United States v. Lorenzo J. Baylor

America, Appellee, UNITED STATES BAYLOR, Appellant.

Lorenzo J. 95-3035, 95-3039.

Nos. Appeals, Court of

District of Columbia Circuit.

Argued Sept. 4, 1996.

Decided Oct.

increasing his base offense level to reflect his transactions, managerial drug by role in the failing departure to consider a downward Report based on a Commission by policy, on cocaine and includ- purposes conduct for of calcu- relevant lating drug his offense level base amounts acquitted. in of which involved counts he was DC, ar- Lempres, Washington, T. Michael but, judgments affirm the We conviction appellants and filed the gued the causes for merger view of the of the distribution counts appellant J. Smith. Lauren briefs for Walter “schoolyard drug posses- with the statute” court, McLean, Kahn, appointed by the S. counts, sion we remand the case to the dis- VA, appellant Lorenzo J. was on the brief for trict court. Baylor. Danello, H. Assistant United Elizabeth I. appel- Attorney, argued the cause for States government’s evidence showed that in Holder, Jr., lee, Erie H. with whom Smith, Baylor appellants and indict Fisher, Roy Attorney, R. W. John Coates, co-conspirator Douglas worked ed McLeese, III, McKinney, Linda Otani together complete a series of transactions Attorneys, were on Assistant United States involving the distribution of cocaine base. the brief. light Viewed most favorable States, TATEL, WALD, government, Glasser v. United Before: ROGERS 60, 80, 457, 469-70, Judges. U.S. 62 S.Ct. 86 L.Ed. Circuit (1942), Bay the evidence established by Opinion filed Circuit for the Court Coates, supplied lor who then Judge ROGERS. provided them to for retail sale. On Smith April Coates introduced Smith to an by Opinion concurring specially filed police apartment undercover officer an Judge WALD. Circuit N.W., Street, house located at 704 3rd ROGERS, Georgetown from Law Cen Judge: was 534 feet Circuit officer, Smith, and another man ter. their convic appeals In these from apartment a small located went by conspiracy to distribute tions building, level of the where Smith basement base, § cocaine U.S.C. distribution containing large quan produced gym bag base, § cocaine id. and distribution of tity rock substance. then of white Smith 1,000 school, in within feet of a cocaine base the offi grams sold 10.21 of cocaine base to 860(a), appellants violation of id. Lorenzo cer for $500. sep Baylor and Walter Smith raise J. Jamal Following joint challenges. contends two other sales arate and Smith officer, and after to the undercover the district court abused its discretion Coates just supplier ordered a key govern reporting that his had curtailing cross-examination of a crack, $1,200 subject an prior price convic increase to for ounce ment witness on the man” sufficiency introduced the officer to “his tion. contests the of Coates Smith also Baylor May the officer on 1994. After the evidence to sustain his conviction 1,000 money, Baylor gave Coates and within feet of Coates distribution one challenge barbershop located appellants the suffi entered a school.1 Both Street, N.W. When ciency support their con thousand block U of the evidence bag Baylor returned he handed the officer conspiracy. further con Coates victions containing grams of cocaine base. clearly 21.431 tends that the district court erred , — cum, (D.C.Cir.1995), challenge Appellants 66 F.3d 362 have waived denied - -- statute,” -, constitutionality “schoolyard L.Ed.2d 860(a), to raise this U.S.C. because failed the district court. United.States v. Bau- issue in witnesses, quality presenting Baylor Coates stated of the cocaine other testified purchased by to that agreement identical officer that he had never had prior drugs, the three occasions. The 19th Coates to sell denied that Smith sale occurred within 302 feet Garnett Pat- bought he ever from Fol- cocaine Coates. High rebuttal, terson Junior School. lowing government’s jury the the guilty April found Smith dis- trial, pled guilty Prior to Coates to the count, Baylor guilty tribution grams distribution of 50 or more of cocaine count, distribution and both defendants agreed testify govern- base and for the guilty conspiracy. Baylor was relationship ment. Coates described his relating on counts to the distributions on Baylor having and Smith as commenced 4,13, 20,1994. April and Baylor began March 1993 when to “front” eighth between half an ounce and an aof II.

kilogram of cocaine base to or Coates two three times a week. Coates either sold the Appellant Smith contends that the sellers, drugs supplied himself or other and restricting district court erred his cross- paid Baylor only drugs once the were sold. subject examination of Coates on the Baylor determined where the two men would prior Coates’ conviction under the Bail Re meet, sold, price the of the cocaine examination, form Act. On direct Coates compensated whether Coates would be prior admitted his convictions for distri during cash or cocaine. It was this same bution, cocaine, conspiracy to distribute period approached that Smith first Coates to violation of the Bail Reform Act. On cross- procure drugs ask whether he could for him. examination, Coates stated that the Bail Re In sup- March and Coates twice form Act conviction had resulted not from his plied Smith with one to two ounces of cocaine perform failure to under the conditions of his provided by Bay- base that had been to him bail, but because he missed court date. paid by lor. Monies Smith to Coates were why When asked defense counsel he had who, turn, Baylor paid remitted to Coates it, explained missed Coates that he had been money commission the form of either or incarcerated at the time. He then admitted cocaine. Smith informed Coates that he was having been sentenced for the violation. selling the at a homeless shelter locat- point, prosecutor At objected this Streets, N.W., ed at 2nd Dand and later at inquiry beyond proper went well im N.W., Street, 704 3rd and that he had two or peachment. argued Smith’s counsel that he persons working three other Al- for him. inquire was entitled to whether Coates had though during the two lost contact the sum- violated the conditions of his release in order mer of approached Smith Coates to test his sustaining trustworthiness. In year October of that if to ask Coates could objection, the district court that “[Y]ou ruled still “work the him.” deals for From Novem- go cannot into the details of the conviction.” through ber 1993 March Coates sold 609(a), Under Federal Rule of Evidence eighth kilogram Smith an of cocaine base prior when evidence of a conviction is admit- separate delivery on six occasions. Each purposes ted impeachment, cross-ex- provided made with cocaine that had been usually amination is limited to the essential by Baylor. Coates facts surrounding rather than the details of trial, government presented At expert Castro, the conviction. United v. States concerning evidence typical features (7th Cir.1986). F.2d Courts have drug conspiracies in the District of Columbia. however, recognized, that under certain cir- According expert, drug distribution concerning cumstances details a conviction frequently chains are so that structured elicited, may be and the district court’s de- wholesalers and retailers have no direct con- termination as to the nature and extent of tact with one another and instead work en- inquiry is reviewed for abuse of discre- tirely through intermediaries. Swanson, e.g., tion. See United States defense, (8th Cir.1993). In appellants sought their both to F.3d appeal On impeach testimony. government Coates’ In addition to maintains that once the na- independent impeach- Act Bail Reform have measurable and date of Coates’ ture established, value, had no Smith ment the district court could reason- conviction were Citing underlying ably facts. right probe want to avoid a mini-trial on Coates’ Butler, balance, Bail Reform Act conviction. On (D.C.Cir.), may simply district court have concluded that (1991), however, enough appellants had heard acknowledges that a witness nothing gain. had more to may to more extensive cross- “open the door” event, because the was aware by attempting to minimize the examination of Coates’ other convictions and learned that for which he was convicted. conduct plea agreement his created an incentive for underlying knowing the facts Without give testimony him to be would viewed conviction, Act Bail Reform Coates’ Coates’ favorably by government the when he was might well answers on cross-examination sentenced, barring later error farther juror by interpreted have been a reasonable impeachment was harmless. See Kotteakos away attempt explain the conviction. as States, 750, 764-65, v. United testimony implied Certainly, that he Coates’ 1239, 1247-48, 90 L.Ed. 1557 thought his incarceration was a defense to Any inquiry regarding incremental the Bail Consequently, charge. Bail Reform Act the Act Reform conviction would have had little that the district court abused Smith contends value, impeachment particularly un- since the by cutting off cross-examination its discretion testimony dercover was officer’s sufficient to key government witness without allow- 4, 1994, support April the conviction for the opportunity to ensure that ing the defense an sale, testimony and his about the jury nature of the would understand the general sale corroborated Coates’ ac- and could evaluate wheth- Coates’ conviction workings conspiracy. count of the explanation was credible. er his agree government Although we with the III. testimony explain sufficed Coates’ problematic appellant More Smith’s jury nature of a Bail Reform the basic government contention that the failed to of 23-1327, violation, Act see D.C.Code April that on fer sufficient evidence show at the claim that he was incarcerated Coates’ 1,000 drugs within feet of Smith sold reasonably interpreted time could have been Specifically, he contends that the school. by suggest that Coates was un- government prove failed to the base fairly centrality of convicted. Given the Street, N.W., apartment at 704 3rd was ment testimony and the efforts made Coates’ 1,000 Georgetown less than feet from the credibility, the defense to cast doubt on his University govern Law Center.2 While might the district court well have afforded introduced evidence that the distance ment leeway in some additional order to counsel “budding between the Law Center clarify of the conviction. the circumstances building apartment line” of the at 704 3rd Wolf, v. See United States feet, present a was 534 it did not Street (10th Cir.1977). The usual reason for reflecting measurement the location respect scope caution with to the of cross- drug 4th apartment actual which the concerning prior examination a witness’ con- sale occurred. viction, namely, protect the need to from statute,” “schoolyard prejudice U.S.C. undue a defendant who takes the Under 860(a), stand, where, here, provides for enhancements is not at issue offenses, government must on trial. v. witness is not See United States (3rd Mitchell, Cir.1970); prove possession that the occurred F.2d 609(a) 1,000 (referencing Federal Rule within feet of school. Fed.R.Evid. (D.C.Cir. 403). Johnson, Still, indica- 46 F.3d 1166 of Evidence absent some that, 1995), irrespective of tion that additional cross-examination would the court stated court, express opinion government and we no on the 2. The does not contend that Smith district objection. preserve by raising failed to this issue it in the nature of a sufficient routes, straight travel pedestrian apartment the Law Center from the build- actual can ing. suffice to meet line measurement Id. at requirements of the statute. 1169-70. government maintains that the evi- in Johnson reversed the convic- The court dence was sufficient to enable reasonable however, tion, pedestrian because the route apartment building to conclude that the up of 994 feet went measurement occupy does not the entire block bounded steps of the house and did not include the 3rd, G, 4th, Streets, Thus, and H N.W. point to the actual within where the distance contends, impossible it would have been drug possession had occurred. Id. at 1170. apartment the basement to have been as The court observed distant from the Law Center as the far proof simply by could not meet its burden of depicted northwest corner the block asserting straight that a line distance would Further, map. schematic even if the build- necessarily considerably have been shorter occupy did the entire block and the pedestrian than the route that formed the apartment opposite were at the corner of the of the measurement offered in evi- basis point from block where the measurement dence. Id. In contrast to taken, map demonstrates that the (9th Cir.1989) Watson, 887 F.2d 980 where length of the G block Street would not have map evidence included a that enabled the 1,000 pushed the total measurement over jury approximate to the distance omitted government points feet. The out that be- measurement, government’s from the id. at cause the distance between the Law Center jury the court noted that the Johnson and apartment the eastern wall of the budd- upon had no such evidence which it could Street, ing encompassing the width of 3rd — Johnson, a similar have based conclusion. the block between 3rd and Street the free- F.3d at 1170. itself, way, freeway the the block between ease, Consequently, in the instant the Street, freeway the and 2nd and 2nd question is whether a measurement of 534 feet, equals only 534 it would be Street — apartment feet from the Law Center-to the unreasonable to conclude that the width of building combined with the other evidence apartment building the itself and the distance concerning the location of the relevant build- approach down to the basement could ings govern- and streets suffices to meet the feet. proof. government ment’s burden of A evi- Although map the was not introduced that, explained dence technician arrive government purposes illustrating the the 534-foot measurement between the Law 1,000 foot measurement and was never apartment building, and the Center he mea- scale, having established as been drawn to “building sured from the line” at 704 3rd accurately was evidence before the as freeway sepa- Street the wall depicting apartment the location of the budd- Center,

rates 3rd Street from the Law and ing at 704 surrounding 3rd Street and the Avenue, then went north to Massachusetts diagram area. The budding showed that the freeway, which crosses the and then mea- was located at the corner of 3rd and G sured across 2nd Street to the Law Center streets. We conclude that when considered library. No direct evidence was introduced combination, measurement, the 534-foot concerning the location of the basement map, photographs per- were sufficient to apartment where the transaction took juror mit a reasonable place, conclude that the apartment or the distance between the “budding distance from the line” to the apartment base- exterior wall of the build- apartment ment did not where the exceed 466 feet. measurement was taken. The intuitive, Spatial relationships hardly government did are introduce into evidence a photographs map designed can distort spatial schematic to show the distances. Never- theless, relationship given apartment building regarding between the the evidence Center, and the Law photo- represented by as well as three vast area the 534-foot mea- surement, graphs depicted the front of 704 3rd could have concluded that Street, N.W., apartment physical configuration the view of the that would have Center, building from required the Law and the view been for the unmeasured area be- “building Baylor’s attempts tween the line” and the basement to discredit Coates’ testi- apartment or more funda- mony, to be feet was he did not introduce evidence that mentally photographs inconsistent with the description contradicted Coates’ basic building adjacent apartment dealings Baylor. between himself and As the map. well as the streets schematic government points brief, out in its that the speculation apart- that the basement Smith’s jury might unwilling rely have been exclu- might ment have been several floors below sively testimony on Baylor Coates’ to convict ground is contradicted the undercover of transactions of which specifical- he was not testimony apartment officer’s that the was on ly jury reject- aware does not mean that the added). (emphasis “the lower level” con- testimony entirely. ed Coates’ trast to both Johnson and United States Although appellant argues Smith that the (D.C.Cir.1995), Applewhite, 72 F.3d 140 nothing buyer- evidence showed more than a — -, relationship seller between himself and (1996), relies, L.Ed.2d 962 which' Smith Coates, testimony there that Coates in government difficulty where the faced the troduced the undercover officer to Smith and showing precluded finding that its evidence that Smith advised the officer that he could leg that an unmeasured could have been through be contacted Coates. The evidence long, government than feet more here the also originally approached showed that Smith spatial leeway, had far more and needed procure Coates to determine if he would show, through photographs map, him, quantities wholesale thus missing distance was 466 feet or recognizing that Coates would act as a mid Obviously, less. should not supplier dleman between Smith and a who by offering undermine its own case incom- Baylor. would turn out to be That Smith plete measurements. Under the circum- Baylor never met is irrelevant. United stances, however, with substantial room to Jenkins, 1,000 limit, spare reaching before foot (D.C.Cir.1991); Tarantino, United States v. measurement, government’s when combined 1384, (D.C.Cir.), denied, 846 F.2d 1392 cert. map photographs with the and the 867, 174, 488 U.S. 109 S.Ct. 102 L.Ed.2d 143 buildings freeway, was sufficient to (1988); Childress, see also United v. States show that 4 sale occurred within 693, (D.C.Cir.1995), 58 F.3d 709-10 cert. de 1,000 feet school. —nied, -, 825, 116 U.S. 133 S.Ct. (1996). L.Ed.2d 768 The size of the orders IY. provided that Coates was fill able to an addi appellant’s Neither contention that jury upon tional basis which a could conclude there support was insufficient evidence to his tapped that Smith knew he had into an es conspiracy persuasive. conviction for See drug operation. tablished From this evi Glasser, 80, 315 U.S. at 62 at 469-70. S.Ct. dence reasonable could find that Smith agreement The evidence an showed between working together in Coates were persons two or more to distribute cocaine ongoing, cooperative purchaser-middleman appellants knowing partici and that were relationship dependent where were pants agreement. in the See United States upon profits one another for re Thorne, 1504, (D.C.Cir.), v. 997 F.2d 1512 Sobamowo, spectively. United v. See denied, 999, 568, cert. 510 U.S. 114 126 S.Ct. 90, (D.C.Cir.1989), denied, 892 F.2d 94 cert. (1993); L.Ed.2d 467 v. United States Lam 825, 78, 498 111 112 U.S. S.Ct. L.Ed.2d 51 (D.C.Cir.1991), 298, Kwong-Wah, 924 F.2d 303 (1990); Medina, United States v. 944 F.2d denied, 901, rt. 506 U.S. 113 S.Ct. ce (2d 60, denied, Cir.1991), 65-66 cert. 503 U.S. (1992). 287, 121 213 the face of L.Ed.2d 949, (1992). 1508, 112 S.Ct. 117 L.Ed.2d 646 overwhelming Baylor’s complicity evidence of transactions, in drug acquittal a series of his charges aiding abetting on transac Y. place April

tions in that took 1993 is irrele Morris, Finally, Baylor’s vant. See United States 836 F.2d chal 1371, (D.C.Cir.1988). Notwithstanding challenge 1373 lenges fail. His to the district

548 (D.C.Cir.), denied, 1030, 510 114

court’s increase of his base level two cert. U.S. 650, managerial S.Ct. See also points to reflect his role under (2d Aiello, 621, States v. 771 F.2d 634 United the United States Guidelines Fernandez, Cir.1985); (“U.S.S.G.”) 3B1.1(c) (1994) United States v. 916 is meritless. (3d 125, Cir.1990), F.2d 128-29 on The district court had sufficient evidence 111 114 490 S.Ct. L.Ed.2d Baylor which to conclude that exercised con recently, Rutledge Most v. United organized trol over the activities of at — States, -, U.S. 116 S.Ct. 134 person one other involved in distribut least (1996), L.Ed.2d 419 Court clari- Hazelett, drugs. See United States v. States, Ball v. 105 fied U.S. (8th Cir.1996). Relying 80 F.3d (1985), S.Ct. 84 L.Ed.2d concerning Baylor’s upon the evidence role that, the Court had stated when a defendant transaction and Coates’ guilty greater is found of both lesser and testimony Baylor’s decision-making about au offenses, judg- the district court should enter thority, we find no clear error. See United only ment on one of the counts. Id. at (8th Sutera, States v. 933 F.2d Cir. Rutledge at 1673-74. The Court 1991). rejected multiple the use of convictions to Baylor Nor has shown that a remand is provide up” a “back conviction in order to warranted to enable the district court successfully ensure that a defendant who departure consider a downward under challenges greater escape offense does not U.S.S.G. 5K2.0. His reliance the Sen- — at -, punishment. S.Ct. tencing Special Report Commission’s of Feb- greater a conviction for “[W]hen ruary criticizing present 100:1 ratio grounds offense is reversed on that affect weighing pow- cocaine base and cocaine offense,” greater the Court ex unavailing light der is plained, appellate “may court direct the Anderson, (D.C.Cir.1996). 82 F.3d 436 Al- entry judgment for a lesser included of though, opinion reasons set forth at -, Thus, fense.” Id. at 1250. S.Ct. Wald, Judge specially, concurring infra, Bay- the Court indicated that the district court challenge lor’s to the district court’s treat- should instruct “not to return a ment as relevant conduct of amounts verdict on a lesser included offense once it involved the counts for which he was ac guilty greater has found the defendant quitted force, persuasive is not without Unit offense.” Id. at - n. at 1250 Boney, ed States v. 635-36 n. 16. (D.C.Cir.1992), controlling in is this circuit. While the seeks remand judgments § for vacation of the on the 841 VI. counts, appellants resentencing contend that Accordingly, judgments we affirm the light sentencing range is warranted of the however, parties agree, of conviction. All available to the district court under the Sen- April May that the 4 convictions for the tencing Guidelines. Because the district counts, 841, § 19 distribution 21 U.S.C. court made sufficient record of its inten- merge with the convictions under trial, indicating tions at that its awareness of statute,” 860(a). “schoolyard § 21 U.S.C. merger issue and its concern about the States, Blockburger See v. United government’s duplicative charging practices 299, 304, 76 L.Ed. 306 impose only would cause it to concurrent (1932); Whren, v. 53 F.3d if appellants sentences were convicted on — (D.C.Cir.1995), U.S. -, aff'd, 376 116 counts, greater both the and lesser a remand S.Ct. 135 L.Ed.2d 89 At the resentencing appear unnecessary. for would appellants sentenced, time were Lewis, courts See United States 482 F.2d 647 practice this circuit imposing (D.C.Cir.1973); Wimbush, followed the United States v. sentences on all counts of which a (D.C.Cir.1973); defendant 475 F.2d 348 see also convicted, leaving vacation of lesser McKnight, United States v. 17 F.3d (8th Cir.1994) completion appeal. Hansen, JJ., count until (Magill See —— Dale, e.g., U.S. -, concurring), United States v. 991 F.2d 275, 130 something Given the transactions. There is fundamen- L.Ed.2d tally wrong with such a result. precedent point on of clear circuit absence Sentencing Guide the enactment since “law,” aware, I Guideline am well runs Fennell, lines, F.3d overwhelmingly against Baylor’s cf. claim that a (D.C.Cir.1996) curiam), (per we 510-11 sentencing court should not use the core that the district court remand the cases so underlying acquittal conduct to increase appellants’ judgment of con can vacate each an offender’s base offense level for the counts, without viction for the distribution of which crimes he was convicted. This cir right gone along resen- cuit prejudice appellants’ seek has with most other circuits ruling guidelines and the law tencing light of vacation of one their use, authorizing permit their creation such convictions. practice and that this is constitutional. See Boney, United States v. 977 F.2d 635-36 WALD, Judge, concurring Circuit (D.C.Cir.1992) (citing cases from all circuits specially: Ninth). except Only the Ninth Circuit Baylor only Although jury convicted on contrary, claiming has held to the “[w]e charges conspiracy and the two distri- pervert system justice would our if we charges based on the 19 transac- bution punishment allowed defendant to suffer court, tion, following sentencing the man- charge a criminal for which he or she was acquitted.” Brady, date of United States Guidelines United States v. (9th Cir.1991). lB1.3(a)(2),1 Baylor’s partic- § F.2d ruled of which the ipation April in the transactions by But this consensual surface is eroded him jury acquitted had been shown growing body of resistance to what commen- evidence, preponderance of the and accord- recognize tators scholars as a blatant ingly adjusted Baylor’s offense level under injustice. Despite unanimity the near 2Dl.l(c)(2) quantity § reflect many holdings, judges circuit individual have in these transactions as well. As a involved expressed in concurrences and dissents the result, Baylor’s base offense level and his concerns, strongest bordering outrage, on exactly ultimate sentence were the same as compatibility practice about the of such a him principles underlying sys- would have been had the found with the basic our him, acquitting justice.2 guilty, instead of on the tem of criminal lB1.3(a)(2) that, provides charges defendant, in deter- has 1. U.S.S.G. level, mining charges [‘pricing’ an offender’s base offense a sen- these at the same tencing judge must consider: severity level as convicted conduct for sentenc just solely respect ing purposes] wrong."); United States v. to offenses of character 1.2(d) (2nd Cir.1992) require grouping Concepcion, for which 3D would 395-96 counts, multiple (Newman, J., all acts dissenting and omissions from the denial foreseeably banc) ("In the offender or re- [committed request rehearing way, some sulting jointly from a undertaken ac- criminal just system of the law must be modified. A tivity] part that were of the sáme course of distinguish criminal cannot fail to plan conduct or common scheme or as the allegation resulting between an of conduct in a conviction[J offense of resulting allegation conviction and an of conduct 3D1.2(d) requires grouping U.S.S.G. of multi- acquittal.”); Boney, in an 977 F.2d at 637-47 ple counts: (D.C.Cir. 1992) J., (Randolph, dissenting part in largely When the offense level is determined concurring part) (“My analysis, my loss, the basis of the total amount of harm or colleagues' uneasily ... somewhat the rests involved, quantity of a substance or some ‘special weight’ Court has accorded harm, aggregate other measure of or if the Jeopardy acquittals dence.”); jurispru in its Double ongoing offense behavior is or continuous in Galloway, United States v. 976 F.2d guideline nature and the offense is written to 414, Cir.1992) J., (8th (Bright, dissenting) 436-44 cover such behavior. ("If the former Soviet Union or a third world See, Frias, 391, country permitted practice punishing [the had of e.g., United States v. 39 F.3d 2. (2d Cir.1994) (Oakes, J., people subject that had not been the concurring) for conduct 392-94 (“This rights jurisprudence trial] of indictment or human observers is of reminiscent Alice countries.”); might say, Queen would condemn those Wonderland. As of Hearts 654, (9th Cir.1991) first, ’’); ‘Acquittal Restrepo, 946 F.2d 664-79 sentence afterwards.’ United J., Hunter, 895, (Norris, (4th dissenting) (arguing ‘prepon that the States v. 19 F.3d 897-98 Cir. J., 1994) (Hall, (”[A]s counting concurring) regards derance of the evidence’ standard for 550 fully

Although recognize Boney acquitted I that re- plausibly has been has been at- issue, my quires affirmance on this mind fronts, along many jurisprudential tacked in- acquitted the use of conduct an identical cluding jeopardy,4 double failure to honor the computing fashion with convicted conduct in trial,5 right satisfy to a failure to jagged sentence such a leaves offender’s requirement grand jury “notice” of a indict- complexion on our constitutional that scar ment,6 process.7 explanation and due The periodically presence highlighted its must be object they offered to defendants who hopes and reevaluated that someone being punished they are of crimes which attention, eventually pay through will either invariably have not been convicted is grant of certiorari resolve the circuit they “misperceive[ the distinction ] between a split, guidelines by or a revision of the enhancement,” sentence and a sentence Commission, Sentencing legislation or to bar by adding the full punish- measure of result; Judge such a in Chief Newman’s specified guidelines ment in the for crimes of words “the law must be modified.”3 Time they convicted, which are not the court is experience increasingly show us that the assumptions underlying uphold- merely the decisions “enhancing” penalty for the crime ing the use conduct to enhance convicted, imposing of which are not sentencing are not sound. liability separate Boney, for a crime. 977 (quoting F.2d at 636 United States Moccio practice sentencing The defendants on (1st la, 13, Cir.1989)).8 the basis of crimes for which the defendant 891 F.2d 17 The underlying acquitted charges Sentencing conduct ing in sentenc and the Federal Sentenc Real-Offense ("Circuit rejected) Guidelines, (1993); should be has followed 78 Minn. L.Rev. 403 Eliza without, cases, vestige Lear, Irrelevant?, circuit in some even beth T. Is Conviction 40 UCLA independent analysis. ever, signs, ... There are how (1993); Freed, L.Rev. J. Daniel Federal Sen finally cracking, signs that the dam is of an tencing Unacceptable in the Wake Guidelines: emerging truly profound impli awareness Sentencers, Limits on the Discretion Yale changes cations of the the Guidelines have (1992); Tonry, Salvaging L.J. 1681 Michael wrought.” (citing Brady)); United States v. Kiku Sentencing Easy Steps, Guidelines Seven 4 Fed. mura, 1084, (3d Cir.1990) 918 F.2d 1100-01 Rep. (1992); 356-57 Gerald W. (“This [twelve-fold increase in the sentence] Heaney, Reality Sentencing: Guidelines No perhaps example imaginable the most dramatic Disparity, End to 208-20 Am.Crim. L.Rev sentencing hearing that functions as 'a tail wags dog of the substantive offense. (Quoting 88, Pennsylvania, McMillan v. J., (Newman, Concepcion, 3. 983 F.2d at 396 dis- (1986)). 106 S.Ct. 91 L.Ed.2d 67 senting petition from the denial of for rehear- context, believe, In this extreme we a court can ing). reflexively apply procedures not the truncated perfectly adequate that are mundane, for all of the more See, e.g., Rodriguez-Gonzalez, 4. United States v. determinations.”); familiar (2d Cir.), 181-82 Jones, F.Supp. United States v. (N.D.Ohio 1994) ("The right by juiy ato trial sentencing judge effectively means little if a can jury's acquittal charge See, Jones, veto the on one and sen- e.g., supra 5. note 2. though tence the defendant as he had con- been charge." (citing Brady)); victed of that Lear, supra 6. See note at 1229-33. Cordoba-Hincapie, F.Supp. States v. (E.D.N.Y.1993) ("Can guarantees aof See, e.g., Restrepo, supra 7. note at 664-79 predicates trial to determine the substantive (Norris, J., dissenting). criminality by characterizing be shortcircuited great significance deciding critical element of separate concurring opinion. Judge In his Ran- punishment judge as one for the to determine in dolph recognized conceptual nicety that “this fixing predetermined sentence—a sentence under might person guidelines, be lost on a who ... imposed fixed breathes a not one under discre- sigh tionary regime? guilty relief Congress when the not verdict is ... could an- not have dangerous realizing nounced intended such a bizarre and without that his term of im- result if, sentences”). adopted guideline prisonment may when it nevertheless be ‘increased’ sentencing, responsible the court finds parallel him body condemning A of work sentenc- ing Jeopardy the same misconduct. That the acquitted growing Double based on conduct has been See, protects reprosecution Clause community. e.g., him from on the in the academic Reitz, Kevin R. count, acquitted acquittal Sentencing or that Facts: Travesties his means that of Real-Of- (1993); Sentencing, potential 45 L.Rev 523. his maximum sentence will be deter- Stan fense Yellen, Illusion, Illogic, Injustice: solely David and mined on the basis of the count on which

551 sentence, all, hand, sentencing, fall line after still must on the other was moti- “enhanced” statutory range set out for the by within the Congress’ determination vated that inde- Boney, 977 F.2d at crime of conviction. See sentencing parole terminate discretion 636. in disparities, resulted unwarranted sentence by replaced rigid and must be more formulas judges recognized

Some of our own have allowing little or no part discretion on the justification pass could not that this the test judge.11 escape or common from of fairness even sense Thus the valves attached ordinary vantage point of an citizen.9 The long originally prescribed by sentences “law,” however, has retreated from that stan- shut, statute have been slammed and statuto- dard into its own black hole abstractions. ry designed maxima that were to cover the The fact remains that when the conduct egregious most conceivable manifestations of serves as the basis for a sentence crimes, particular and thus to far exceed the by crim- “enhancement” is fact treated appropriate case,12 average sentence in the sentencing guidelines inal and the as statutes cannot be relied on to cabin within reason- crime, charged separately a discrete in the penalties able limits the cumulative for con- indictment, subjected separate to a de- acquitted charges. victed and guilt jury, termination of or innocence Some have felt themselves treating subsequently sentencing at the courts con- stage just as another “factor” to be consid- strained Court’s decision ¶. “enhancing” ered the sentence Pennsylvania13 McMillan respect to artificiality of conviction crime introduces “punishment/enhaneement” fiction that un- process into the that violates time honored counting acquit- derlies the authorization for principles designed protect constitutional lB1.3(a)(2).14 ted conduct in A close read- criminal defendants. opinion, Specht of that and of the refers, Patterson15 decision to which it how- The fact that the ultimate sentence based ever, suggests that even that on both convicted and conduct falls fiction has statutory below the maximum for the crime portion guide- boundaries which this little, anything, if of conviction does coun- lines has crossed over. counting unfairness ac-

teract the basic Specht The statute reviewed in authorized quitted statutory conduct. The maxima for sentencing per court to determine felonies, many high run which can as 30 or son convicted of enumerated sex offenses years, originally were set an era of public, constituted a threat or was an parole; indeterminate ill, mentally habitual offender and and on this prevailing ideology punishment was reha- basis increase the sentence from the term bilitation, system designed specified in crime of to an conviction provide pris- that offenders would remain in day term one indeterminate between and life “rehabilitated,” until had been imprisonment.16 provi The statute made no meaning prisoners often would be released hearing preceding sion for notice or this de serving after as little as one-third their original concept guide- sentences.10 The termination. The Court held that the statute he was convicted is doubtless little 13. 477 comfort." U.S. J.,

Boney, (Randolph, dissenting (1986). 977 F.2d at 647 part concurring part). See, e.g., Mobley, 14. United States v. supra 9. See note 8. (3d Cir.1992). Tonry, 10. See Michael H. Real Sentenc- Offense Act, ing: The Model and Corrections L.Ed.2d 326 Criminology (1981). 72 J.Crim. & L. 3553(a)(6) (1994). 11. See 18 U.S.C. 607-08, 16. See id. at 87 S.Ct. at 1210-12. Tonry, Sentencing 12. See Michael Guidelines and Code, the Model Penal L.J. Rutgers guilt process” provided in due as it and did not relieve the was “deficient making charge leading proving guilt, a new for “the its burden of but rather be- affording the punishment” only criminal without applicable came “after a defendant has safeguards defendant the considered essen duly been convicted of the crime for which he trial.17 tial to a fair Next, punished.”24 is to be the Court ob- served that the Act enumerated felonies car- McMillan, Court ad- twenty rying maximum sentences of ten or Pennsylvania’s challenge Man- dressed years, “upp[ing] the ante” for these felonies datory Minimum Act18 based in minimum could insofar as the sentence the Due Process Clause of the Fourteenth years; not fall below five the Court conclud- guarantee trial Amendment and the gave impression ed that the statute “no provided Amendment. The Act the Sixth having permit tailored to been visible anyone that convicted of certain felonies possession finding wags a tail to be years’ must be sentenced to at least five dog of the substantive offense.”25 The Court imprisonment judge by prepon- if finds rejected petitioners’ Specht, invocation of person that “visi- derance evidence noting in Specht that the statute struck down bly possessed during a firearm” the commis- “ subjected ‘radically to a the defendant dif- subjected Individuals sion the offense.19 sentencing ferent situation’ from the usual argued to this sentence enhancement that proceeding,” merely whereas the Act raised possession actually the firearm an ele- may imposed the minimum sentence that be crime, ment of the and thus under In re Finally, the trial court.26 the Court re- beyond Winship20 proved must be a reason- jected petitioners’ warning that States doubt, and in able the alternative that due any leeway would use the Court allowed process required component that the firearm existing them to restructure crimes in such subject higher proof be to a than standard way require- process evade the due preponderance of the evidence.21 Winship, observing announced in ments claim, The Court found merit neither Pennsylvania’s legislature changed had not Pennsylvania’s holding that “chosen course any existing the definition of offense.27 defining prescribing the area of crimes and petitioners’ The Court then turned penalties” not did violate the standard articu- “subsidiary” possession claim that visible Specht.22 lated in noted that it Court subjected higher firearm should be to a stan attempted precisely had “never to define proof “preponderance dard of than i.e., [Specht], constitutional limits noted Citing to evidence.” the 1949 decision process the extent to which due forbids the York,28, quickly v. New Williams the Court proof reallocation or reduction of burdens of dispensed argument cases,” this on the basis of prof- in criminal and declined now definition, holding process that decision’s due is not light fer such of other making unnecessary violated court’s “tradition factors to reach this noted, first, practice hearing finding issue.23 The al[ ]” Court evidence and Pennsylvania presumptions any prescribed proof Act created no facts “without burden of 17. Id. at 87 S.Ct. at 1213. 23. at See id. 106 S.Ct. at 2416. (1982). 18. 42 Pa.C.S.A. 24. Id. at 106 S.Ct. at 2417. McMillan, 81-82, 19. See U.S. at 106 S.Ct. at 2413-14. 25. Id. at 106 S.Ct. at 2417.

20. 397 U.S. 90 S.Ct. 26. at See id. 106 S.Ct. at 2417-18. McMillan, 83-84, 89-90, 21. See 477 U.S. at 106 S.Ct. at 27. See id. 106 S.Ct. at 2417-18. 2414-15. 28. 337 U.S. 93 L.Ed. 1337 86, 91-93, 22. See id. at 106 S.Ct. at 2418- many reasonable doubt for defendants. Yet at an.”29 relentlessly, appear to have even mind- we arguments of addressing sets In both lessly progressed path. down the It is time petitioners, McMillan pressed turn The British novelist back. G.K. vitality only the continued affirmed Court not great two “[W]hen Chesterton once said: language that limited but also used Specht, of parties agree something, it political about is inapplicability of holding regarding the its wrong.”32 I am afraid same generally the sentence Specht to situations great can be said in this one instance about particular relates “enhancement” circuit courts. conviction is which the based. event on did not under that the Act fall Court held “only applicable

Specht bec[ame] because duly of convicted a has been

after defendant punished.” is to be which he

the crime for

McMillan, at 2417 at 477 U.S. added). Rejecting claim that

(emphasis apply, the proof of should higher a burden Choate, PEROT, Pat Ross “[s]entencing courts neces- that Court noted ’96, Inc., Appellants, Perot of an sarily the circumstances consider of- punish- selecting appropriate fense ment, consistently approved have and we COMMISSION, FEDERAL ELECTION that mandate consider- sentencing schemes and the on Presidential Commission crime, without facts related to the ation of Debates, Appellees. proved facts must suggesting that those be at doubt.” Id. beyond a reasonable HAGELIN, Tompkins, Dr. Mike Dr. John added). (emphases at Party and the Natural Law America, Appellants, States of assumption pun- apparent The Court’s conviction, relate to the crime ishment will for which defen- than to crimes rather COMMISSION, FEDERAL ELECTION acquitted, reflects common- dant been has Presidential Commission understanding about ality fundamental Debates, Appellees. judges and aca- scores fairness shared demics,30 every jurisdic- as as nonfederal well 96-5287, Nos. 96-5288. implemented that has tion in the nation Appeals, United States Court sentencing.31 guideline The Federal Guide- Circuit. District Columbia ano- perpetuating alone in their lines stand sentencing. acquittals in malous treatment Argued 1996. Oct. sum, I do not believe 4,Oct. 1996. Decided no- yet sanctioned intolerable Court has Oct. 1996. Issued can must be tion the same sentence or crime, person convicted of one levied on 96-5288 Rehearing Denied No. crimes, “related” of three 15, 1996. t. Oc counterpart convicted imposed can on his be all crimes. The result such four surely system subtly but eviscerate beyond proof

right to a trial or McMillan, 91-92, solely has on crimes for which defendant S.Ct. at based 29. convicted, of the "real offense” 2419. been in favor model, sentencing courts to consid- which allows supra 30. See note 2. acquitted crimes set- er unconvicted and even sentence). ting the (noting Tonry, supra 31. See note at 356-57 Sentencing Commission is the the Federal sentencing Cynic's Lexicon reject in the nation commission Green, The Jonathon model, whereby "charge are offense” sentences

Case Details

Case Name: United States v. Lorenzo J. Baylor

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jan 24, 1997

Citation: 97 F.3d 542

Docket Number: 95-3035, 95-3039

Court Abbreviation: D.C. Cir.