UNITED STATES of America, Plaintiff-Appellee, v. Justin Michael JAMES, Defendant-Appellant.
No. 13-5908
United States Court of Appeals, Sixth Circuit
Aug. 4, 2014
761 F.3d 588
The government argues that this case is more like United States v. Huffman, 529 Fed. Appx. 426, 428-29 (6th Cir. 2013), in which we considered whether 1.5 million oxycodone pills (distributed to numerous patients) was relevant conduct despite Huffman‘s claim that she had distributed some for legitimate reasons. In its reasoning, the opinion does not state the number of patients or files; rather we relied on our belief that so many pills in such a short time in a town as tiny as Portsmouth, Ohio, sufficiently proved the illegality of all of the pills. We held:
A district court is allowed to estimate the quantity so long as the court can conclude that it is more likely than not that the defendant is actually responsible for an amount greater than or equal to the amount for which she is held legally responsible.
Id. at 430 (citing United States v. Jeross, 521 F.3d 562, 570 (6th Cir. 2008)). While not completely on point, this is certainly persuasive guidance on the law of this Circuit.
Because our opinion in Huffman, albeit unpublished, provides for estimation or approximation; because the Seventh Circuit cases are not compellingly on point; and because the district court here did provide an explanation for its decision (not merely a rote extrapolation from the few to the many or an unsupported estimation), we affirm the calculation of drug quantity made by the district court.
B.
The second issue is a challenge to the substantive reasonableness of the sentence, which we review for an abuse of discretion. United States v. Elmore, 743 F.3d 1068, 1072 (6th Cir. 2014). Dr. Rodriguez raised this issue in her “statement of issues presented,” but did not argue it separately in her brief or elaborate on this contention in any discernable way.
The district court actually sentenced Dr. Rodriguez to a below-guidelines sentence of 240 months in prison, as that was the statutory maximum. When imposing sentence, the court expressly considered the
III.
For the foregoing reasons, we AFFIRM the judgment of the district court.
BOGGS, Circuit Judge.
Justin James pleaded guilty to being a felon in possession of a firearm, in violation of
I
A
At sentencing, the parties accepted the facts stated in James‘s presentence report.1 On May 30, 2012, James was at the apartment of his girlfriend, Tabron Houston. While James was there, Percil Walls, also known as Pig, arrived. According to James, Walls had been fighting with Houston, and Walls kicked down Houston‘s apartment door, dragged her outside, and began punching, kicking, and choking her.2 James stated that five minutes into Walls‘s attack on Houston, he ran toward Walls,
James stated that, while he was away, Houston called to inform him that Walls had returned and “busted” her window. According to James, he returned to check on Houston and saw Walls running from the broken window. James stated that he “kind of got out of the car window” on the passenger side and fired one shot “up in the air.” The bullet struck a parked car.
The Memphis Police Department responded to a report of gunshots at Houston‘s apartment complex. Officers stopped and searched James‘s vehicle, which matched the description provided to them. In the trunk, officers found a black .40-caliber handgun and a loaded magazine.
Officers subsequently obtained a surveillance video of the incident. According to the presentence report, the video depicted a car entering the apartment complex and a man walking on the sidewalk. As the car approached the pedestrian, a man in the car climbed out of the front passenger window and fired a shot over the top of the car in the direction of the pedestrian. Several individuals ran from the scene. Officers identified James as the shooter in the video. James is a convicted felon.
B
On March 22, 2013, James pleaded guilty, without a plea agreement, to being a felon in possession of a firearm, in violation of
On June 28, 2013, the district court held a sentencing hearing. At sentencing, James objected to the application of the cross reference of § 2A2.1(a)(2) for attempted second-degree murder.4 The gov-
At sentencing, the government objected to a three-level—rather than a two-level—reduction for acceptance of responsibility. The government‘s rationale was that “the government had to introduce witnesses and testimony” to justify applying the attempted-murder cross reference. The district court granted the government‘s motion for only a two-level acceptance-of-responsibility reduction. This resulted in a total offense level of 25 and a criminal-history category of III, which corresponded to a guideline range of 70-87 months. After allocution and analysis of the
On appeal, James argues that applying the § 2A2.1(a)(2) cross reference was procedurally inappropriate because the act of attempting second-degree murder does not facilitate the underlying violation of
II
We review de novo a district court‘s legal conclusions underlying the guideline range chosen, and we review for clear error the court‘s factual findings. United States v. Bolds, 511 F.3d 568, 579 (6th Cir. 2007).
III
A. Application of the Cross Reference for Attempted Second-Degree Murder
1
James argues that the district court committed procedural error in determining his guideline range using the guideline for attempted second-degree murder. As in other cases interpreting the Guidelines, this case requires us to navigate the Manual‘s structure with a careful reading of its language.
The Guidelines Manual‘s statutory index specifies § 2K2.1 as the guideline section applicable to convictions under
Section 2X1.1, in turn, assigns offense levels for offenses of attempt, solicitation, or conspiracy not covered by a specific
Additionally, § 1B1.3, titled “Relevant Conduct (Factors that Determine the Guideline Range),” restricts how a sentencing court may apply the Manual‘s various cross-reference provisions. The section provides, in relevant part, that “cross references . . . shall be determined on the basis of . . . all acts . . . that occurred during the commission of the offense of conviction.” § 1B1.3(a)(1)(A).
James argues that his conduct does not satisfy the Manual‘s definition of “relevant conduct” because attempted second-degree murder is not a crime that facilitates a violation of
The problem with James‘s argument is that it imposes a restriction on “relevant conduct” that does not exist in the Manual. Nothing in the language of § 1B1.3 suggests that the alleged conduct must facilitate or further the underlying offense of conviction. And James points us to no case that has so interpreted “relevant conduct.” James cites United States v. Mayle, 334 F.3d 552 (6th Cir. 2003), in which we held that the sentencing court properly determined that a murder committed “in order to facilitate [a] fraud offense” was relevant conduct under § 1B1.3(a)(1). Id. at 564. Nothing in Mayle suggests, however, that the alleged conduct need always further the offense of conviction. In fact, even in Mayle, the dispositive finding for the court was that the murder “was conduct that occurred during the commission of the fraud offense,” which is the actual language of § 1B1.3(a)(1). Mayle, 334 F.3d at 564 (emphasis added). James also relies on a statement in United States v. Scolaro, 299 F.3d 956, 957 (8th Cir. 2002): “The plain meaning of [§ 1B1.3(a)(1)] contemplates conduct taken prior to, and in order to facilitate, the charged offense.” Again, nothing in Scolaro suggests that § 1B1.3(a)(1) requires that the relevant conduct facilitate the charged offense. Because James allegedly shot at Walls “during the commission of the offense of conviction“—i.e., while being a felon in possession of a firearm—the district court properly applied § 2A2.1(a)(2) as a cross reference for attempted second-degree murder.
2
James also argues that we “should not continue to allow defendants to be subjected to [the] practice” of being sentenced based on uncharged conduct. This view has support from some jurists. See United States v. Booker, 543 U.S. 220, 288, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (Stevens, J., dissenting, joined by Souter & Scalia, JJ.) (“[I]ncreasing a defendant‘s sentence on the basis of conduct not proved at trial
These views, however, do not represent prevailing law. Our task on appeal is limited to considering whether the district court‘s application of the cross reference was correct under existing law. It is. The Manual itself states that under § 1B1.3(a)(1), the “relevant conduct” “focus is on the specific acts and omissions for which the defendant is to be held accountable in determining the applicable guideline range, rather than on whether the defendant is criminally liable for an offense.” § 1B1.3 cmt. n. 1. And James himself recognizes that binding precedent forecloses his argument. See Appellant Br. 19. We have repeatedly held that the Manual allows uncharged conduct to form the basis for the base offense level and that such action is constitutional. United States v. Shafer, 199 F.3d 826, 830 (6th Cir. 1999) (“Our cases have interpreted the relevant conduct provision of § 1B1.3(a)(2) to include conduct of a criminal nature for which a defendant could not otherwise be held criminally liable.“); United States v. Davern, 970 F.2d 1490, 1494 (6th Cir. 1992) (en banc) (“The law in this Circuit is clear that a base offense level is determined by the amount of drugs included in the defendant‘s relevant conduct, not just amounts in the offense of conviction or charged in the indictment.“); Miller, 910 F.2d at 1327 (majority opinion); United States v. Smith, 887 F.2d 104, 108 (6th Cir. 1989); see also United States v. Sanchez, 527 Fed. Appx. 488, 492 (6th Cir. 2013) (“Circuit precedent is clear: the use of a firearm is relevant conduct that can trigger § 2K2.1(c)(1)‘s cross reference to § 2X1.1‘s enhancement provision even if the weapon used in the related conduct is different from the weapon that formed the basis for the § 922(g) offense,” under certain circumstances.).
James argues, however, that the Supreme Court‘s recent decision in Alleyne v. United States, — U.S. —, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), calls into question the practice of sentencing defendants based on uncharged conduct. Alleyne held that “any fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury.” Alleyne, 133 S.Ct. at 2155. James correctly notes that Alleyne is not directly controlling because the Court‘s holding involved “facts that increase mandatory minimum sentences,” id. at 2163, and that the conduct at issue in his case—attempted murder—did not increase a mandatory minimum sentence. See Appellant Br. 22. There is no statutory minimum sentence for the felon-in-possession offense. The government states that the rule of Alleyne does not apply to James because the use of the attempted-murder guideline in sentencing for the felon-in-possession offense was only an “enhancement” based on “a guideline provision, not a statutory provision.” Appellee Br. 18. Sentencing James based on a finding of attempted murder rather than simply for the convicted offense, however, had the effect of more than doubling
It is true that Alleyne contains expansive language suggesting that the Court may be rethinking the precise contours of the Apprendi doctrine. “When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury. It is no answer to say that the defendant could have received the same sentence with or without that fact.” Alleyne, 133 S.Ct. at 2162 (emphasis added). In Alleyne, the defendant was convicted of using a firearm in relation to a crime of violence under
Somewhat similar logic applies here. Sentencing James to 80 months of imprisonment is presumably permissible because the authorized sentence is up to 120 months.
The advisory nature of the guidelines system may also not be a dispositive answer to James‘s claim. In another sentencing-law case last term, the Court recognized that the guidelines, in practice, at least drive, if not determine, a defendant‘s sentence. See Peugh v. United States, — U.S. —, 133 S.Ct. 2072, 2083, 186 L.Ed.2d 84 (2013). In Peugh, the Court held that sentencing a defendant under a version of the Manual promulgated after commission of the criminal act violates the Ex Post Facto Clause. Id. at 2078. In doing so, the Court acknowledged that in usual cases, a sentencing court will impose a within-guidelines sentence. Id. at 2083. “That a district court may ultimately sentence a given defendant outside the Guidelines range does not deprive the Guidelines of force as the framework for sentencing.” Ibid. The Court recognized the reality that a sentence outside the guideline range is
Additionally, Justice Thomas, writing for four Justices in Part III-A of Alleyne, went even further, stating that a “well-established,” early American practice was “including in the indictment, and submitting to the jury, every fact that was the basis for imposing or increasing punishment.” Alleyne, 133 S.Ct. at 2159 (plurality opinion as to Part III-A) (emphasis added). Justice Thomas wrote: the “defendant‘s ability to predict with certainty the judgment from the face of the felony indictment flowed from the invariable linkage of punishment with crime.” Id. at 2160 (quoting Apprendi v. New Jersey, 530 U.S. 466, 478, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)).
Although Justice Thomas‘s opinion carries some force here, we decline to extend Alleyne beyond its four corners for three reasons. First and foremost—we believe that if the Court wished in Alleyne to create a sea change in sentencing practice, it would have said so expressly. Second, the Alleyne Court observed that its ruling “does not mean that any fact that influences judicial discretion must be found by a jury.” Id. at 2163. Arguably, following the guidelines by referring to an uncharged offense does more than “influence” judicial discretion, but the point remains. Third, four post-Alleyne unanimous panels of this court have taken for granted that the rule of Alleyne applies only to mandatory minimum sentences. See Rogers v. United States, 561 Fed. Appx. 440, 443 (6th Cir. 2014) (unpublished) (district court did not violate defendant‘s Sixth Amendment jury-trial right when it applied a cross reference to the attempted-murder guideline because Alleyne does not “require that every fact giving rise to [a] cross-reference in [a] guidelines calculation be submitted to a jury and found beyond a reasonable doubt.“); United States v. Harris, 552 Fed. Appx. 432, 440 n. 4 (6th Cir. 2014) (unpublished) (“The judicial fact-finding here did not affect the statutorily authorized penalties, so Alleyne is not implicated.“); United States v. Cook, 550 Fed. Appx. 265, 275 (6th Cir. 2014) (unpublished) (Alleyne does not require reversal of sentence because “[n]o statutory mandatory minimum applied to his convictions for being a felon in possession of a firearm.“); United States v. Johnson, 732 F.3d 577, 584 (2013) (”Alleyne did not extend Apprendi to facts that do not increase the prescribed statutory penalties.“). Although it may be troubling to some that the Guidelines Manual instructs sentencing courts to substitute the cross-referenced offense for the conduct actually charged, effectively resulting in an enhanced sentence for a completely different offense, having closely considered Alleyne‘s language, we now affirm our pre-Alleyne holdings that a sentencing court may determine an offense level by cross-referencing a guideline for an uncharged offense. Until the Supreme Court directly revisits this issue, the best practice is to remain within the four corners of Alleyne. Accordingly, ap-
B. Sufficiency of the Evidence
James also argues that there was insufficient evidence for the district court to find that he possessed the requisite mens rea to commit attempted murder. James correctly states that at common law, “although a murder may be committed without an intent to kill, an attempt to commit murder requires a specific intent to kill.” Braxton v. United States, 500 U.S. 344, 351 n. *, 111 S.Ct. 1854, 114 L.Ed.2d 385 (1991); accord Merritt v. Commonwealth, 164 Va. 653, 180 S.E. 395, 399 (1935) (“To commit murder, one need not intend to take life; but to be guilty of an attempt to murder, he must so intend. It is not sufficient that his act, had it proved fatal, would have been murder.“). For the district court to employ the attempted-murder cross reference, it needed to find by a preponderance of the evidence that James intended to kill Walls. See United States v. Gates, 461 F.3d 703, 708 (6th Cir. 2006).
At the sentencing hearing, James accepted the facts in the presentence report but objected to the government‘s determination that the facts constituted attempted murder. James admitted that, consistent with the presentence report, he shot “in the air” but that the bullet hit a parked car. The government characterized the facts differently and argued that James shot the gun with the intent to kill Walls. The district court did not simply accept the government‘s characterization. It stated: “If there‘s an objection . . . with respect to the facts, whether or not the facts amount to . . . an attempt[ed] murder, I would have to receive some proof on that to make the final decision.” The district court also stated that James‘s objection “shift[ed] the burden of proof really on the government” and that the government was “going to have to prove” attempted murder.
At James‘s sentencing, the government called three witnesses, and James cross-examined each. The government also introduced the surveillance video into the record. At the close of evidence, the district court afforded both the government and James an opportunity to argue their positions in light of the evidence presented. James argued that the evidence did not prove a specific intent to kill. The district court detailed the evidence in the record and concluded that James possessed the intent to kill. It stated:
The video was just compelling. It is just obvious. . . . [I]t‘s obvious on the video what [James] does. It‘s compelling. He is on the side of the car away from [Walls]. He comes out of the window, and y‘all correct me if I am wrong, but this is what I saw on the video, he comes out of the window, actually looks like he sits on the door with his arm over the top of the roof of the car aiming across towards where [Walls] is.
Additionally, the district court addressed and rejected James‘s characterization that he shot “in the air.” It stated:
Shots fired, not in the air—yes, any shot goes in the air, so I guess—technically, I guess it was shot in the air, but . . . when you shoot in the air, you are shooting upward. And his arm is laying on the roof of the car in the direction of where the ex-boyfriend was, and [a shot is] fired, and it hits an SUV. It doesn‘t hit the roof of a building. It doesn‘t hit the upstairs window of a building or a tree, it hits a vehicle parked on the driver‘s side.
James argues that the district court‘s language suggests that it found that he acted recklessly toward others and not specifically toward Walls, which would be insufficient to support attempted murder.
I also make note that when that car came around there and shots fired, all the other people that were out there ran for their lives. I don‘t know if y‘all noticed that. The two guys that were on the side of the building, they ran for their lives because they knew what was happening, and so just based on the proof that was presented and that video, I‘m sorry, at least there was an assault with an intent to commit a second degree murder.
Ibid. James quotes this statement out of context. In context, it is evident that the district court described the reaction of bystanders chiefly as evidence that James fired the gun parallel to the ground, such that the shot could have hit Walls, and not, as James argued, “into the air.” James also notes that the presentence report lists “society” as the victim of his offense. But there is no evidence that the district court placed any weight on this. The district court‘s finding that James had the specific intent to kill Walls was not clear error. The district court‘s review of the evidence was thorough and nuanced.
C. Substantive Reasonableness
James argues that his 80-month sentence overemphasized the seriousness of the offense because the application of the attempted-murder cross reference, along with the district court‘s emphasis on the seriousness of the offense in its
We review the substantive reasonableness of a defendant‘s sentence “under a deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).
As noted, the district court determined that James‘s guideline range was 70-87 months. The district court stated that it must consider the sentencing goals provided in
Because James‘s sentence was within the guideline range, we apply a “presumption of reasonableness.” United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en banc); accord Gall, 552 U.S. at 51; Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). James has not overcome this presumption. “The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” Gall, 552 U.S. at 51.
James argues the sentence is unreasonable because the sentence double counts his conduct, i.e., shooting at Walls. But no impermissible double counting occurred. The district court did not depart upward from the sentencing range, and the sentence imposed was near the mid-point of the guideline range. James also faults the district court for failing to compare his sentence to those of other defendants convicted of the same crime under similar circumstances. There is no requirement that a sentencing court conduct a side-by-side comparison on the record. “[T]he district judge should . . . consider all of the
IV
The district court properly applied the attempted-murder cross reference because “relevant conduct,” under § 1B1.3(a), need not facilitate the underlying offense. It need only “occu[r] during the commission of the offense of conviction.” § 1B1.3(a). Additionally, Alleyne does not alter our long-established holding that a defendant may be sentenced for uncharged conduct. We, therefore, AFFIRM the district court‘s sentence.
UNITED STATES of America, Plaintiff-Appellee, v. Terrence BELL, Defendant-Appellant.
No. 13-6339.
United States Court of Appeals, Sixth Circuit.
Aug. 5, 2014.