United States v. Courtney Butler (98-5552) and Julius Retic (98-5554)

III. Conclusion reasons, we affirm the foregoing

For the of the district court.

decision America,

UNITED STATES of

Plaintiff-Appellee, (98-5552)

Courtney BUTLER (98-5554), De

Julius Retic

fendants-Appellants. 98-5552, 98-5554.

Nos. of Appeals,

United States Court Circuit.

Sixth

Argued and Submitted: June

Decided and Filed: March promulgate sentence and REMAND ing Sentencing Commission his case for re- provide such en- sentencing. or amend aged hancement for defendants older, invalid, guideline was thus I.

regardless Congress’s express failure to 19, 1997, February On a grand federal disagreement guideline after its en- jury sitting in the Western District of Ten- (Per of concurring opinion actment. Circuit charging nessee returned an indictment court.) Judge majority Jones for a Courtney Retie, along Butler and Julius Violent Crime Control and Law Enforce- individuals, with three other with twelve § ment Act of 28 U.S.C.A. activity. counts of criminal The relevant SB1.4, note; § § 994 18 U.S.C.A. U.S.S.G. surrounding facts separate their offenses and their respective sentencings are as briefed), Tony (argued R. Arvin and follows. TN, Atty., Memphis, for Plain- Asst. U.S. tiff-Appellee. A. BUTLER (briefed), Salky Randall P. Law Office of 29, 1996, May On Butler and Julian TN, Salky, Memphis, Randall for Defen- Shelton robbed the Bank in Volunteer Courtney Butler. dant-Appellant Henning, Tennessee. During robbery, briefed), Stephen (argued R. Leffler and wig Butler wore a covered with a hat and TN, Defendant-Appellant for Memphis, hat, safety glasses Shelton wore and a Julius Retie. while gun. Shelton was armed with a hand CLAY, JONES, COLE, Before: and $12,269 Together they stole a total of from Judges. Circuit grand jury the bank. When the federal indictment, handed down its twelve-count CLAY, J., of judgment announced the charged it Butler in aiding Count 5 with court in opinion, and delivered abetting robbery and armed bank in viola- COLE, JJ., which JONES and concurred § § 2 tion of 18 U.S.C. 2113 and 18 U.S.C. JONES, Part II.B.l. except (pp. as to J. in in participation connection with his 849-52), opinion, a separate delivered robbery at Volunteer Bank. The indict- COLE, concurred, which J. which charged ment also Butler Counts opinion constitutes the of the court on the through through Counts 6 and Counts issue addressed Part II.B.l. 11 and 12 with numerous bank other rob- during and the use of firearms those beries OPINION 5, 1998, plead- offenses. March Butler On CLAY, Judge. Circuit guilty ed to Count 5 of the indictment Courtney appeals Defendant Butler pursuant plea agreement to a which the from his of conviction and judgment sen- government remaining dismissed the tence to 235 months of for imprisonment charges against him. robbery his of armed bank commission 3, 1998, April At on the dis- violation of 18 U.S.C. 2113 and 18 U.S.C. had trict court determined that Butler § 2. appeals Defendant Julius Retie from him qualified three convictions that for judgment his and of conviction sentence to under 4B1.1 of career offender status his com- imprisonment months of for Sentencing Specifically, Guidelines. robbery mission of bank in violation armed the district court took note of a 1990 con- of 18 2113 and 18 and U.S.C. U.S.C. cocaine, for conspiracy viction sell using carrying during for a firearm delivery 1994 conviction for of under a and in relation to crime violation cocaine, 924(c). half-gram and a 1994 conviction below, For the reasons U.S.C. aggravated burglary. Additionally, for AFFIRM judgment we of the district Butler, request court court denied Butler’s for a as but VACATE Retic’s district 3, 1998, Retie April held on ing hearing court The district departure. downward pursu- in his sentence received a reduction history catego- criminal enhanced Butler’s Guide- ant to 5K1.1 of Butler and sentenced ry accordingly, responsibility. acceptance lines imprisonment, 235 months of However, Ret- district court enhanced release, of restitu- payment supervised pursuant two levels $6,134.50,or one-half ic’s offense level in the amount of tion grounds on the timely Butler filed a of the Guidelines the bank. the loss to minor, Harden, April encouraged Court on that he had appeal to this notice in the crime. The district participate sixty ultimately sentenced Retie to B. RETIC for Count imprisonment months of imprisonment for sixty months of Count twenty, July at the On 12, filed consecutively. Retie to be served in Union Bank the Munford Retie robbed appeal to this Court on timely a notice Atoka, Curtis Har- along with Tennessee 15,1998. April den, at the seventeen who was in waiting nearby get- a Butler was time. II. robbery, the which away During vehicle. afternoon, middle of the place Court,

took the this both Butler and Before of a handgun to the head put Retie a sentences, challenge only their and Retie instructed representative, service customer re underlying not their convictions. We button, and told push not to the alarm her legal conclusions view the district court’s moved, her. “cap” if he would her that she Sentencing the Guidelines de regarding not asked Retie repeatedly Harden Garner, v. 940 novo. See United States and Retie com- representative, shoot the (6th Cir.1991). Moreover, F.2d 174 the teller counter plied. jumped Harden findings a district court’s factual we review robbery, the money. During and removed for applying Sentencing the Guidelines her a bank teller motion to Retie saw Latouf, clear error. See United children, who were about to husband and (6th Cir.1997). 132 F.3d up, her not to enter. pick enter the bank to A. and children Retie ordered the husband Harden were into the bank. As Retic and argues Butler the district court bank, anoth- leaving they the encountered by sentencing him as a career of- erred him, pointed grabbed Retie er customer. the pursuant fender Guide- him gun at him and ordered into the provide that a de- lines. Guidelines Harden left Ultimately, bank. Retic and (1) if is a career offender he was fendant $16,330. Later that eve- the bank with the of- eighteen least when he committed up Harden walk- ning, police picked local (2) conviction; the offense of con- fense of later ing along highway. Harden felony a that is a crime of vio- viction is identifying an Butler as made admission offense; lence or a controlled substance robbery planned the individual who (3) defendant has at least two and accompa- Retic as the individual who and of crimes of vio- prior felony convictions him nied into bank. substance offenses. lence or controlled incident, further in- 4B1.1. The Guidelines In connection with this See USSG of- that a “controlled substance charged provide Retie Count with dictment offense, any felony state or in violation of 18 fense” includes robbery armed bank federal, a that involves the distribution of § 2113 and U.S.C. 18 U.S.C. See USSG carrying a fire- controlled substance. using Count 4B1.2(b). argues Butler that of the to that bank during arm relation 924(c). court cited in three convictions the district robbery in violation of 18 U.S.C. enhancement, 16, 1997, guilty support of its July pleaded On Retie 14, 1997, offenses” were he two “controlled substance and on November Count offenses and the actually simple possession At a pleaded guilty to sentenc- Count third, 193, 199, aggravated burglary, for a conviction U.S. Therefore, (1992) Act, 117 L.Ed.2d 341 was not a crime of violence. Under the . did not argues, prior may only appeal Butler his convictions defendant his sentence if (1) (2) law; offender. Butler’s it qualify imposed him as a career was violation of are in vain. reflects an incorrect arguments application of the Sen Guidelines; (3) tencing greater is than the determining particu whether specified applicable sentence in the Guide a “controlled lar offense constitutes sub (4) range; imposed lines was a “crime violence” stance offense” or offense for which there is no sentencing Guidelines, employs under the Court unreasonable. See guideline plainly and is “limited to an exami categorical approach 3742(a) 18 U.S.C. un Generally, fact conviction and the nation may appeal der a defendant if the statutory predicate definition of the of departs district court upward from the Arnold, fense.” United States range, government may Guideline and the (6th Cir.1995). 1117, 1121 ap Under this appeal if the district court departs down “ only impermissible, ‘it not but proach, Williams, wards. See U.S. pointless, through for the court to look consistently S.Ct. 1112. haveWe held that defendant’s actual criminal con the decision a district court not ” Id. United States ...’ (quoting duct. depart downwards from the Guidelines is (3d Cir.1991)). John, appeal not reviewable on the unless record Indeed, categorical approach the elimi reflects that court the district was not “ poten practical nates ‘the difficulties aware of or did not understand its discre to approach’ tial unfairness of a factual See Unit departure. tion to make such a prior conviction.” See States each Landers, (6th ed v. States 649 (6th v. Kaplansky, Cir. Cir.1994). States, 1994) (quoting Taylor United Butler the Although contends that dis- 575, 600-02, U.S. granted trict court should have him a (1990)). L.Ed.2d 607 departure grounds downward the on con Significantly, Butler does not capacity he had a diminished due to alco- test the fact of his conviction for the three drug hol and abuse and had a because he offenses, cited and does not contest that childhood, argue— traumatic he does not the statutes under which he was convicted he cannot—that the likely because district are “controlled statutes criminalize ability court did not understand its to of substance offenses” “crimes vio Indeed, departure. make such a the dis- Rather, argues lence.” he that this Court trict court stated: categorical approach should eschew the de anything factually is really There not by looking scribed at the above substantive about this case that would warrant a facts behind each of those offenses. Be departure. downward The defendant’s improper go cause it is for a court family circumstances and his back- beyond the fact of conviction and the defi They ground are not unusual. are rela- nitions of the statutes under which Butler tively typical people engaged crimi- was convicted to determine whether he nal conduct. There is no indication that offender, qualified as a career the district drug any way his or alcohol use con- enhancing court did err in Butler’s not capacity as contend- stituted diminished § 4B1.1 sentence under of the Guidelines. objections. just in the There is noth- ed Finally, although argues Butler ing this case that would amount depart appropriate legal that the district court should have either an basis for a him, sentencing departure ed this downward or that would downwards legal claim amount to an for appropriate is unreviewable. The basis (“Act”) provides departure Reform Act of 1984 a downward or would appellate factually appropriate limited review of sentences for amount to rea- offenses. See Williams United go guideline range. federal son to below the offense.” Id. (J.A. 113.) in the commission of the the dis- nor It seems clear that Although sentence enhancement creat- the depart power its recognized court trict language restrict- by Congress included ed merely its dis- but exercised downwards years application to defendants ing its Consequently, the to do so. not cretion older, age adopting or grant Butler a failure district court’s restriction, dropped Commission is not reviewable. departure downward appli- rendering sentence enhancement meritless, arguments Butler’s are Because Retie, ages. of all cable to defendants who is affirmed. his sentence old when he committed this years was 20 B. crime, argues goes 3B1.4 therefore Congress authorization beyond the limited this Retie makes before arguments granted, and that as a defendant under Court, decision of of which attack the both offense, the time of the he age court to enhance his offense the district subject to a sentence en- should not be sentencing pursuant to 3B1.4 level at involving a minor in his hancement for differently. are viewed the Guidelines Although argument this carries crime. the defen- provides “[i]f 3B1.4 Section it lacks merit. appeal, some facial attempted person or dant used use created the Commis to commit eighteen less than sion, charging “establish[ing] it with sen detection avoiding offense or assist tencing policies practices for the Fed offense,” for, of, apprehension justice system.” eral criminal U.S.C. may increase defendant’s district (1985). delegation Since this by two levels. 3B1.4 level USSG offense constitutional, was power challenge to In his promulgated by the Commission enhancement, argues, for the first Retie See Mistret federal courts. now bind Court, extent that to the time before 361, 391, 109 ta v. United applies to defendants of the enhancement (1989). 647, 714 Al 102 L.Ed.2d S.Ct. goes beyond the any age, provision the legitimately granted the though Congress Congress granted of the mandate scope “significant discretion for Commission (“Commis- Sentencing the Commission 377, mulating guidelines,” id. 109 S.Ct. sion”). if argues He further that even 647, the Commission discretion valid, the district should 3B1.4 is specific to the directives of “must bow it in his case he applied not have because LaBonte, Congress.” 520 attempt to Harden did use or use not 1673, 751, 757, 117 137 L.Ed.2d U.S. S.Ct. robbery. Retie does not during the bank (1997). seeks When the Commission argument 3B1.4 is succeed with his a guideline, to amend a it must submit invalid; however, argument generally his Congress, along proposed to amendment to provision apply does not his the amendment, the explaining with reasons meritorious. case days, or give Congress and must months, disap- or roughly modify six 1. See the prove amendment. U.S.C. Congress precursor enacted the (1994). 994(p) “report Under this and passed when it the Violent Crime act, Congress if fails to the provision, wait” Enforcement Control and Law Act See will take effect. proposed amendment 103-322, No. 108 Stat. Pub.L. account, id. into Taking process this (1994). enabling provision This di- “[wjhen recognized Con- Court has to “promulgate the Commission rected disagree and the on gress Commission existing guidelines to guidelines or amend sentencing policy, Congress matters years age or that a defendant provide the Guidelines trumps.... Where (an conflict, has been convicted of ah offense older who the statute act of Con- statute Gaines, controls.” United States v. en- appropriate shall receive an sentence gress) (6th Cir.1997). mi- 122 F.3d if defendant involved hancement guideline Sentencing ment 527 to the To determine whether Guidelines. App. See C. USSG accordance is at odds with adopted the Commission statutory procedures with regarding the Congress and must there- the directives Guidelines, proposal of to the amendments way, language of the statute give fore the Commission then submitted Amend- LaBonte, at first. See is looked 527, along many ment with other proposed 757, 117 1673. In the statute amendments, 1, 1995, Congress on May 3B1.4, adopted enabling Congress specified an effective date of Novem- following language: 1, 1995. ber See Amendments to the Sen- OF SEC. SOLICITATION tencing Guidelines for the United States CRIME MINOR TO COMMIT Courts, Fed.Reg. (May (a) Sentencing Directive to Commission. 1995). Significantly, submitting Amend- (1) The United States Com- ment stated Commission as promulgate guidelines or mission shall proposal reason for its the amend- provide existing amend “implements ment the directive Section years that a defendant 21 or older 140008 of the Violent Crime Control and who has been convicted of an offense (pertaining Law Enforcement Act of 1994 receive an sentence en- appropriate shall to the use of a minor in the commission of if hancement the defendant involved a offense) in a slightly broader form.” 60 minor in the commission of the offense. 30, 1995, Fed.Reg. at 25086. On October (2) rejected considered shall some of provide The Commission 1, 1995, proposed May the amendments on guideline promulgated enhancement No. see Pub.L. 109 Stat. 334 (1) shall pursuant paragraph apply (1995), modify disap- but did not act to which any offense relation to Thus, prove Amendment 527.1 Amend- solicited, procured, defendant has re- ment codified as ef- became cruited, counseled, trained, encouraged, on fective November 1995. See USSG directed, commanded, intimidated, or C. App. attempted any otherwise used or to use Against backdrop, this historical Retie person less than 18 with essentially invites Court to hold that intent that the minor would commit spite of inaction when faced its a Federal offense. intended, 527, Congress as it Amendment Violent Crime Control and Law Enforce- 140008, § originally stated in that sentence 1994, ment Act of Pub.L. No. involvement of mi- enhancements the (1994). 140008, § 108 Stat. 2033 At first to apply only nors crime should defen- blush, alleges, it Retie appears, as age who are 21 of and older. dants in un- Congress provided intended —and context, the invitation cannot Given Retic’s terms —for sentence enhance- ambiguous that allowed accepted. provision be The ment for solicitation of a minor to commit and Congress six months to review dis- only age 21 and old- crime for defendants Amendment 527 resembles the “re- place A expression congressional er. clearer of port provision enabling and wait” of the unimaginable. intent acts for the Federal Rules of Civil Proce- However, Congress’ expression of intent dure and the Federal Rules of Evidence. begin § as to 3B1.4 did not and end with Scampini, See United States §of 140008. the its enactment When (9th Cir.1990) 350, (quoting § 1315, drafted 3B1.4 to reflect the Smith, Commission 1318-19 F.Supp. (D.Minn.1989)). congressional set forth Supreme directive The Court has validity “report § of and by proposing long it did so Amend- affirmed the example, Congress disapproved the same as it treats one who deals in 1. For of a cocaine proposed amendment that would have elimi- powder much cocaine. See 100 times as sentencing Gaines, nated the 100:1 ratio that treats 122 F.3d at 327. given quantity who deals in a of crack one by allowing an amend- (concluding that significance the of and procedures wait” effect, the to take Con- ment to Guidelines proce- under such inaction congressional the new gives “imprimatur” its gress the dures, challenging in a case observing Thus, in- although the initial guideline). that: Procedure Rules of Civil Federal would have been at odds Congress tent of pow- of the value of the reservation The 3B1.4, history pas- § the behind the with rules, laws proposed er to examine finding that the sage compels of 3B1.4 they become effective regulations before Congress changed. While first intent of It is by Congress. is well understood the Commis- Congress expressly directed here, employed to make frequently, as the sion to exclude defendants under delegation action under the sure that the enhancement, of 21 from this sentence purpose. Congressional with the squares “report its inaction under the through felt rule was Evidently Congress Congress ulti- provision 994(p), wait” no of the statute as within ambit mately express disagreement failed to it was made to eliminate from effort to include expansion of the enhancement rules, ... although proposed body under the of 21. This is defendants Draft rules Preliminary of the [t]he not the situation which the intent contrary practice attention to the called Congress position adopted and the ..., Report Advisory as did odds; are at there- Sentencing Guidelines prepared by and the Notes Committee valid, fore, the enactment of 3B1.4 was the final accompany the Committee to overstep did not and the Commission rules. That no adverse version authority. of its bounds indicates, by Congress action was taken least, legisla- transgression that no policy tive was found. We conclude prevail cannot in his Since Retie under attack are within the the rules 3B1.4, validity general attack on the authority granted. it im we turn now to his claim that was Co., Inc., v. Wilson & 312 U.S. Sibbach proper apply for the district court (1941). L.Ed. 479 61 S.Ct. given Spe the facts of his case. 3B1.4 the en has continued to find valid Court cifically, proof he the absence of cites “report and wait” through actment of rules dur attempted he used or to use Harden See, Airlines, provisions. e.g., Alaska Inc. robbery. determining ing the bank Brock, n. 480 U.S. 690 & attempted whether a defendant “used or (1987); 94 L.Ed.2d 661 INS v. S.Ct. use” a minor so as to warrant a Chadha, 9, 103 n. 935 & enhancement, court should 2764, 77 L.Ed.2d 317 “ attempted ‘[u]sed bear mind re- These cases instruct commanding, en directing, use’ includes opportunity to review served for itself train couraging, intimidating, counseling, proposed amendments soliciting.” ing, procuring, recruiting, or through “report provision, and wait” (n.l). comment. This USSG by failing modify disap- to act to meaning of yet Court has to construe the when notified prove Amendment 527 even phrase “attempted the term “use” or the it was different from the directive to use” in this context. See United States 140008, effect, Congress, §in (6th enacted 1062, Harris, v. 1067 Cir. appro- 527 an approved 1999) of Amendment as § (finding prop 3B1.4 enhancement minor, priate policy reflection of its on the sen- “used” a er not because defendant those who involved minors tencing of because the minor “assisted” defen but offense). avoiding their crimes. United States v. Munoz- detection of the dant Cf. (11th Cir.1994) new,2 375, very provision fairly 21 few Realpe, F.3d Since the applied by USSG.App. § See C. of 3B1.4 the dis- 1995. The version 1, became on November trict court effective at- proper the “use” or It was for the district court interpreted courts have See, plain language approach to take a in its 3B1.4. tempted aspect to use” 3B1.4, interpretation of because courts Benjamin, 116 F.3d United States v. e.g., must treat the if (7th “as Cir.1997); 1204, v. United States clear, they were a statute” and follow “the 98-50030, No. 1998 WL Lopez-Lopez, unambiguous language if man Cir.1998) there is no (9th (unpublished); at *1 a contrary ifestation of intent.” United LeFave, No. United States (6th Lewis, (9th Cir.1998) (un- 10362, at *1 1998 WL Cir.1990); Lopez-Lopez, see also 1998 WL published). *1 (holding may at that courts use Here, path the district court followed a ” meaning applying the “common of ‘use’ in similar to that taken somewhat 3B1.4). However, the district court re Benjamin, where the United court heavily lied aon definition for the term for the Appeals States Court Seventh “use,” not “encourage” and for the term pursuant an Circuit affirmed enhancement and even then chose not rely upon to to 3B1.4 where the defendant and “encourage” specifi definition of set forth “partner[s] minor were crime” and co- context, cally legal namely for the criminal 116 F.3d at 1206. While conspirators. instigate.” Dictionary “to Black’s Law conceding that the list of words set forth (6th ed.1990). The dictionary defines Commentary Application Note 1 of the to of; “use” as make use to convert to “[t]o pres- “would connote some provision service; employ; one’s to to avail oneself action,” the district sure or affirmative of; utilize; carry to to out a purpose or on the placed emphasis definition of; action by put means to into action or forth in “encouraged” the term as set service, especially attain end.” to Dictionary. publication Black’s Law That (6th ed.1990). Dictionary Black’s Law law, as criminal “encourage” “[i]n defines A consideration of the definitions of “use” action; give to incite to to instigate; to supports the notion that 3B1.4 would embolden; to; courage inspirit; to action require part more affirmative on the confident; confidence; raise to make Bailey of a defendant. See v. United forward; to advise.” Black’s Law help; 516 U.S. S.Ct. (6th ed.1990). Dictionary 527 The district (1995) (finding 133 L.Ed.2d court then found that: imply various definitions of ‘use’ “[t]hese Mr. Retic and Mr. Harden worked to- implementation”); action and see also Le- They the crime. gether commit Fave, *1 (observing 1998 WL another, helped they one encour- although mere awareness of minor’s simply by one another their own aged involvement would not warrant participation. presence and in- enhancement, payment by active a defen emboldening volvement each was an illegal dant to a minor for work would enhancement). other, I agree factor to the and so would merit such any that there is not indication that Mr. an effort to determine true mean- Retie, adult, Mr. pressuring as an was design ing language ... Harden as a minor he did use a as a whole well as the statute as described, minor in the sense that I have must consid- specific provision issue be I think that does fall within the Cartier, Inc., K Corp. ered. See Mart guideline range, although this is certain- 281, 291, 108 ly fairly not the clear—it’s a close issue falls L.Ed.2d 313 Section 3B1.4 language based on some of the other category sentencing guideline under a note. application the adjustments “Role in the entitled Offense.” (J.A. 70-71.) introductory § Our review of 3B1.4 Pt.B. The com- USSG Ch. disagree mentary part leads us to with the district this of the Guidelines “adjustments to analysis. court’s states that it sets forth upon possible proximi- the role the and “the relevance of the level based the offense committing in the of- played ty in between the offender and the defendant intro, B, minor(s) Pt. com- Ch. fense.” USSG involved in the offense.” generous 140008(b) added). the construction ment. Under (emphasis Congress’ § court, any defen- adopted district inclusion of these considerations indicates a with a minor in partnered dant who enhancement, § one that to deserve subject a en- crime would be two-level in simply participate must do more than effect, hancement, in a creating, “strict contrary If were crime with a minor. However, this liability enhancement.” true, ages of the offender and relative with the notion that the en- conflicts view irrelevant; by deeming the minor would be for defendants who hancement is reserved relevant,. Congress likely imagined an In- role in the offense. play particular a actually offender who exercised some con- deed, partici- if numerous adult defendants role in involv- trol or took some affirmative minor, along every with a pated in a crime ing the minor. would single one of the adult defendants Finally, it is instructive to consider the enhancement, subject the two-level be analogous statutory provision criminalizing they played of the roles in in- regardless juveniles drug trafficking, in the use a volving the minor in the crime. Such it for an adult to which makes unlawful ostensibly would render the charac- result hire, “knowingly intentionally employ, § in terization of 3B1.4 as a “role use, induce, entice, coerce, persuade, a adjustment a misnomer. offense” eighteen years age” person under Moreover, § drug violate federal laws. U.S.C. interpreted applied are to be so that (1998). Indeed, in giving the Commission they are consistent with statute authority to create them. authorized See Stinson United made indirect reference to this statute 36, 45, 113 it when observed that the Guidelines set (1993). Congress L.Ed.2d 598 labeled the forth a two-level sentence enhancement for provision enabling 3B1.4 “Solicitation involving drug crimes a minor in a traffick a Minor to Commit Crime.” Violent ing offense. See Violent Crime Control Crime Control and Law Enforcement Act and Law Enforcement Act of 1994, § dictionary 140008. The defines 140008(b)(3); (noting 2D1.1 its USSG “[ajsking; enticing; “solicitation” as ur convictions). application to Courts gent request. The inchoate offense of ask interpreting 861 have observed that ing engage illegal conduct.” someone juvenile where evidence shows was (6th ed.1990). Dictionary Black’s Law drug operation, involved in the defendant’s passively par As one could not solicit the government produce must additional crime, of a ticipation suggests minor that the showing evidence defendant was that the enhancement when a apply should responsible for some affirmative or active defendant takes affirmative acts to involve See, juvenile. e.g., “use” of the Moreover, setting a minor. while forth the McDonald, suggested definitions for the term “use” (D.C.Cir.1989). analyzing the sufficien adopted Application Note Section cy supporting of evidence 861 convic of “rele also identified number tion, proof juve we have looked for vant considerations” that indicate Con to the defendant in the nile’s subservience gress did not create intend to “strict liabil drug operation response to the claim ity anyone merely who enhancement” juvenile independent drug that the was an participates crime with a minor. Vio dealer over whom the defendant exerted lent Crime Control and Law Enforcement Seg no influence. See United States 1994, § example, Act of 140008. For Con ines, No. at *8 1996 WL gress instructed the Commission to consid (6th Cir.1996) Thus, it (unpublished). ap severity er “the of the crime that context, pears “using” defendant intended the minor to commit” the criminal activity en- the sentence of Retic and RE- carry out criminal CATE a minor to being equal partner tails more than MAND his case to the district court for a crime. committing in that minor resentencing. court Consequently, the district JONES, NATHANIEL R. Circuit The district

misapplied provision. COLE, J., Judge, concurring, with joining. Harden were found that Retic and in judgment We concur announced together who crime worked partners by Judge Clay, Judge and with most of Bank, failed to Union but rob the Munford Clay’s opinion. well-reasoned Neverthe- in affirmatively acted find that Retie less, Retie, we defendant believe addi- robbery Harden in the armed bank volve tion to for the stated in prevailing reasons partner. as his beyond merely acting II.B.2, correctly asserts that the United did not find that Retie direct district court counseled, commanded, intimidated, States Commission failed to ed, recruited, trained, a clear comport Congressional or solicited with di- procured, in the bank robb participation requirement Harden’s rective when it eliminated the concluded, Thus, ery.3 the district court twenty-one that defendant be least that showing evidence Har on the basis of subject old to to enhancement be robbery in the with Retie participated den under U.S.S.G. 3B1.4. We therefore re- they and on the inference “encour disagree regard to the anal- spectfully another, that Retie “used” Har aged” one ysis in II.B.l. requires a den. Because the term “use” matter, a preliminary As we are criminal showing of more than mere by untroubled the fact that Retie did not the district court erred partnership, particular legal argument make this below. in commit finding that Retie used minor court, clearly Before the Retie district enhancing crime and in Retic’s ting his challenged application of U.S.S.G. pursuant sentence two levels sentence, § 3B1.4 to enhance his J.A. at re Accordingly, Retic’s case is 3B1.4. 180-81; he with this complied therefore resentenc- manded to the district court for ob requirement Court’s a defendant ing. ject at the district court in order to avoid objection on See waiving appeal. III. Jarman, United States previously explained, As the district (6th Cir.1998). argu The additional as a sentencing court did not err Butler of that support ment he now makes § 4B1.1 of the pursuant career offender objection pure ques is one of law. “The Guidelines, authority aware of its and was proper interpretation simply tion is Butler, depart downwards statute,” application [relevant] simply exercised its discretion not to but factual de requiring amplified “no new However, a defendant do so. because Frederick Steel Co. v. Comm termination.” merely partner act as a must do more than Revenue, 375 F.2d issioner Internal crime, with a minor in in order to “use” a Cir.1967) (6th (internal quotations this en- minor in crime under omitted). such, As the fact and citation to Retic and his apply hancement does not below is argument that the was not raised Ac- erroneously imposed. sentence was id.-, also Hutton v. immaterial. See see cordingly, judgment we AFFIRM the Butler, 1062-63 & court as to but VA- United district ic, facts, best, robbery. planned the only Retic and as the individual who 3. The show likely Although equal authority it therefore seems more possessed Harden in their crime, commit a points Butler "directed” a minor to commission of the crime. As Retie out, opportunity did not not to the district court have it was Harden who directed Retie finding govern- because the representative at to make such shoot the customer service Moreover, charge against dropped Butler in ment its the bank. when asked about Butler, crime, robbery. particular with this identified and not Ret- connection Harden 850 (6th Cir.1974) disagree on (recognizing n. 15 Commission matters of sen-

1063 excep- an Co. articulated tencing policy, Congress trumps.”); Frederick Steel Unit- appellate rule that an general (6th tion to the Branham, v. 97 ed States F.3d 835 argument cannot entertain an based Cir.1996) (holding that the Commission below). excep- This theory on a not raised directive). Congressional contravened a tion is consistent with the rationale can conceive of a We not clearer why do not entertain issues generally we example presented than that here where it is “essential ... not raised below-—that flatly ignored the Commission has so parties opportunity ... have the Congressional clear directive. The Violent they all believe relevant offer the evidence Law Act Crime Control and Enforcement Singleton Wulff, v. 428 to the issues.” Sentencing of 1994 directed the Commis 120, 106, 2868, 96 49 L.Ed.2d U.S. S.Ct. “promulgate guidelines sion to or amend (1976) (internal quotations 826 citation existing guidelines provide that a defen omitted). argument presents When a new 21 years age dant or older-who has been law, question pure party neither has convicted of an offense shall receive an to offer rele- opportunity been denied appropriate sentence if the enhancement making evidence in its case. To the vant contrary, as has occurred the case sub defendant involved a minor the commis judice, full “opportu- both sides have had a sion of the offense.” Pub.L. No. nity present legal arguments (1994) whatever 140008, (emphasis 108 Stat. 2033 [they] may particular have” on issue. added). However, issuing § Id. simply age Commission removed the re Looking striction. See U.S.S.G. 3B1.4. argument only Not is Retic’s at the both face of the directive and the Court, persuasive. it is properly before this “ guideline, we are not convinced that the Although Congress delegated ‘signifi has ” age Commission’s re interpretation cant in formulating guidelines’ discretion “sufficiently striction is reasonable.” To Commission,' to the still Commission contrary, the guideline’s “interpreta specific “must bow to the directives LaBonte, tion” Congress.” overruling explicit United States v. 520 was direct 1673, U.S. 117 S.Ct. 137 L.Ed.2d Congressional declaration it because elimi (1997) 1001 v. (quoting Mistretta United limit, lock, nated the stock and barrel. 361, 377, response The Government’s feeble (1989)). ascertaining 102 L.Ed.2d 714 this facial conflict is that the Commission’s whether in properly the Commission has interpretation simply “implemented Con- directive, terpreted a courts therefore “de gress’s slightly directive in a broader fash- interpretation fer to as [the Commission’s] ion.” Br. at 9. Gov’t Its sole evidence is long ‘sufficiently as it is reasonable’ in the Commission’s own statement it light Congressional directive.” implementing was in “slightly the directive Williams, States 53 F.3d Sentencing broader form.” U.S. Commis- (6th Cir.1995) (quoting United States Manual, C, sion Appendix Guideline (4th Kennedy, Cir. argument Amendment 527 This 1994)); Notting see also United States v. First, unpersuasive for two reasons. re- (3d ham, Cir.1990) (“To F.2d flexively relying on the commission’s char- the extent enabling legislation acterization of its own amendment would direction, specific contains judicial in “determining abandon our role direction.”) comport must with that When accurately whether re- [the][a]mendment interpretation, Commission’s as em LaBonte, Congress’ flects intent.” in a guideline, square bodied does not impor- U.S. S.Ct. 1673. More intent, Congressional clear courts will not tantly, both the character- Commission’s apply guideline. See United Gaines, (6th Cir.1997) ization and the contention Government’s (“When specious. Eliminating and the are the minimum yet than “decided to allow the Com- provision” is far more dramatic requirement effect”). broader form” of introducing “slightly mission’s handiwork to take For As this case demon- original reasons, directive. by are not persuaded several we strates, age limit that without the Con- analysis. authorized, guideline originally gress stated in another Supreme As Court of situations where a whole host introduces case, Sentencing every si “[n]ot Guideline twenty one can re- age under defendants lence is Burns v. United pregnant.” engaging in crimi- enhancements for ceive U.S. or youths age, with of similar nal activities (1991) (citation omitted). L.Ed.2d than the defendants perhaps even older in Burns counseled that silence Court To situations such as themselves. resolve contrary when it is should not be “credited this, present underlying which do not to all other textual and contextual evidence age that the existence of an differ- concern congressional Although intent.” Id. older, party adult to influ- ential allows an that admittedly there is little evidence of engage wrongful a minor to or ence legislative beyond intent the initial di behavior,1 taking the adult-de- dangerous rective, original twenty-one we believe the rela- accomplice-minor’s fendant’s and the old limit year age sufficiently is clear hardly is ages into consideration tive argument overcome an from silence. concept. novel Model Penal Code Cf. 213.3(l)(a) (1962); CauPenal Code hesitance to infer too much from Our 261.5(d) (1999) (“Any person years by our concern mere “silence” is driven in an act of age engages or older who wholly doing so would lead courts with a minor unlawful sexual intercourse assessing abandon their role of whether age guilty of either a under guidelines comport Congres enacted with ”). felony ... This is misdemeanor or a Indeed, “can re Congress sional intent. bright-line role which the precisely the any all the as voke or amend or Guidelines in the directive at issue. We played limit 180-day waiting within the it sees fit either the limit was a core therefore find Mistretta, any ... at time.” period or directive, and its wholesale aspect of that U.S. 393-94, pro 647. All 109 S.Ct. than a comprised much more elimination subject are thus to review posed guidelines “slightly application. broader” rejection by Congress, and potential disagree Finally, respectfully we with theoretically guidelines all have enacted distinguished colleague’s utilization of our Heeding rejection. potential survived that “Congressional theory silence” to con that all enact “silence” thus dictate would Congress approved indeed clude inherently Congres satisfied ed points amendment. He the Commission’s intent, and would eliminate our vital sional period review which to the six-month in LaBonte and other role—described reject accept can or Commission Congress guideline cases—of the enacted squaring “Congress fact that guidelines, and to the original statutory language. See with the ultimately express disagreement failed to Indeed, 117 S.Ct. 1673. expansion of the to” enhancement Eighth panel already has taken Circuit one, twenty include defendants under (erroneous concluding step, this dramatic ap “an conclude that the amendment was believe) “[g]iven Congress’s ly, we propriate [Congressional] poli reflection of role, Sentencing Commis supervisory also States v. cy.” Ante at 846. See United is not formulation of the Guidelines sion’s (7th Munoz-Cerna, 207, 212 Cir. subject the Com judicial review unless 1995) (reading Congressional intent oversteps constitutional bounds.” mission noting “Congress opportunity had the Vincent, accept, reject, modify guideline Indeed, minor(s) Pub.L. involved in the offense." asked the Commission to 108 Stat. 2033 "possible No. take into account the relevance (1994). proximity between the offender and Cir.1999). (8th contrary, To the wé be must continue to appellate

lieve courts as an the Commission accountable

“hold[ ] powers.” limited Daniel J.

agency of

Freed, Federal in the Wake of Unacceptable Limits on

the Guidelines: Sentencers, 101 Yale L.J. Discretion of

1681, 1748 3B1.4 is in

We conclude U.S.S.G. Congressional with a clear di-

conflict articu-

rective. In addition to the reasons II.B.2, by Judge Clay

lated we believe vacated and Retic’s sentence must be for of a imposition

the case remanded new in accordance with the

sentence

directive’s limitation. America,

UNITED STATES of Plaintiff-Appellee, briefed), Mark (argued W. Osier Detroit, Attorney, Assistant United States Michigan, for Appellee. HUDSON, Defendant-Appellant. Steven briefed), (argued David C. Tholen No. 99-1035. Office, Detroit, Federal Public Defenders Appeals, United States Court of Michigan, Appellant. Circuit. Sixth Argued: WELLFORD, Feb. Before: BATCHELDER, DAUGHTREY, Decided and Filed: March Judges. Circuit

OPINION DAUGHTREY, Judge. Circuit defendant, Hudson, appeals Steven sentence, his imposed upon revocation of probation, alleging his the district in sentencing court erred him to a term of range incarceration in excess of the appli- original charge. cable on the For the rea- below, sons set out we affirm the district judgment. court’s pleaded guilty Hudson charge government to a of theft of proper ty and was sentenced to a term of two years’ probation, plus payment special aof assessment and restitution. He was sub sequently charged separate with two viola-

Case Details

Case Name: United States v. Courtney Butler (98-5552) and Julius Retic (98-5554)

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Mar 29, 2000

Citation: 207 F.3d 839

Docket Number: 98-5552, 98-5554

Court Abbreviation: 6th Cir.