UNITED STATES OF AMERICA, Plаintiff - Appellee, v. CHIKOSI LEGINS, Defendant - Appellant.
No. 20-4390
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
May 11, 2022
PUBLISHED. Argued: September 24, 2021. Appeal from the United States District Court for the Eastern District of Virginia at Richmond. David J. Novak, District Judge. (3:19-cr-00104-DJN-1)
Before DIAZ and RICHARDSON, Circuit Judges, and FLOYD, Senior Circuit Judge.
Affirmed by published opinion. Judge Richardson wrote the opinion, in which Judge Diaz and Senior Judge Floyd joined.
ARGUED: Charles A. Gavin, CAWTHORN, DESKEVICH & GAVIN, P.C., Richmond, Virginia, for Appellant. Christopher Chen-Hsin Wang, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Gregory B. Friel, Deputy Assistant Attorney General, Tovah R. Calderon, Appellate Section, Civil Rights Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Former federal prison guard Chikosi Legins was indicted for sexually assaulting a prisoner twice and then lying to law enforcement about it. A jury convicted Legins only of making a false statement to law enforcement while acquitting him of the more substantial sex-crime charges. Following that verdict, the district court
On appeal, Legins challenges his false-statements conviction. We reject that challenge. Sufficient evidence supported that conviction, and any arguable inconsistency with the jury‘s acquittal on other counts does not invalidate the false-statement conviction. Legins next argues that the judge improperly imposed an enhanced statutory maximum penalty based on a judicial finding not in the indictment or found by the jury. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). We agree but are constrained to find the error harmless. See Washington v. Recuenco, 548 U.S. 212, 219–20 (2006); Neder v. United States, 527 U.S. 1, 4 (1999). Finally, we conclude that the court did not impose an unreasonable sentence.
I. Background
A. Alleged Sexual Assaults
In May 2018, B.L., then a prisoner at Petersburg Federal Correctional Institution, was hanging flyers around the prison to inform inmates of upcoming events. Legins, then a prison guard, escorted B.L. as he travelled from unit to unit to distribute the flyers. At 6:10 PM, a surveillance video shows the two men entering a camera-free staff corridor, along which was a similarly camera-free administrative office. At 6:15 PM, the video shows them emеrging from the other side of the corridor. They offer wildly different accounts of the intervening 5 minutes.
That evening, B.L. reported to prison lieutenant Steven Arrant that he had been raped. After medical evaluation, B.L. prepared an affidavit describing his assault during those 5 minutes. According to B.L., Legins forced him to perform oral sex on him, and then anally raped him. Legins then ejaculated in his own hand and instructed B.L. to clean up.
And according to B.L., this was not the first time Legins sexually assaulted him. Two months earlier, Legins was similarly escorting B.L. as B.L. hung flyers. While in an elevator alone, Legins allegedly pushed B.L. to his knees and instructed B.L. to perform oral sex on him, and B.L. did so. B.L. did not report this incident until after the May assault. He had, however, placed the sweatshirt he wore at the time, on which Legins had allegedly ejaculated, into a plastic bag.1
After completing his affidavit describing the assault, B.L. was taken to a local hospital, where a rape kit test was performed. The results were mixed. No physical indicia of forcible rape were found. But experts for both the prosecution and defense agreed that physical injuries are often not found. The exam did reveal toilet paper on B.L.‘s anus, which the defense expert claimed would be unusual if the assault occurred as B.L. described. But Legins‘s DNA was found on a swab of B.L.‘s anus, on B.L.‘s jock strap, and on the sweatshirt B.L. kept from the March assault.
As all of this was going on, Legins began acting suspiciously. Before B.L. was taken to the hospital, Legins called the medical bay seeking medicine (which he had never done and was not authorized to
Legins tells a very different story of what happened during those 5 minutes in May. In June 2018, he was interviewed by the FBI and the Office of Inspector General, placed under oath, and informed that false statements could be prosecuted under
B. District Court Proceedings
Legins was charged with sexual abuse of a ward3 for the March incident. For the May incident, he was also charged with sexual abuse of a ward, aggravated sexual abuse,4 and deprivation of civil rights.5 In a final count, Legins was charged with making false statements6 during his interview. The language of this false-statement count—the focus of this appeal—is as follows:
On or about June 5, 2018, in the Eastern District of Virginia, the defendant, CHIKOSI LEGINS, knowingly and willfully made false, fictitious, and fraudulent statements and representations to Special Agents of the Federal Bureau of Investigation (FBI) and the Department of Justice (DOJ) Office of the Inspector General as to material facts in relation [to] a matter within the jurisdiction of the FBI and DOJ, agencies of the United States. Specifically, the defendant, CHIKOSI LEGINS: (1) falsely denied that he engaged in a sexual act with any inmate at any time at Federal Correctional Institution, Petersburg; and (2) falsely stated that on May 10, 2018, he attempted to use a computer and printer while he was engaged in “just conversation” with inmate B.L. when they were alone in an unattended office with no surveillаnce cameras. Those statements and representations by CHIKOSI LEGINS were false, because as CHIKOSI LEGINS then well knew, he had engaged in a sexual act with an inmate at Federal Correctional Institution, Petersburg; and on May 10, 2018, the defendant used an unattended office with no surveillance cameras to engage in a sexual act with B.L.
During his arraignment, the government stated that the maximum sentence on the false-statement charge was 5 years. Legins pleaded not guilty and went to trial by jury. At trial, the jury was presented with a verdict form that asked whether Legins was guilty “as charged in [the false-statement count] of the Indictment,” and asked it to note “which—or both—of [the two alleged false statements] supports [its] guilty verdict.” J.A. 820.
The jury convicted Legins on the false-statement count. In finding him guilty of that count, the jury found that both statements presented in the Indictment supported the verdict that is, both lying about “engag[ing] in a sexual act with any inmate” and lying about using a computer and printer while “engaged in ‘just conversation‘” with B.L. in the office. J.A. 820. But the jury acquitted Legins on all other counts, even though they involved the commission of the sexual acts that the jury found Legins lied about.
After denying Legins‘s motion for acquittal notwithstanding the verdict, the district court observed that the false-statement count justified an enhanced 8-year maximum sentence—not the standard 5-year maximum—because Legins‘s statement involved a sexual crime that is an “offense under Chapter 109A” of the criminal code. Legins objected to the increased statutory maximum sentence under Apprendi7 and argued that the “misstatement” of the 5-year maximum sentence during arraignment also prejudiced him. The court disagreed and applied the 8-year statutory maximum. The increased statutory maximum also increased Legins‘s guideline offense level by 4 levels to 18. See
The court found that a 54-month sentence was appropriate given the “seriousness of the Defendant‘s conduct” and the need to afford “adequate deterrence to Defendant and other correctional officers,” while still accounting for Legins‘s positive role in his family, country, and religious community. J.A. 1058; see
II. Discussion
We consider in turn Legins‘s arguments that: (1) his conviction is not supported by sufficient evidence; (2) his sentence was for a crime of which he was neither indicted nor convicted; and (3) his sentence is otherwise unreasonable.
A. The Evidence Supports the Conviction
Legins first argues that his false-statement conviction was not supported by sufficient evidence. A
The government chose to go beyond reciting the three elements in the indictment. See Hamling v. United States, 418 U.S. 87, 117 (1974) (stating that an indictment is sufficient if it (1) “contains the elements of the offense charged and fairly informs a
“A defendant challenging the sufficiency of the evidence to support his conviction bears a heavy burden.” United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (cleaned up). That is because it is the jury‘s role to weigh conflicting evidence and find the truth; once that finding is made, we will not lightly disturb it. So “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Viewing the evidence in the light most favorable to the prosecution requires drawing all reasonable inferences in favor of the government and assuming the jury resolved any conflicting evidence in the prosecution‘s favor. United States v. Jeffers, 570 F.3d 557, 565 (4th Cir. 2009). Even an uncorroborated account of a single witness may constitute sufficient evidence. United States v. Clark, 541 F.2d 1016, 1017–18 (4th Cir. 1976) (per curiam); United States v. Shipp, 409 F.2d 33, 35–36 (4th Cir. 1969)
Sufficient evidence supported finding that both of Legins‘s statements were false for the reason charged—that is, Legins had performed a sexual act on an inmate.14 B.L. testified under oath that Legins had performed a sexual act on him. Just this account, if found credible by the jury (and we must assume it was), may suffice. See Shipp, 409 F.2d at 35–36. But the account is also significantly corroborated. An anal swab performed after the May incident revealed Legins‘s DNA, which was also found on B.L.‘s clothing (including his jock strap). And Legins‘s testimony to explain the events was contradicted by the prison‘s IT manager, who confirmed that Legins did not try to use the computer during that time. Furthermore, the defendant‘s request for a colleague to falsely attest to personal knowledge that Legins was only with B.L. for a minute also shows he was conscious of his wrongdoing. See Wilson v. United States, 162 U.S. 613, 621 (1896) (“The destruction, suppression, or fabrication of evidence undoubtedly gives rise to a presumption of guilt, to be dealt with by the jury.“); United States v. McDougald, 650 F.2d 532, 533 (4th Cir. 1981). So a rational juror could have concluded beyond a reasonable doubt that Legins performed a sexual act on B.L., making both statements false for the reasons alleged.
Legins responds by pointing to a laundry list of potential alternative sources of the DNA found on B.L.‘s anus and clothing and to alleged inconsistencies between B.L.‘s testimony and other evidence. Neither helps his cause. While the DNA found on B.L.‘s anus and clothing might not have come through sexual contact, it is a reasonable inference that it did, given the location at which some of the DNA was found (i.e., B.L.‘s anus) and B.L.‘s testimony about its source. Legins‘s alleged inconsistencies fare no better. B.L. testified the rape “lasted like five minutes” after which B.L. cleaned himself up. This could not be, Legins argues, because a 5-minute rape would not have left enough time to clean up during the 5 minutes and 15 seconds the two were alone. But even if B.L.‘s testimony could be read to overstate the length of the rape, it does little to undermine his testimony. For someone being coerced into unwanted sexual acts, 1 minute may feel like 5. The same goes for the Legins‘s arguments about the lack of physical injury and the presence of toilet paper. The defense‘s expert only contended that she would not “anticipate” finding a lack of injuries and the presence of toilet paper if the event had occurred as B.L. described, not that B.L.‘s description was impossible, and even then the jury was not required to believe her. We do not ask whether Legins‘s position is supported by some evidence, or even most evidence. We may only consider whether, viewing all the evidence in the light least favorable to Legins, any rational juror could have found it substantial enough to convict him. And
Legins counters that the evidence of any sexual act during the March and May incidents must have been unreliable because the jury acquitted Legins on the sexual-assault counts. Though framed as part of his sufficiency challenge, this is essentially an inconsistent-verdict argument—that the jury inconsistently concluded that Legins did not commit the charged sexual acts but did commit a sexual act for the false-statement count. We reject this contention for two reasons.
First, even if the verdict were internally inconsistent, it would not entitle Legins to relief. A defendant “cannot challenge his conviction merely because it is inconsistent with a jury‘s verdict of acquittal on another count.” United States v. Thomas, 900 F.2d 37, 40 (4th Cir. 1990) (citing United States v. Powell, 469 U.S. 57, 83 (1984)); accord United States v. Godel, 361 F.2d 21, 24 (4th Cir. 1966) (upholding a
Second, even if inconsistency would entitle Legins to relief, the jury‘s verdict is not necessarily inconsistent. The sexual-abuse counts each required the jury, as an element of the offense, to determine whether Legins committed a “sexual act,” and the court instructed them on the precise legal definition of “sexual act” for each charge: either penetration or contact between a mouth and a penis or anus.15 But during its discussion of the false-statement count, the court did not instruct the jury on the definition of “sexual act.” Nor did it need to: “Sexual act” was used in that count descriptively, as part of the indictment‘s factual narrative. It was not an element of the offense, so it did not carry any particular legal definition.
In diligently following the jury instructions, the jury could have correctly concluded that “sexual act” as used in false-statement count carried its ordinary, colloquial meaning. That may include acts, such as masturbation, that are excluded under the legal definitions of “sexual act” applicable in the sexual-abuse counts. During his
Because we find sufficient evidence to support Legins‘s conviction, and because the jury‘s verdict was not necessarily inconsistent—and would not entitle Legins to relief even if it were—we affirm Legins‘s conviction.
B. The District Court Committed a Harmless Apprendi Error
Legins next challenges the district court‘s conclusion that he was subject to a statutorily enhanced maximum sentence for his false-statement conviction. Section 1001 sets the statutory maximum sentence at “5 years.” But if “the matter relates to an offensе under chapter 109A . . . then the term of imprisonment imposed under this section shall be not more than 8 years.”
1. Existence of Apprendi Error
The Fifth and Sixth Amendments guarantee that, in federal courts, “[n]o person shall be held to answer for a caрital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,” and that guilt must be determined by “an impartial jury.”
The indictment does
But there is a subtle yet significant mismatch between the facts alleged and found by the jury and the aggravating factor in
For example, imagine a situation in which a prison guard is being investigated for taking bribes from a particular prisoner in violation of
To be sure, these are not the facts of our case; the FBI informed Legins early in the interview that he was being investigated for sexual abuse. But that fact was never alleged in the indictment, never stipulated to by the defendant, and never found by the jury. So neither the indictment nor the jury verdict contained sufficient facts on which to try or convict Legins on an 8-year aggravated
2. Harmless Error
Finding this constitutional error doеs not end our inquiry, however, because not all constitutional errors require automatic reversal; instead, “[m]ost constitutional errors can be harmless.” Neder, 527 U.S. at 8 (quoting Arizona v. Fulminante, 499 U.S. 279, 306 (1991)).18 An error is harmless if it does not affect the defendant‘s “substantial rights.”
But before we can determine whether the error was harmless, we need to determine what exactly that error was. There are two plausible options. First, we may think of it as a trial error: The government failed to include the aggravating factor in its indictment and jury instructions—omitting an essential element of its case. Or we may think of it as a sentencing error: Legins was properly charged and convicted of a baseline
The choice between these two options dictates how we conduct harmless-error analysis. For trial еrrors—such as the omission of an element from the indictment and jury instructions—we ask whether the jury would have reached the same verdict had the element been included. See Greer v. United States, 141 S. Ct. 2090, 2100 (2021); id. at 2102 (Sotomayor, J., concurring in part) (“[A] constitutional [trial] error is harmless only if there is no reasonable doubt about whether it affected the jury‘s actual verdict in the actual trial.“); Neder, 527 U.S. at 18. In Neder, for instance, the defendant was charged
no rational jury could have found that Neder‘s statements were immaterial given the “overwhelming” and “uncontroverted” evidence of materiality. Id. at 16-18. The Court focused on the trial error because without the omitted element there was no crime on which Neder could be sentenced. Thus, Neder made clear that omitting an element is a trial error when the conduct is not a crime without the missing element.
But courts struggled with whether the same held true when the missing element was perceived as a sentencing factor, which affects the statutory sentencing range. In such a case, the defendant would still be guilty of an offense without the omitted element, just one carrying a lower possible sentence. So we might characterize that sort of missing-element error as a “sentencing” error; the court erroneously sentenced the defendant based on the greater crime instead of the lesser crime of which he was convicted. In that case, the error would be harmless if “the result at sentencing would have been the same” without the error. United States v. Montes-Flores, 736 F.3d 357, 370 (4th Cir. 2013). In other words, had the defendant been sentenced based on the crime for which he was charged and convicted, would he have received the same sentence?
Our circuit adopted this sentencing-error approach in United States v. Promise, 255 F.3d 150, 160 (4th Cir. 2001) (en banc). In Promise, as here, the district court imposеd a statutory sentence enhancement (for certain drug amounts) that was not in the indictment or jury verdict. Id. at 153. Because the defendant did not object below under Apprendi (which had not yet been decided), we reviewed for plain error. Like harmless error, plain-error review requires the court to assess whether the error affected the defendant‘s “substantial rights.” Compare
Chief Judge Wilkinson advocated for the trial-error approach: Although the government and court had failed to include the drug quantities in Promise‘s indictment and verdict form, the evidence of those drug amounts was overwhelming and uncontroverted. Promise, 255 F.3d at 166 (Wilkinson, C.J., concurring in part). So, Chief Judge Wilkinson concluded, the jury would have reached the same verdict even if the missing sentencing factor had been included in the indictment and jury instructions, and there was accordingly no error affecting Promise‘s substantial rights. Id.
But his view did not convince the court, which concluded that “the failure to charge a specific threshold drug quantity in the indictment or to instruct the jury regarding threshold drug quantity was not the error committed by the district court . . . What was not valid was the sentence imposed, which exceeded the applicable maximum for the facts charged and proven.” Id. at 160 n.8 (majority opinion). So the court implicitly rejected Neder‘s trial-focused harmless-error standard, instead looking to whether the error affected Promise‘s sentence. And because Promise received a higher sentence than he would have had the Apprendi error not occurred,
In the years that followed, our circuit applied Promise‘s sentencing conception of Apprendi errors in harmless-error analyses. See United States v. Stokes, 261 F.3d 496, 501 (4th Cir. 2001); United States v. Chase, 296 F.3d 247, 250 (4th Cir. 2002). We did so most expressly in United States v. Mackins, 315 F.3d 399 (4th Cir. 2003). As in Promise, the three defendants in Mackins were convicted of drug crimes, but neither the indictment nor jury form indicated the quantities of drugs involved. Id. at 404-05. When the judge determined those quantities at sentencing to increase the defendants’ sentences, one of the defendants objected. Id. at 407. While conceding that an Apprendi error had occurred, the Government argued that it was harmless because the evidence of the drug amounts was “‘overwhelming’ and ‘uncontroverted.‘” Id. at 409. The court rejected that argument. Relying on Promise and cases applying it, the court held that the proper harmless-error inquiry for an Apprendi sentencing error “is whether ‘it . . . result[ed] in a sentence greater than that which would otherwise have been imposed.‘” Id. at 409 (quoting Chase, 296 F.3d at 250).
But three years later in Washington v. Recuenco, 548 U.S. 212 (2006), the Supreme Court directed that we are to apply the same harmless-error standard from Neder to cases involving omitted sentencing factors. Arturo Recuenco threatened his wife with a handgun, for which he was charged in state court with assault with a deadly weapon. Id. at 214. The jury found Recuenco guilty of assault and specified that the assault had been committed with a “deadly weapon.” But at sentencing, rather than impose a 1-year mandatory sentencing enhancement for assaults involving a “deadly weapon,” the judge imposed a 3-year mandatory enhancement for assaults involving a “firearm.” Id. at 215. The Washington Supreme Court held that this was an Apprendi error because the defendant was sentenced on an offense of assault with a firearm even though the firearm element was neither charged nor found by the jury. Id. at 216. The state supreme court then held that this error was “structural“—i.e., can never be “harmless“—and accordingly vacated Recuenco‘s sentence. Id.
The United States Supreme Court reversed, holding that Apprendi errors, like most constitutional errors, can be harmless. Id. at 220. That top-line holding does not, of course, resolve how to perform the harmless-error analysis. But the Court‘s rationale makes that аnswer clear. The Court began by describing Neder, in which, to reiterate, the Court held that the omission of an element of the offense may be harmless if it is “uncontested and supported by overwhelming evidence.” Neder, 527 U.S. at 17. Recuenco then explained:
The State and the United States urge that this case is indistinguishable from Neder. We agree. Our decision in Apprendi makes clear that “[a]ny possible distinction between an ‘element’ of a felony offense and a ‘sentencing factor’ was unknown to the practice of criminal indictment, trial by jury, and judgment by court as it existed during the years surrounding our Nation‘s founding.”
548 U.S. at 220 (quoting Apprendi, 530 U.S. at 478).
Recuenco argued that Neder‘s trial-error approach did not apply because he was charged and convicted of one distinct crime (assault with a deadly weapon) but sentenced for another (assault with a firearm); this amounted, he argued, to “a directed
But the Court was unpersuaded. Under Apprendi, the Court noted, “elements and sentencing factors must be treated the same for Sixth Amendment purposes.” Id. at 220 (majority opinion). Both Recuenco and Neder were sentenced for a crime which they were almost, but not exactly, charged and found guilty. For Neder, the missing element was materiality. Id. at 221. For Recuenco, it was use of a firearm. That Recuenco‘s crime, without the missing element, was itself a different crime did not, in the Court‘s view, make any difference. Id. Holding otherwise, the Court noted, would produce bizarre results. If Washington, for instance, only criminalized “assault in the second degree while armed with a firearm,” then the omission of the “with a firearm” element could be harmless error under the standard in Neder. Id. at 221-22. To hold that Neder applied in that case, but not in Recuenco‘s would, in the Court‘s view, defy logic. Id. at 222.
The takeaway from Recuenco is clear: The Government‘s failure to include a sentence-enhancing factor in the indictmеnt and jury charge should be treated exactly like its failure to include any other element of an offense. And the proper way to perform harmless-error analysis in both cases is to ask whether proof of the missing element is “overwhelming” and “uncontroverted.” Neder, 527 U.S. at 17-18. In the years following Recuenco, that is how we, along with most of our sister circuits, have analyzed preserved Apprendi errors. United States v. Catone, 769 F.3d 866, 874 (4th Cir. 2014); accord United States v. Harakaly, 734 F.3d 88, 95-97 (1st Cir. 2013); United States v. Confredo, 528 F.3d 143, 156 (2d Cir. 2008); Tarver v. Banks, 541 F. App‘x 434, 438-39 (5th Cir. 2013); United States v. Kuehne, 547 F.3d 667, 681 n.4 (6th Cir. 2008); United States v. Hollingsworth, 495 F.3d 795, 806 (7th Cir. 2007); United States v. Guerrero-Jasso, 752 F.3d 1186, 1193 (9th Cir. 2014); United States v. King, 751 F.3d 1268, 1279-80 (11th Cir. 2014); United States v. Lopesierra-Gutierrez, 708 F.3d 193, 208 (D.C. Cir. 2013); contra United States v. Lewis, 802 F.3d 449, 456 (3d Cir. 2015) (en banc) (treating Apprendi error as a sentencing error and declining to apply Neder harmless-error test).
In Catone, the defendant was charged and convicted of making false statements relating to federal benefits, violating
We therefore apply the harmless-error analysis supplied by Neder to the Apprendi error before us. To do so, we ask whether there is overwhelming and uncontroverted evidence that the “matter” within law enforcement‘s jurisdiction when they questioned Legins “related” to a Chapter 109A offense. Chapter 109A is entitled “Sexual Abuse,” and includes
It is also uncontroverted: During his argument in the district court as to why the sentence enhancement should not apply, Legins conceded that “it would be disingenuous of defense counsel to argue that the false statements which are before the court do not relate to offenses under Chapter 109(A)” because the alleged false statements “were in connection with Counts One through Four, three of which are in Chapter 109(A).” Def.‘s Position on Statutory Maximum at 2, United States v. Legins, No. 3:19-cr-00104-DJN-1 (E.D. Va. Mar. 12, 2020), ECF No. 144. Because the elements of an 8-year aggravated
We acknowledge that there is something deeply unsatisfying about this result. As Justice Scalia observed in his partial dissent in Neder, it is bizarre that a deprivation of the jury right, which reflects a distrust of judges to adjudicate criminal guilt, can be set aside as harmless when we judges find the result sufficiently clear. 527 U.S. at 32 (Scalia, J., dissenting in part). It creates an inescapable irony, “in which the remedy for a constitutional violation by a trial judge (making the determination of criminal guilt reserved to the jury) is a repetition of the same constitutional violation by the appellate court (making the determination of guilt reserved to the jury).” Id. And, as Justice Ginsburg noted in her Recuenco dissent, it is particularly unsettling in this context, when the defendant, “charged with one crime . . . was convicted of another
Such a practice “diminishes the jury‘s historic capacity ‘to prevent the punishment from getting too far out of line with the crime.‘” Id. (quoting United States v. Mayberry, 274 F.2d 899, 902 (2d Cir. 1960) (Friendly, J.)). But these arguments did not prevail and are not the law. Instead, we are bound by the majority opinions that rejected them, opinions holding that (1) omission of an element is harmless if evidence of the element is overwhelming and uncontroverted and (2) that the rule applies to all elements, including sentencing factors. And that resolves this case.
We also take some solace in the fact that this rule, properly applied, is a narrow one. It demands the government prove, beyond a reasonable doubt, that the jury would have convicted—also beyond a reasonable doubt—had the aggravating factor been submitted to them. This requires considering both record evidence and possible exculpatory evidence the defendant might have submitted if the crime had been properly charged. And if there is any reasonable possibility that a juror might have chosen not to convict, then the error was not harmless. Here, the aggravating factor is conclusively shown by evidence of unquestioned authenticity, and Legins has conceded—even after learning of the Apprendi issue—that it was, as a factual matter, satisfied. So the evidence is truly “overwhelming” and “uncontroverted,” and Legins‘s Apprendi challenge is purely formalistic and procedural. We reaffirm that an Apprendi error is harmless under these narrow circumstances.21
C. The Sentence Imposed was Reasonable
Legins also challenges his sentence as unreasonable. We review the reasonableness of the district court‘s sentence under “a deferential abuse-of-discretion standard,” even if the sentence is within the guidelines range. Gall v. United States, 552 U.S. 38, 41 (2007).
First, Legins argues that the district court erred in “departing” upwards from the guidelines sentence. But the district court did not grant an upward departure, it granted an upward variance. “Departures are enhancements of, or subtractions from, a guidelines calсulation ‘based on a specific Guidelines departure provision.’ . . . Variances, in contrast, are discretionary changes to a guidelines sentencing range based on a judge‘s review of all the
Next, Legins argues that the district court erred in finding that he had committed certain sexual acts with B.L. in March and May 2018. The district court found that during the March incident, “Defendant at least engaged in consensual sexual contact with B.L., including masturbation,
In selecting a sentence, a court may rely on aggravating—or mitigating—facts found by only a preponderance of the evidence. United States v. Grubbs, 585 F.3d 793, 798-99 (4th Cir. 2009). We review those factual findings for clear error. United States v. Savage, 885 F.3d 212, 225 (4th Cir. 2018). Clear error exists when “after reviewing all the evidence, we are ‘left with the definite and firm conviction that a mistake has been committed.‘” United States v. Steffen, 741 F.3d 411, 415 (4th Cir. 2013) (quoting United States v. May, 359 F.3d 683, 688 (4th Cir. 2004)). “When reviewing factual findings for clear error, ‘[w]e particularly defer to a district court‘s credibility determinations, for it is the role of the district court to observe witnesses and weigh their credibility . . . .‘” United States v. Palmer, 820 F.3d 640, 653 (4th Cir. 2016) (quoting United States v. Abu Ali, 528 F.3d 210, 232 (4th Cir. 2008)).
First, there was substantial evidence that some form of sexual contact occurred between Legins and B.L. during the March incident. To begin with, B.L.‘s testimony that he was forced to perform oral sex on Legins may be adequate under a preponderance standard even if not corroborated by physical evidence. The district court believed that B.L. was a credible witness, a credibility determination to which we owe great deference. Furthermore, surveillance footage from that day shows B.L. and Legins entering the unmonitored area in which the elevator was located, where they remained for 5 minutes. Finally, the sweatshirt that B.L. was shown to be wearing in that footage tested positive for Legins‘s DNA. The district concluded, based on this evidence, that it was more likely than not that some form of sexual contact occurred between B.L. and Legins on March 16, 2018. We are not “left with the definite and firm conviction” that this was error.
And, as we have already discussed, there was also substаntial evidence that some form of sexual encounter—consensual or otherwise—occurred between Legins and B.L. on May 10, 2018. For the same reasons that the jury possessed sufficient evidence to conclude beyond a reasonable doubt that such an act occurred, the court did not clearly err in finding so by a preponderance of the evidence.
Finally, Legins argues that “[t]he use of acquitted crimes [i.e., the March and May sexual incidents] to calculate an initial guideline range deprives a defendant of his Sixth Amendment right to a sentence wholly authorized by the jury‘s verdict.” Op. Br. of Appellant 35. Legins‘s argument is incorrect on both the facts and the law. Factually, Legins is incorrect that the district court used acquitted conduct to calculate his initial guideline range. The district court calculated Legins‘s initial guidelines range as 27-33 months, based solely on the
We thus conclude that Legins‘s sentence was reasonable.
* * *
The district court erred in applying the statutory enhancement without an authorizing jury verdict. Doing so violated Legins‘s constitutional rights under Apprendi. But that error does not warrant reversal under Recuenco and Neder. As Legins‘s remaining claims for relief lack merit, the district court‘s judgment is
AFFIRMED.