, and (2) effectiveness of the lawyer who handled his juvenile transfer proceeding.
Issues
| Issue | McClinton's Argument | Government's Argument | Held |
|---|---|---|---|
| Use of acquitted conduct in sentencing | Court may not rely on conduct underlying an acquitted charge to increase sentence; violates jury-trial/Sixth Amendment protections | Watts permits consideration of acquitted conduct if proven by a preponderance; sentencing judge may find relevant conduct | Court affirmed: under Watts and circuit precedent, judge properly used preponderance standard to treat Perry’s murder as relevant conduct for sentencing |
| Ineffective assistance re: juvenile-transfer counsel | Counsel was ineffective for failing to appeal the juvenile-court transfer to adult court | Ineffective-assistance claims requiring extra-record proof must be raised collaterally (§2255/Massaro); raising on direct appeal is doomed and withdrawal preserved claim | Court held counsel properly withdrew the claim on direct appeal; directed McClinton to pursue a §2255 collateral proceeding if he wishes |
Key Cases Cited
- United States v. Watts, 519 U.S. 148 (1997) (Supreme Court: sentencing courts may consider acquitted conduct proved by a preponderance)
- United States v. Slone, 990 F.3d 568 (7th Cir. 2021) (reaffirms that sentencing courts may rely on acquitted conduct if supported by a preponderance)
- Cross v. United States, 892 F.3d 288 (7th Cir. 2018) (lower courts must follow Supreme Court precedent on acquitted conduct)
- United States v. Vaughn, 585 F.3d 1024 (7th Cir. 2009) (review of district court’s factual findings about relevant conduct is for clear error)
- United States v. Hargrove, 508 F.3d 445 (7th Cir. 2007) (distribution of robbery proceeds is part of the criminal enterprise and relevant conduct)
- Massaro v. United States, 538 U.S. 500 (2003) (ineffective-assistance claims that require extra-record proof should be raised in collateral proceedings under §2255)
- Delatorre v. United States, 847 F.3d 837 (7th Cir. 2017) (ineffective-assistance claims are generally doomed on direct appeal because they require augmentation of the record)