*1 a traffic violation had occurred. The dis- UNITED America,
trict court committed no clear error. STATES
Appellee, July 2, Stop 3. 2006 Traffic v.
Howard CANANIA, Appellant. also contends Annette Marie the officers had legal no conducting basis traffic stop America, States of Appellee, 2, July 2006. The officer testified he observed run a light. Howard red Again, Robinson, Appellant. Gerald Howard provides no evidence the district 07-1078, court clearly Nos. finding erred 07-1329. the officer’s testimony more credible than that of the United States Court of Appeals, claiming witness there was no traffic viola- Eighth Circuit. tion. The district court again committed 15, Submitted: Nov. 2007. no clear error. Filed: July 2008. Rehearing
G. Probable and Rehearing Cause En Banc Howard’s Denied: Aug. June 2008.* Arrest finally Howard contends the offi
cers had no probable cause to arrest him
on June 2006. The district court noted there was valid no warrant for Howard’s
arrest. argument Howard’s premised on the conclusory statement, “There was no valid reason detain or arrest Mr.
Howard on this occasion.” The district
court noted the officer previously ob served selling Howard crack cocaine to an informant. Probable cause existed for the
arrest. The district court committed no
error. III. CONCLUSION
The district court properly denied How- ard’s motion to suppress every respect. judgment of the district court is af- firmed.
*Judge Bright grant would rehearing by the consideration or decision of this matter. panel. Judge Gruender part no took in the *3 sentenced 841(c)(2). court1 The district 240 and and Robinson respectively. imprisonment,
months Their sentences, appeal. From their appeal. now consolidated cases affirm.
I. with the 2003, officers
In December County Multi-Jurisdictional Louis St. consent obtained Force Drug Task *4 Friend. Julie residence search methamphet- found Therein, the officers to the related items numerous and amine methamphetamine. and manufacture use the offi- for informant became an Friend information about them provided and cers Robinson and of Canania involvement of metham- manufacture and in sale for “shopper” Friend was phetamine. person who is “shopper” A Canania. tablets cold as: such precursors, obtains MO, Louis, Cohen, St. argued, M. Peter de- could be pseudoephedrine which from Canania. appellant hoses; for batteries; tank fish rived; lithium solvent; Heet.2 washer windshield MO, Louis, Welby, St. Robert Stephen device, Friend recording Wearing a hidden Robinson. appellant for pills pseudoephedrine some delivered Louis, Decker, St. argued, Antoinette ob- officers Law enforcement Canania. MO, appellee. for Robin- Canania enter Friend served Street, St. Hood at 2230 son’s residence BRIGHT, and MELLOY, Before pills exit Missouri, with the Louis, Judges. SHEPHERD, Circuit investi- upon this Based pills. without and obtained sought officers SHEPHERD, Judge. gation, Circuit home. Street the Hood warrant search Gerald Marie Annette war- search executed officers When count one convicted tablets; lithium cold rant, they seized: pseudoephedrine possess conspiracy oxygen an extinguishers; batteries; fire to manufacture used be it would knowing re- been the valves from tank pos- counts and two methamphetamine to manufacture (which be used can it moved knowing pseudoephedrine session of meth- ammonia); grams 1.5 anhydrous metham- to manufacture used would be jars; bags; glass sandwich amphetamine; 21 U.S.C. pursuant phetamine, also com- It is water remover. Webber, freeze E. Richard Honorable 1. The of metham- the manufacture monly District used Judge the Eastern District phetamine. of Missouri. a fuel additive name brand 2. Heet anti- gas-line as a designed for use which is tubes;
snorting of pure ephedrine; bottle pills cold to be used manufacture meth- (hidden a smoking pipe; coffee filters amphetamine. Hartge later returned to duets); swabs; the air paint cotton thin- the residence and requested delivered the ner; fluid; wiper windshield .22 caliber pills cold to Canania and Robinson. Hart- ammunition; and a .22 pistol. caliber ge also purchased methamphetamine from pistol was seized from the bedroom shared Canania and Robinson. Officers then ob- by Canania and Robinson. At the time of tained and executed a second search war- seizure, Robinson was asleep on the rant for the Hood Street home of Canania same bed pistol where the was found. and Robinson. During the execution of During search, the officers also noticed warrant, the search the officers found and that there was fire damage throughout the seized methamphetamine, pills, cold basement. other substances used to manufacture methamphetamine. Canania and Robin- Despite the fact many of the above any son denied knowledge items, of these listed items were seized from the kitchen just had following the first search. counters top bed bedroom, their Canania and Robinson de- In January of Canania and Robin- any nied *5 knowledge of the items seized son were indicted for methamphetamine— from their They home. suggested that offenses, related and warrants were issued previous tenants must left the items. for their arrest. When officers attempted Likewise, they any denied involvement in to serve the warrants, arrest they discov- causing the damage fire in the of basement ered that Canania and Robinson longer no the home. lived at the Hood Street residence. In Approximately two months later, on 2006, February of law enforcement officers February 17, 2004, law enforcement offi- with the St. Louis County Multi-Jurisdic- cers observed Hartge Ronald purchase tional Drug Task Force learned that two boxes of cold medicine under suspi- Heather Thompson, a confidential infor- cious They circumstances. followed Hart- mant for another law enforcement agency, ge store, from the agreed and he to coop- knew Robinson and could deliver pills cold erate with them when he realized they to him for in use the manufacture of meth- were following him. Hartge consented to amphetamine. By then, Robinson was a search of his vehicle residence, and his again living at 2230 Hood Street. Howev- and he admitted that he previously er, had he was sharing the residence with a attempted to manufacture methamphet- man named Lee Westfall, not Canania. amine but was not successful. part As of 13, February 2006, On Thompson made a his agreement to cooperate with law en- controlled of delivery cold tablets the forcement, Hartge identified residences 2230 Hood Street residence while wearing which he knew to have a connection to the a hidden recording device. Just prior to sale or manufacture of methamphetamine. Thompson’s entry into residence, the Rob- so, While doing pointed he out the home of inson was observed entering the residence Canania and Robinson as a place metham- with a briefcase. When Thompson en- phetamine was manufactured sold. tered residence, the Westfall indicated to Hartge agreed to be wired with a hidden Thompson that Robinson was inside the recording device and went to the house, home of but Thompson did not see Robin- Canania and Robinson. While son. gave Westfall Thompson a gram of home and while being recorded, Hartge methamphetamine in exchange for 10 box- agreed to bring Canania and Robinson containing es 48 cold tablets in each box. pseudoephed- of possession count third thereafter, third search a Immediately manufac- be used it would knowing rine on the and executed obtained warrant methamphetamine. methamphetamine, ture again, Once home. were paraphernalia other pills cold Westfall, who Friend, Hartge, and Specifically, the residence. seized after sentenced were pending, charges containing notepad seized: officers Robinson, but prior trial Canania the base “ice,” which formula crude hearing of sentencing an unloaded methamphetamine; form of 2006, Hartge 27, September On Robinson. bed; digital beside found shotgun probation. years to four was sentenced coffee wallet, along with inside scale sen- 2006, 15, Westfall November On business Robinson’s one filters No- prison. On months tenced scale; cards; residue powder sentenced Friend was vember to the taken tablets cold ten boxes probation. four to the just prior Thompson residence warrant; other search execution December On boxes; jara tablets; pill cold empty hearing cold of Cana- sentencing conducted lye; Heet; a bottle binder; pill of blue to the regard With Robinson. nia packaged methamphetamine grams 0.99 adopted range Guideline which were bags plastic in three for sale two-level objected court, Canania iodine; briefcase; Robinson’s inside located role enhancement, the three-level firearm a fire generator; fuel; acid an camp the denial enhancement offense officers Additionally, extinguisher. acceptance reduction two-level believed the basement red stains noted over- objections Her responsibility. *6 of iodine production from be caused to 262 range was Guideline Canania’s ruled. manu- necessary to the crystals, statutory maximum awith 327 months to methamphetamine. of facture months). (720 Canania years 60of term arrests, and Canania imprison- their Following months 240 to sentenced was tried one and re- indicted supervised of years Robinson three and ment pseu- possess to conspiracy Cana- of count sentenced The lease. to used be it would knowing doephedrine noting that range, the Guideline below nia three methamphetamine, manufacture Cana- between disparity to avoid wanted it pseudoephedrine possession as sentences, counts well Robinson’s and nia to manufacture used be it knowing would history of to Canania’s consideration giving pos- count and one methamphetamine, long histo- her and of abuse being a victim aof in furtherance a firearm session addiction. drug ry of trial, the tes- At offense. drug-trafficking Robinson’s court conducted The district Westfall, as Friend, Hartge, timony date hearing on same sentencing during the obtained the evidence well as to range Guidelines Robinson’s calculated jury The introduced. searches three Rob- imprisonment. months 235 188 to be of one and Robinson convicted of metham- quantity to objected inson pseu- possess to conspiracy count two- and the himto attributed phetamine used be it knowing would doephedrine possession. firearm enhancement level and two methamphetamine manufacture Rob- overruled. were also objections His pseudoephedrine possession counts variance downward sought a then inson to manufacture used be knowing it would that: arguing range the Guidelines acquitted jury methamphetamine. meth- manufactured and Canania he charge and firearms pair 770
amphetamine to feed their own addictions III. very made little money; he was “We review a district court’s inter an otherwise law-abiding citizen who pretation and application of the Guidelines worked hard as a carpenter; he was 59 de novo and its factual findings regarding old; years arthritis; he and, due enhancements for clear error.” United age arthritis, he would be particularly States v. Gillispie, 487 F.3d Cir.2007). vulnerable — prison. to abuse in The court See Gall v. States, United U.S. -, declined to sentence Robinson below the 169 L.Ed.2d (2007) (improper range Guideline imposed calculation of sentence of Guide range procedural error). lines in prison months two super- vised release. From sentences, their Ca- do find that the trial court nania and Robinson appeal. clearly erred determining that the pistol
hidden in the bed shared Canania and Robinson was connected to the drug of II. fenses of which they were convicted. If it On appeal, Canania argues that the is “not ‘clearly dis- improbable that the [pistol] ” (1) trict court erred in: imposing a connected with the [drug two- offenses,]’ level then firearms enhancement pursuant court did not clearly err in giving the 2005 United the defendants Sentencing in two-level Com- crease mission, offense pursuant level Guidelines Manual, Guide lines section 2D1.1. 2Dl.l(b)(l); (2) § United Bell, States v. applying a three-level 477 F.3d Cir.2007); enhancement accord for her supervisory role pur- Peroceski, States v. suant 3Bl.l(b); (3) USSG denying (8th Cir.2008) (clarifying that govern her request for two level reduction for ment bears burden of proving defendant is acceptance of responsibility pursuant subject to sentencing enhancement by es § 3El.l(a); USSG imposing an tablishing it is not clearly improbable that unreasonable sentence. argues firearm was offense). connected to drug that the district court erred in the follow- Firearms serve as the *7 ‘tools the drug (1) ing ways: imposing the two-level fire- trade’ ‘providing protection and intimi arm enhancement pursuant to USSG dation,’ therefore firearms drug and of § (2) 2Dl.l(b)(l); refusing to grant his fenses are often related and “result in request for a downward variance because reciprocal offense characteristic enhance he was given not a leadership role en- ments.” Id. at 615 (quoting United States hancement, resulting in an unreasonable Linson, v. (8th F.3d Cir. sentence; (3) failing to properly weigh the 2002)). The testimony established that the factors to pertaining the nature and cir- .22 pistol caliber was well within the reach cumstance of the in offense refusing to of a person lying in the bed and drug grant request his for a downward variance, paraphernalia was scattered all over the resulting in an sentence; unreasonable and bed at the time gun the was seized. Both to failing consider or give appropriate Canania and Robinson lived in the resi weight to relevant factors such as age, his dence, slept in the bed where gun the was disability and disparity in sentence among located, and participated in possession the co-conspirators in refusing grant of the paraphernalia precursors, and as request a variance, downward resulting well as the manufacture and sale of meth in an unreasonable sentence. amphetamine. Canania and Robinson a was gun that To determine the presence the aware both were activity, district the drug the connected Hence, were bedroom. the in gun spatial rela and temporal may find court the firearm. possession in both defendants, crim the the between tionship gave he that testified brother Robinson’s United firearm. the and activity, inal it before several gun the Robinson 955, 958 Newton, F.3d v. States “re- for Robinson order in seized was established Cir.1999). government no However, were there gun. the blue” and Canania between relationship such house, and a in the materials rebluing activities, and the drug Robinson, their gun did that the testified expert firearms alsoWe their bedroom. in located firearm gun’s the because reblued to be need not of Canania acquittal jury’s the that note itWhile condition. in excellent was finish does charge firearms of the of a presence “mere the that settled is well apply from court the district preclude not enhancement,” the support cannot firearm 2Dl.l(b)(l) en two-level section ing the en- the apply should court the Eberspacher, hancement. improbable “clearly it is unless hancement Cir.1991). We find the with connected weapon the that it when err did trial the that (cit- 487 F.3d Gillispie, offense.” fire 2D1.1 section the Guidelines applied 3.). n. 2D1.1, comment § ing USSG Robin to Canania enhancement arm son. clearly it was say that cannot We case was in this pistol the
improbable IV. This operation. drug the with connected the dis argues next proximity of the light in true especially a three-level imposing erred trict court gun, drugs to the paraphernalia role supervisory her enhancement finish gun’s condition section pursuant conspiracy in the house. materials rebluing absence a de when 3Bl.l(b), provides manufacture evidence Much (but supervisor or manager “was fendant seized methamphetamine leader) crimi organizer not an drug drugs gun, room same partici or more five involved activity nal very bed on found paraphernalia extensive,” the otherwise or was pants, Methamphet was located. gun where by three be increased should level offense items found manufacturing amine 3Bl.l(b). review USSG levels. alcohol; pseu- denatured included: bed upward an apply decision court’s containing vile glass pills; doephedrine pursuant level offense adjustment “Broneh-eze,” ephed an *8 a box powder; United error. clear for § 3B1.1 USSG Pyrex jar; a substance; a mason rine-like Mata-Peres, F.3d 478 containing a it; dish on residue with dish Cir.2007). (8th of antihistamines battery; boxes lithium the find cannot marijuana; syringes; decongestants; determining that erred clearly court by delivered pills pseudoephedrine 599 supervisory or managerial Canania pseu- 479 Friend; another Julie does Canania conspiracy. role in bed, offi to the Next pills. doephedrine more involved conspiracy dispute meth containing vile glass found: cers Further, Canania people. five than pseudoephedrine additional amphetamine; aspect business ran the person who swabs; paint cotton smoking pipe; pills; while conspiracy, fluid. wiper thinner; and windshield 772
“cook.” Canania recruited the co-conspir-
a two-level decrease in her offense level
ators. to
obtain
cold pills and other
based on acceptance of responsibility pur
items
be
used to manufacture the meth-
suant to Guidelines section 3E1.1.
re We
amphetamine. She then continued to cul- view a denial of a reduction
acceptance
for
tivate relationships with the co-conspira- of responsibility for clear
part
error
tors. Canania determined the amount of of the district court. United States v.
methamphetamine
each
co-conspirator
Johnson, 474
F.3d
Cir.2007).
would
in exchange
receive
or
her The burden was on Canania to
show
procurement of cold pills and
precur-
other
she “clearly demonstrated” acceptance of
sors. After
bargained
she
with the co-
responsibility under section 3E1.1. United
conspirators, Canania then did all the prep States v. Spurlock,
495 F.3d
work on the cold pills to ready them for
—
(8th Cir.),
denied,
cert.
U.S. -,
the final methamphetamine “cook.”
(2007).
L.Ed.2d 537
“The
While Canania tended to the business
suggest
Guidelines
several factors a dis
end of
operation
during
day,
Rob-
trict
may
consider in deciding wheth
inson worked at his regular job as a car-
er to grant an acceptance of responsibility
penter. When Robinson arrived home
(1)
reduction including:
whether the de
work,
Canania
give
would
him the
fendant
truthfully admitted the conduct
prepped pseudoephedrine pills and then
comprising
offense; (2)
[her]
whether [s]he
Robinson would
the prepped
take
pills to
voluntarily surrendered
to authorities
another location to “cook” the metham-
promptly after the commission of
of
phetamine. When the “cook” was com-
fense;
the timeliness of [her] con
plete, Robinson returned to their home
duct manifesting acceptance of responsibil
with the
product.
final
Canania then de-
ity.” Johnson,
the methamphetamine. Based on the evi- responsibility is “entitled great dence, defer the district court did not clearly err ence, and we will it only reverse if it is so imposing the three-level enhancement clearly erroneous as to be without founda Canania’s offense level based on its tion.” Spurlock, 495 F.3d at finding 1014. played a managerial or two-level decrease for acceptance supervisory role in of re this operation. See sponsibility is not intended to Zimmer, States v. be applied when a puts defendant Cir.2002) (Evidence the United States suggested to its managerial burden of proof at trial supervisory denying role enhance- ment essential factual where elements guilt, defendant assisted in then cooking expresses methamphetamine, remorse upon procurement directed conviction at jury comment, significant trial. USSG (n. 2). amount of 3E1.1 ephedrine pills, Ca- and taught nania argues others how to up set that she should metham- have been *9 phetamine lab). given the two-level decrease because her attorney told jury the in opening state
V. ments that the only charges she denied Canania argues next that the dis involvement in were the firearm charge trict court erred in denying request her for and witness tampering charge. Even a
773 abuse-of-dis under an imposed sentence reduc- of a guarantee no is guilty of plea standard.”). States The United cretion See responsibility. of acceptance for tion that the determined 164, Court Supreme 165 Miller, F.2d 951 v. States United v. States advisory, United guaran- not Guidelines Cir.1991) did plea (guilty 738, 220, S.Ct. Booker, 543 U.S. responsibil- of acceptance for reduction tee serve (2005), should but reduc- 621 denied L.Ed.2d 160 properly court district ity; district for the regret). “starting point” professed the as defendant’s despite tion United Kimbrough v. submitted sentence. government the court’s sentencing, At — that U.S. -, S.Ct. court 128 States, district the list a written Gall, 128 (2007) tried to (quoting ways Canania the 481 all L.Ed.2d 169 documented in the 596). the sentences reviewing involvement her In deny or at minimize S.Ct. of all sentencing, Robinson, we determine her prior and Canania offenses of the course sentencing in de the disproved court’s were the district whether para- drug that the the to considering fact the Despite trial. reasonable was cision coun- her kitchen on was located phernalia the circumstances. tality of Cir.2007), her top of bedroom, on and her tertops, Gillmore, in — had no idea she -, that stated bed, denied, Canania U.S. rt. ce home in her drug paraphernalia (2008). Fur where the L.Ed.2d S.Ct. enforce- lawto suggested and Guide came the below within ther, a sentence left there been it must have ment that reasonable presumptively is range lines co- testimony The tenants. previous Id. appeal. to establish sufficient was conspirators that argues Canania of the only aware Canania that her upon imposed sentence month in her drug paraphernalia of the presence of: light in unreasonable court was district methamphet- running the home, she was coconspirators of her (1) the sentences partic- manufacturing operation amine crimi (2) prior lack of codefendants; her pills for cold preparation ipating in problems; (3) psychiatric her history; nal methamphet- manufacture in the use a child. suffered she the abuse involvement denied she Although amine. of discretion However, abuse no we find attorney conceded until her in all counts sentencing determina court’s district at charges drug in the involvement her that concluded court district tion. that conviction her only after trial, it was the of role in culpability Canania’s conduct. illegal her some admitted she Robinson, than greater fense clear- court district say that cannot Guide within a sentence received who a reduction Canania denying ly erred Hartge, both Friend and range, and lines responsibility. acceptance of for cooperated with guilty pled whom investiga during VI. both government Further, district trial. tion argue Canania a down did afford fact court unreasonable sentences their be to a her and sentenced variance ward the rea We review of reasons. variety effort sentence, in an low-Guidelines sen court’s district sonableness with that sentence her equalize somewhat Gall, 128 of discretion. abuse tences closely most culpability Robinson, whose (“Assuming that at 597 findWe own. her resembled procedurally decision sentencing court’s sec considered properly court con then should sound, appellate nature 3553(a) including: the factors, tion reasonableness the substantive sider *10 and circumstances of offense; the his- amphetamine; Robinson provided meth- tory and characteristics of defendant; amphetamine to his prior coworkers need to avoid unwarranted sen- their departure to the job sites and tencing disparities among defendants with throughout day, work resulting in a similar records and conduct. dangerous work environment; and a fire resulted in the basement of the home he Robinson also argues that the dis shared with Canania due to cooking meth- trict court imposed an unreasonable sen amphetamine. Although argues Robinson tence in his case and erred in refusing to that the record does not support his long grant a downward variance from his use of drugs, his argument conflicts with Guidelines sentence. Robinson’s 220 the admissions he made to the probation month sentence was within the Guidelines officer during presentence his report inter- range of 188 to 235 months imprisonment. view. reported using marijuana Specifically, Robinson argues that because at a young age and using methamphet- he given was not a leadership role en amine for several prior to his arrest. hancement, the district court erred in con We do not find that the district court erred sidering his role as a factor in denying his in considering 3553(a)(1) the section fac- request downward variance. Such tors of Robinson’s history and characteris- consideration squarely fits within the 18 tics. 3553(a)(1) § U.S.C. factor of “nature and circumstances of the offense” and appro Like Canania, Robinson also argues priate. See United Wills, States v. 476 that the district court should grant- (2d F.3d Cir.2007) (“18 U.S.C. ed a downward variance because of the 3553(a)(1) provides a natural and neces sentences received his codefendants sary basis placing the actions of an and coconspirators. However, Robinson individual defendant the broader context overlooks the distinctions the district of the crime he or she committed [and] court noted between his conduct and that requires consideration of the ‘nature and of the cooperating witnesses who testified ”). circumstances of the offense’ The dis against him. Friend and Hartge received trict that, court stated because Robinson probation after: providing information as given an offense level increase for informants; confidential wearing hidden his role in the offense, it would decline to recording devices to assist govern- grant a downward variance from his ment in obtaining evidence of criminal Guidelines sentence. We say cannot conduct; admitting their involvement the district court abused its discretion in very on; early and providing substantial making such a determination in applying assistance testifying at trial. “Dispar- 3553(a)(1) section factor of the nature ity in sentences between a defendant who circumstances the offense. provided substantial assistance and one Additionally, Robinson argues that the who provided no assistance, ... is not district court should not have considered ‘unwarranted.’” United States v. Galle- his drug addiction and the impact of gos, his Cir.2007). actions on other people in denying his Westfall only joined the conspiracy after request for a downward variance. The the first two search warrants were exe- evidence considered by the cuted, district court but he did not act as a confidential established that: all the women associated informant. There is no evidence with this case lost custody of their children prior involvement to the indictment of as a result of their involvement with meth- Canania and Robinson. Westfall received
775 Gall, Cir.2008) 128 (citing 805 F.3d Comparatively, sentence. month 80 an 597) at S.Ct. in the participant minor awas Westfall Plaza, v. States See conspiracy. that establish does not record Cir.2006) (district 471 or physical present or past age, Robinson’s identical impose to required not court intelligence health, his or psychological there when defendants on both sentences pris in a vulnerable particularly him make histo- and participation in disparity is a estab to failed Robinson on environment. Canania, consid- was Further, who ry). any extraordi from he suffered lish role, received supervisory a to have ered impairment. mental or physical nary Robinson. than sentence greater a arrest, he Robinson’s Through the date the argument Therefore, Robinson’s labor physical in engaged actively the sec- consider failed to court district and carpenter, aas through his work sen- 3553(a)(6) of unwarranted factor tion de a sudden not establish does evidence the conduct because fails disparities tence mental abilities or physical his in cline and co- codefendants records Like arrest. after his condition health to sufficiently similar conspirators arrest, engaged he wise, his to prior finding a trigger Robinson methamphet manufacture chemical Id. sentence. disparate unreasonably an un a basic at least amine, requires reactions chemical certain derstanding of that he argues also insuffi intellectual professed his belies variance a downward granted be should sup facts would ciency. While At sen disability. age his based the district departure, upward an ported court district urged tencing, Robinson upward depar an apply court declined from variance downward him a grant role supervisory Robinson’s for ture months to 235 of 188 range the Guidelines Indeed, dis conspiracy. “cook” of months. of 78 of imprisonment term to a factors, above all the considered trict a downward for request his support In im declining leniency in its including following argued variance, Robinson denying departure, upward an pose (2) old; he has (1) years 59 he is factors: vari a for downward request Robinson’s 35 past for the law-abiding citizen been totality of the circum on the Based ance. little with (3) worker was hard he years; jus stated court’s the district stances (4) his he broke training; education district that the find tifications, do not we arthritis, but ago and has back denying Rob its discretion court abused (5) roofer; carpenter and as a works still variance. downward request inson’s condition; and mental intelligence his Gall, (post Lehmann, F.3d at See we When prison. vulnerability in reasonable examine substantive now we deter sentence defendant’s review “totality of considering of sentence ness re with is unreasonable it whether mine stated strength of the circumstances” U.S.C. of 18 application gard deci court’s reviewing district justification, abuse- a “deferential 3553(a), apply we discretion). abuse sion Gall, standard.” of-diseretion to the deci “due deference” give 591. section court that
sion
VII.
the de
support
3553(a)
justify
factors
judgment
we affirm
Accordingly,
the Guidelines
any variance
gree
court.
Lehmann,
range. United
*12
BRIGHT, Circuit Judge,
dence).
concurring.
Permitting
judge
a
to
impose
sentence that reflects
jury
conduct the
ex-
by Supreme
Bound
Court and Circuit
pressly disavowed through a finding of ‘not
precedent, I reluctantly concur
my
with
guilty’
amounts more than mere
colleagues in
second-
affirming Canania’s and Rob-
guessing of
jury
entirely
inson’s
trivializes
convictions
sentences.
I write
—it
its principal fact-finding function.
separately
express
But no
my strongly held
less significant,
judicial
this
view that the
fact-finding
consideration
“acquitted
deprives a defendant
adequate
conduct”
to enhance a
notice as
defendant’s sen-
to his
possible
or her
tence is
sentence. This
unconstitutional.
state
unfair,
affairs is
unjust and I believe
In
ease,
this
jury
acquitted both
plain unconstitutional. Though the Gov-
Canania and Robinson of possessing a fire-
might
ernment
have “won” everyone arm
furtherance
a drug-trafficking
everything
defendant,
else—the
jury
Nevertheless,
conviction.
at sentencing, the
system, the Constitution —loses.
district court judge enhanced both of their
pursuant
sentences
U.S.S.G.
In
decade,
the last
the Supreme Court
2Dl.l(b)(l)
§
for “possessing” a firearm in re-affirmed
jury’s
central role in the
connection with a drug offense because it
justice
criminal
system. See, e.g., Appren
was not “clearly improbable that
weap-
di v. New Jersey,
466,
530 U.S.
120 S.Ct.
on was connected [to their] offense[s].” 2348, 147
(2000);
L.Ed.2d 435
Ring v.
United States v. Gillispie,
1158,
487 F.3d
Arizona, 536
584,
U.S.
122
2428,
S.Ct.
153
(8th Cir.2007)
1162
(citing U.S.S.G.
(2002);
L.Ed.2d 556
Blakely v. Washing
2Dl.l(b)(l),
3).
cmt. n.
so,
And
under
ton, 542
296,
U.S.
124
2531,
S.Ct.
159
guise
“judicial
discretion,” we
(2004);
L.Ed.2d 403
United States v.
sentencing regime that allows the Govern- Booker,
220,
543 U.S.
125 S.Ct.
ment to try its case not once but twice.
(2005).
L.Ed.2d
Rather
pretend
than
The first time
jury;
before a
the second
ing as if these cases were
decided,
never
a judge.
before
we federal
judges
should acknowledge
the jury,
Before
the Government must
their clear implication: A judge violates a
prove its case beyond a reasonable doubt.
defendant’s Sixth
rights
Amendment
by
But if it loses
counts,
on some
that matters making findings of fact that either ignore
little. Free of the Federal Rules of Evi
or countermand those
made
the jury
dence, most constitutionally-imposed pro
and then relies on these
findings
factual
cedures, and the burden of proving any
enhance
defendant’s sentence. Cf.
critical
beyond
facts
doubt,
reasonable
United
Mercado,
States v.
474 F.3d
gets
Government
proverbial
“sec
Cir.2007)
(Fletcher, B., J., dissent
ond bite at the apple” during
(“Reliance
sentencing to
ing)
on acquitted conduct in
essentially retry those counts on which it
sentencing diminishes the jury’s role and
lost. With this second chance at success,
dramatically undermines
protections
the Government almost always
wins
enshrined
the Sixth Amendment.”);
needing only
prove
(lost)
its
case to a United
Faust,
States v.
456 F.3d
judge by a preponderance of
the evidence.
Cir.2006)
(Barkett, J., specially
See McMillan v. Pennsylvania, 477
(“I
U.S.
concurring)
strongly believe ...
79, 91-92, 106
The federal just courts are emerging experience their with mandatory Guidelines—a experiment failed —that nearly twenty years resulted in an untold number of defendants receiving excessive sentences,
and unfair that we now know By unconstitutional. continuing to *14 permit federal judges “acquit- consider
ted conduct” at sentencing, we needlessly repeat our mistake of wrongly depriving individuals of their freedom. I wonder what the man on the might street say CHE, Janet Petitioner, about practice this of allowing a prosecutor judge say that a jury verdict of ‘not might 4. What the man on the street think? seriously. virtually gave We up private our Recently, Washington reported Times that lives to devote our time cause of prosecutors federal have asked for a sentence justice, and very it is a noble you cause as years of 40 (Unit- the case of Antwuan Ball know, sir. We looked across the table ed States v. Antwuan (05-CR-IOO(1)- Ball one in respect another and in sympathy. D.D.C.)), RWR purported leader large of a listened, thought, we argued, we gotwe conspiracy D.C., criminal in Washington, de- room, broke, mad and left the we we rested spite fact jury acquitted had him of that charge tomorrow, until we on. went everycharge $600, except half-ounce, hand- Eventually, through every hour-long tape of to-hand crack cocaine years ago. deal seven sale, single drug hundreds of pages of McElhatton, See Jim deal, A drug $600 transcripts, evidence, ballistics photos, prison; Acquitted murder, convicted we you delivered to our verdicts. deal, drug Antwuan Ball of long decades- faces What say does it to our contribution sentence, Washington Times, June jurors verdicts, when we see our my (available http: at: //www. personal view, given proper their washingtontimes. com/news/2008/jun/29/a- weight. appears It to me that these defen- 600-drug-deal-40-years-inprison/?page=l being dants are (last sentenced not on the July 2008)). accessed The article charges for they notes have been prosecutors' that the found request is based guilty but on "partly charges charges which the were never filed or District Attorney’s jury conduct the office rejected either would have outright liked was never them to have asked to been guilty. found consider.” Id. Had After learning evidence, shown prosecutors' us hard request, might one of jurors, outcome, a retired been the economist at the but that was U.S. not the Department Agriculture, who case. That is how you your served jury instructed eight about months on the jury, Ball perform in this case to wrote good and for reason. U.S. Judge District Richard W. May Roberts as 2008 Letter from Juror # 6 to The follows: Roberts, Honorable Richard W. available at: It seems to me a tragedy http that one is 1. asked ://video washintontimes. com/video/docs/ serves, serve jury, on a (last but letter.pdf then finds July 2008). accessed their work may given not be the credit it And this was a comment from someone who We, deserves. jury, all took our charge just more than the man on the street.