United States v. Ronald Jordan

possibly a court and as judgment form our America, of UNITED STATES orders or general

lead to consideration Plaintiff-Appellee, fu- guide precedent rules about other their Article with consistent panels ture thought stimulates III duties. debate JORDAN, Defendant-Appellant. Ronald process: what judicial nature of on the what should be by precedent mean No. 97-10255. However, in and dicta. holding considered Appeals, Court of United States in this judges view, my the debate Ninth Circuit. binding effect of their deci- case over panel a future cannot bind made here sions Nov. 2000. Argued and Submitted duty assess own have its which will July Filed 2001. holding is judicial statement whether a over the fu- debate Respectfully, dicta. is left to the a decision best import

ture necessary it to the decision is

future when

of a case.

PAEZ, concurring: Judge, Circuit opin- Judge Ferguson’s in all of

I concur in Part III.A. except for his conclusion

ion not resolve the

that we should at this curtilage determinations

review for

time. Judge in Part III.A. of

I also concur agree I opinion because

Kozinski’s of review for appropriate in light is de novo

curtilage determinations States, Ornelas (1996). 134 L.Ed.2d however,

Here, the district court did not Even un- curtilage

make a determination. standard, appropriate it is

der a de novo court to rule on the issue

for the district can instance. We then review the first unen- court’s determination

the district any speculation of what the

cumbered by its failure to ex-

district court intended or whether the

plicitly address the issue Accordingly, agree I complete.

record Ferguson that we should re- Judge

with

mand the district court for determina- curtilage.

tion of Milrod, Fresno, California,

Patience for defendant-appellant. Rice, Jr., Dawrence W. Office of the Sacramento, California, Attorney, L. Shipley, William Assistant United Fresno, California, Attorney, plaintiff-appellee. FLETCHER, Before: B. O’SCANNLAIN, GOULD, Circuit Judges.

Opinion by Judge RONALD M. GOULD; by Judge Concurrence O’SCANNLAIN. GOULD, Judge:

RONALD M. Circuit (“Jordan”) Appellant Ronald Jordan pled guilty robbery to one count of bank 2114(a). suffered police. call the The bank The dis- vault of 18 U.S.C. violation $50,969. approximately offense level a loss court increased trict a firearm possession of by five for present at the individuals Most four for by an additional robbery and Har- police. to Settle and statements gave escape. his On abducting a witness ris, they said that did employee, a bank dispro- contends appeal, Jordan posses- in a firearm Jordan’s not observe sentencing en- of these impact portionate Tokash, Gough, and Employees sion. court, in the district required hancements observing gun. a did not mention Wiggens to such en- relating determining facts had Carpenter said Jordan Employee hancements, a to jacket in right hand concealed his his evidence,” rather “clear and weapon may have “believed a that she of evidence” stan- “preponderance than a However, Carpenter concealed.” been vacate the sentence agree, and dard. We at the looking “avoided also said she resentencing. and remand could did not believe she suspects” and Graham, again. if identify one seen either AND PROCEDURAL FACTUAL training, in said high a school student BACKGROUND specifically,” “could not remember but she Robbery A. Bank a knife gun had a thought that Jordan 14, 1996, approximately 8:10 April On Sarkiassian, a right hip. his strapped to (“Settle”), a.m., Settle Vice Patricia customer, of a that she saw the butt said Savings of America the Home President of right hand. protruding from Jordan’s gun California, Bakersfield, arrived branch conducting a at work. While Settle Alleged Abduction B. bank, royal a blue “walk around” morning, a.m. that Jordan Around 10:40 man, A later behind her. approached

van unidentified woman contacted Car- and an Jordan, security in a dressed identified as (“Howard”) leav- as she was olyn Howard Settle, and told got out of the van uniform to apartment. According How- ing her up!” Don’t look Settle did “Look down. police of events stated ard’s version firearm, a but noticed not observe into forced himself her reports, Jordan a talkie radio. carried walkie Jordan inside, spoke on Once Jordan apartment. the bank. and Settle entered Jordan just stating, “It phone, allegedly his cell that she then learned from Settle Jordan morning, they jacked the down this went employee open to the vault needed another Lexus, get away, we’re trying we’re used his walkie talkie and safe. Jordan by police.” Howard told the surrounded accomplice to come inside the bank. ask an armed with a hand- police that Jordan was arrived, employees Jordan or- Once other later, twenty minutes gun. About at desks in the middle of dered them to sit him and the unidenti- Howard to drive told Settle and an Jordan instructed bank. Inn Motel. fied woman to California employee empty the con- unidentified Jordan, woman, There, and Howard machine of the safe and the ATM tents where, according to a motel room entered Next, bags. Jordan told plastic into two Howard, large quantity she observed everyone inside the accomplice put his guns, and two additional money, several employees were escorted to vault. additional women. men and two inside, vault, placed and the door was told to claims that she was Howard not locked. After few sec- closed but past How- of the three women onds, drive one telephone used the inside Settle Howard, apartment. According part The third and final ard’s related to whether they by they police saw sur- when drove Howard knew of the bank in ad- rounding a Lexus and van. Howard and inconclusive, vance. Her score was but woman then returned to the California deception. leaned towards Inn room. After Motel and reentered the

this, suspects group allegedly put Sentencing C. car, guns into the trunk of Howard’s Jordan was indicted for armed bank rob- and she then drove them to the Econo bery carrying and for a firearm during a given fifty Lodge. Howard was dollars violence, crime of in violation of 18 U.S.C. get and told to a room her name. How- 2113(a), 924(c)(1). (d), §§ Pursuant to registered they ard entered the room. plea agreement, a written pled Jordan Quality then two women to the She drove guilty 2113(a), to a violation of 18 U.S.C. room, Inn where one went inside a motel remaining with counts dismissed. items, placed removed them trunk of Howard’s vehicle. Howard plea agreement provided The stayed Lodge the Econo for about 45 government would recommend a three-lev- minutes, allegedly making at- several sentencing el acceptance reduction for of noon, tempts to leave. Around Jordan responsibility, superseding dismiss the in- requested and received Howard’s tele- dictment at sentencing, and recommend phone pager Jordan then numbers. the low applicable end of the sentencing allowed her to leave. After Howard re- range. agreement The also noted home, turned she went to the mall. parties disputed whether possessed Jordan apart- When Howard returned to her a firearm robbery. the bank p.m., spoke ment around 6:30 she to the Jordan’s case proba- was referred to the maintenance man who informed her of a tion presentence report office for a $100,000 reward for information about the (“PSR”). probation The officer calculated robbery. bank Howard contends that she a total offense level of 32 and recom- allegedly had no idea the individuals who mended a sentence 236 months —the responsible abducted her were for a bank applicable range.1 middle of the Jordan robbery until the maintenance man told sentencing submitted a memorandum and her what he had heard on the news. How- objections to the PSR. ard then contacted authorities. sentencing hearing The court held a on poly- Howard was later administered a 14, April 1996. Under then-extant circuit First, graph parts. test in three she an- see, precedent, e.g., United States v. Res questions on swered whether she knew the (9th Cir.1991) trepo, 946 F.2d individuals who robbed the bank. Her (en banc), Second, government told the court deception. score indicated clear preponderance boyfriend she was asked whether her of evidence stan proof applied knew the who dard of at sentencing. individuals robbed the bank. Jor Again, deception. objected findings, her score indicated clear dan to the factual PSR’s (§ 2B3.1(b)(2)(C)) 1. Pursuant to United States Federal Sentenc- firearm and four levels for ("U.S.S.G.”), ing Guidelines Manual Jordan's escape facilitate abduction adjustments base offense level was 26 after (§ 2B3.1(b)(4)(a)), bringing the offense level $50,000 for of over from a financial to 35. After the three-level reduction for ac- (§ 2B3.1) endanger- institution and reckless ceptance responsibility, Jordan’s offense (§ 3C1.2). probation ment officer added level totaled 32. brandishing an additional five levels jurisdiction pursu- haveWe insuffi- the evidence. was the evidence contending that § 1291. during the ant to 28 U.S.C. armed that he was to find cient Howard he abducted robbery or that however, DISCUSSION not, did escape.

facilitate proof. applicable challenge I. ob- court overruled The district district de novo the We review the PSR: jections and followed interpretation court’s quite obvi- kidnapping, it’s The—on Dixon, guidelines. United lady not anxious ous, this was (9th Cir.2000). re We know Mr. Jor- didn’t recognize that she findings the factual for clear error view her concerns for there is some dan and sentencing decision. Unit underlying the area that And that’s the safety. Barnes, 125 F.3d ed States to indicate she report seems [polygraph] (9th Cir.1997). failed to Because Jordan I’m satisfied problems. having application court’s object to the district kidnapping, which was there was standard, review for happening than what was much different 52(b) (“Plain Fed.R.Crim.P. plain error. at the bank. affecting substantial or defects errors ... that Mr. Jordan I’m also satisfied they although were rights may be noticed armed, testimony at from the both court.”); brought to the attention of not the circum- robbery and the time of Olano, v. 507 U.S. also see United afterwards. stances 1770, 725, 730-32, 123 L.Ed.2d 113 S.Ct. to 236 court sentenced Jordan The district (1993).2 508 super- 36 months imprisonment, months court can correct an release, special appellate a assess- Before an and vised $100 (1) trial, at “there must be error not raised ment fee. (3) (2) error, that affects plain, that is and Jordan After the court sentenced If conditions rights. all three substantial a appeal, we held when before his but met, may court then exer- appellate an are extremely dispro sentencing factor has a er- discretion to notice forfeited cise its relative on the sentence portionate effect (4) ror, seriously if only the error but conviction, process due to the offense fairness, public integrity, affects the government prove the requires that judicial proceedings.” John- reputation by clear underlying facts the enhancement States, 461, 466-67, 520 U.S. son v. United v. convincing United States and evidence. (1997) 1544, L.Ed.2d 718 117 S.Ct. 137 (9th Cir.1999), 824, 833 Hopper, 177 F.3d (internal citations marks and quotation States, den., v. McKendrick United cert. omitted); Morfin, see also United States 1179, 1163, 145 L.Ed.2d 120 528 U.S. S.Ct. (9th Cir.1998); 1149, 1151 151 F.3d (2000). (9th Turman, 1167, 122 F.3d challenges his sen- appeal, Jordan On Cir.1997). disproportion- that the tence and contends disproportion- contends that the enhancements impact sentencing of the ate disputed sentencing two impact ate of the convincing and evi- required proof by clear of a possession for dence, enhancements —one merely preponderance a However, beyond doubt if a defen- protects error a reasonable process due a 2. because timely objection to an error. sentencing, dant makes a in fair we re- defendant's interest Jesus, 217 F.3d de application of the United States district court’s Mezas view the Cir.2000). sentencing proof for harmless standard of at weighing and another for standard” the evidence offered firearm escape required to facilitate support sentencing abduction enhancement. — the “clear and the district court There, we concluded the facts under convincing proof, as evidence” lying the enhancement should have been “preponderance of evi- opposed to the proved by convincing clear and position has dence” standard. adjustment where in seven-level merit. creased the defendant’s range from 24-30 months to 63-78 months. Id. A. defendant, however, For another we held first determine ’whether the We that a “four-level increase sentence is by failing require court erred district exceptional not an that requires case clear convincing prove clear and evidence to convincing evidence.” (citing Id. for fire disputed sentence enhancements Watts, 156-57, 633; at abduction. con possession arm Kikumura, United States v. 918 F.2d evidence is clude clear (3d Cir.1990)). required disputed for enhance Jesus, In ments. Mezas de 217 F.3d at Hopper we reaffirmed and held that the do not write on a blank slate. applying pre district court erred in Restrepo, recognized ponderance of the evidence standard in process generally that due satisfied imposing a sentencing enhancement using of the evidence There, uncharged criminal conduct. prove sentencing standard to factors that defendant received a nine-level enhance (citing are set forth the U.S.S.G. Id. grounds ment on the that he committed 79, Pennsylvania, McMillan v. 477 U.S. (1986)). a firearm 92, 2411, uncharged offense an 106 S.Ct. 91 L.Ed.2d 67 suggested Supreme kidnapping. in that Id. at 645. held that dicta the We may recognized “relatively Court has “there be the difference between the exception general an to the rule that the short” sentence of unenhanced less pro standard satisfies due years nearly five-year and two the sen sentencing cess when a factor an ex has imposed tence on an offense for “based tremely disproportionate effect on the sen which was never even [the defendant] tence relative to the offense of conviction.” charged,” extremely dispro an created McMillan, 87-91, (citing Id. 477 U.S. at portionate impact requiring application of (1986)).3 However, 106 S.Ct. 2411 we held convincing evidentiary a clear and stan “extremely disproportionate the ef 643; dard. Id. at see also United States might Supreme fects that the lead Court Munoz, (9th 1117, v. 233 F.3d 1127 Cir. require higher proof at 2000) (holding upward that a nine-level nothing have in common with adjustment in sentence level for un Restrepo, this case.” 946 at 660. F.2d sufficiently charged dispro conduct was 833, portionate require the district court to Hopper,

In at 177 F.3d we held for apply the convincing the first time that “the district court clear and erred failing in convincing findings.). the clear and standard to the factual Watts, by proved 3. See also United States v. 519 U.S. tence must be clear enhancement 148, 156-57, 633, S.Ct. 136 L.Ed.2d 55 and evidence in extreme circum- (1997) (recognizing split in the circuits on stances). the issue whether relevant a sen- conduct in increase offense Jesus, only to a four-level led Mezas de we and Hopper Since “far level, imposed was the sentence uncertainty within correctly noted have in the sentence than a 100% increase less disproportion the when circuit about our sentencing guide- by the initial authorized See United States applies. test impact ate 1182, given id. at range,” line 1159, Romero-Rendon, 220 F.3d v. level, history offense “the criminal Cir.2000) 177 F.3d at (9th Hopper, (citing did not enhancement contested four-level Sanchez, 967 F.2d 833; United ‘exceptional requires case that present (9th Cir.1992); United 1386-87 ” Id. at convincing evidence.’ clear and Harrison-Philpot, 978 States 833). at Hopper, 177 F.3d (quoting 1182-83 Cir.1992)). (9th have not set Thus, de- we held that Valensia disproportionate for the bright-line rule the district process of due when prived Instead, at we have looked impact test. pertinent to the facts court determined circumstances,” without “totality of the pursuant preponder- to the enhancements dispositive. any one factor as considering Id. of the evidence standard. ance Valensia, 1183. Cir.2000), judg granted, cert. — vacated, ment remanded primary for two significant is Valensia —, 149 L.Ed.2d 133 First, it summarizes factors reasons. by us in significant considered previously (2001). impact, assessing disproportionate while Valensia, fac- we several identified consider these or other directing disproportionate effect. relating to tors “totality on cir- factors based (1) “the enhanced include: whether These This test Id. at 1182. cumstances.” the maximum sen- within fall[s] sentence requirements with the “flexible” consistent indict- alleged crime tence for the reason, this process. due Id. For (2) ment;” sentence “the enhanced whether necessarily may not six Valensia factors of innocence or presumption negate[s] possible all circumstances relevant exhaust for the prosecution’s burden process our due assessment. (3) indictment;” alleged crime in support Second, facts equally important, “the offered Valen- whether offenses re- aggregated challenged enhancement create new the court two the sia (4) separate punishment;” disproportionate whether quiring enhancements to evaluate the disputed in based on court considered a impact. [is] “the increase sentence (5) leadership “the conspiracy;” of a whether for a extent two-level enhancement of offense levels increase in the another two-level enhancement number role and (6) four;” equal possession. applying less than or firearm the [is] for dispropor- of the enhanced sen- length pertinent “the whether factors identified as length explicitly than the impact, double[s] tence more tionate the court un- initial sen- authorized the the effect of ambiguously the sentence considered the range in a case where in tencing guideline increase offense lev- combined four-level otherwise have re- at the defendant would from these Id. 1181- el enhancements. relatively Id. sentence.” ceived short 83. Valensia, in apply Hopper the announced in We rule

Considering these factors If clarified in Jordan’s separate enhancements— and Valensia. sen- held that two we today, tencing hearing conducted not were each a two-level enhancement —did convincing apply failure to the clear and impact.1 rea- disproportionate show proof would be error. evidence aggregated soned that the enhancements

929 328, 107 Kentucky, 479 Jordan’s initial sentencing guideline Griffith (1987) (a range 93 L.Ed.2d 649 “new specific S.Ct. for offense —unenhanced prosecu of criminal rule for the conduct characteristics —would have totaled 70-87 applied retroactively to all tions is be months. The contested enhancements ..., pending ... on direct review cases alone increased Jordan’s range sentence in exception with no for cases which the from 70-87 months 151-188 months— new rule constitutes a ‘clear break’ with exposing him to a 81-101 month increase past”). imprisonment and more doubling than length of his sentence. Given Jordan’s factors,

Considering the six Valensia history level, criminal and base offense one, two, three, conclude that factors contested presents nine-level enhancement apply not matter. four do to this “‘exceptional requires case that clear enhanced falls within the maxi sentence ” Valensia, and convincing evidence.’ alleged mum sentence for the crime F.3d at (quoting Hopper, 177 F.3d at indictment, the enhanced sentence does 833). negate presumption of innocence prosecution’s or the burden of challenged We hold that the indictment, alleged in the crime extremely factors had an disproportionate support facts offered in of the enhance effect on Jordan’s sentence relative to the requir ments do not create new offenses offense of conviction. The district court separate ing punishment, and the increase did not convincing the clear and in sentence is not based on the extent of a standard, and this was error. Valensia, conspiracy. at 1182. B.

The fifth Valensia factor —whether increase the total number of offense next determine whether this error equal strong- “plain.” Supreme levels is less than or The United States four — ly application explained supports “plain” of the clear and Court has that the word or, “synonymous is equivalent- evidence standard. with ‘clear’ ” Olano, challenges aggregated ly, nine-level en- ‘obvious.’ 507 U.S. at (1993). level, hancement his offense which was S.Ct. 1770 a case such as “[I]n (five levels) imposed possession for firearm this —where the law at the time of trial (four escape clearly contrary and abduction to facilitate was settled and to the law levels).4 appeal enough the time of that an —it ‘plain’ at appellate error be the time of The sixth Valensia factor —whether the Johnson, consideration.” 520 U.S. at length of the enhanced sentence more 1544. S.Ct. length doubles the of the sentence autho- by guideline rized the initial sentencing sentencing, At the time of Jordan’s set- range applies to this case provided preponderance with even more tled law that the — compelling proof force. Pursuant applied sentencing. U.S.S.G. 2B3.1, Restrepo, By section the base offense level for a 946 F.2d at 659. the time of 2113(a) however, consideration, of 21 appellate violation U.S.C. is 20. our the VI, Munoz, history a criminal category changed. With of law had 233 F.3d at government sought (acceptance responsibility) 4. The to increase Jordan’s of =12 total. On (fi- following: challenge appeal, imposi- offense level based on the +2 the does institution) (amount loss) enhancements, simply nancial +2 of +2 the but tion of other (reckless (abduction endangerment) challenges imposition + 4 fa- the of the nine-level firearm) escape) (brandishing cilitate +5 3 enhancement. 930 judge the requires one that meaningful in law after change (recognizing decision) by preponderance a convinced be appellate before

sentencing and exists.” question the fact 829; evidence that Mezas de F.3d at 177 (citing Hopper, Jesus, 643). (quotation 217 F.3d at 643 Mezas de It now settled Jesus, is F.3d at 217 omitted). But, in con and citation factor has an ex- marks a when that trast, convincing impact on the the clear and evidence disproportionate tremely demanding and re of convic- even more to the offense standard is relative sentence gov- government “prove [its] the tion, requires quires the process due than re underlying higher probability facts is prove the case to a ernment convincing evi- by by preponderance-of-the-evi clear quired enhancement Munoz, at 1127. ex rel. Coo dence standard.” dence. California ' Theater, Bros. Santa Ana per v. Mitchell impact of Jordan’s Because 90, 6, 172, 70 93 n. 102 S.Ct. 454 U.S. clearly dis sentencing enhancements was (1981); also Black’s Law L.Ed.2d see 262 precedents required our proportionate, (7th ed.1999) (stating that Dictionary 577 clear district court “indieat[es] clear and of application convincing standard. proved highly prob is thing that the to be enhance proof of an incorrect standard reasonably certain. This is able disproportionate impact was ments with greater of burden plain. that is error evidence, ... but less than evidence be doubt....”). yond reasonable

C. plain is must also “affect error that An agree think all would this rights.” cases most substantial proof of of the correct burden application must have that “the error language means sentencing hearing is critical at a criminal affected the It must prejudicial: have been Clark, 478 ly important. Rose v. court proceedings.” of the district outcome 580-82, 92 L.Ed.2d Olano, 507 U.S. at S.Ct. (1986) instructing jury (holding that omitted). (citations must Jordan therefore proof of is correctly regarding the burden showing prejudice specific make in a criminal case importance of critical However, it is evident satisfy prong.5 this regard is of and that error this in- Jordan’s increased beyond doubt that magnitude); see also Carval constitutional challenged en- carceration caused Inc., Raybestos-Manhattan, ho v. if enhance- prejudicial is these hancements (9th Cir.1986) (recognizing proved by clear could not have been ments aspects ver proof affects all burden convincing evidence. impossible it to determine dict and that burden of pre- “the whether erroneous previously have said that determinative). is a outcome of the evidence ponderance 52(b) normally kind requires the same explained dif- Rule Supreme Court has 5. The important inquiry, Federal of Criminal with one difference: between Rules ference (b) 52(a) and as follows: defendant rather than the Govern- Procedure It is the persuasion of ment who bears the burden timely the defendant has ob- When made cases, a respect prejudice. In most with 52(a) applies, a jection to an error and Rule the appeals cannot correct forfeited court of normally spe- appeals engages in a court of the defendant shows that error unless analysis of the district court record—a cific prejudicial. error inquiry de- was so-called "harmless error” —to Olano, at 113 S.Ct. 1770. prejudicial. whether the error termine fac- Here, specifically proof given questionable contested burden of Jordan — severely seriously nature of the allegations directly affects tual evidence— sentence, and integrity more fairness of his sentence. length of his affected below, the doubling it. As discussed Some discussion of the evidence is nec- support these enhance- offered evidence essary to assess this contention. When satisfy the clear may ments have failed to finding that possessed Jordan a firearm proof, of convincing evidence standard and abducted a witness applied by the district court. which was in escape, furtherance of his the district If for enhancement was not the evidence proba- court stated that it relied on “the clearly convincing, Jordan suf- clear and report, objections tion as well as the prejudice application to the of an fered due responses” report. to the The factual de- proof. burden of incorrect primarily tails the PSR consisted of excerpts police that the district court’s failure from We hold and FBI witness convincing standard apply Although hearsay the clear and statements. plain may sentencing, constitutes error that affected Jor- be used U.S.S.G. 6A1.3(a), rights. substantial we have held that “a dan’s defendant clearly has a process right due not to be D. materially sentenced on the basis of incor- Petty, rect information.” United plain parts the first three of When (9th Cir.1993), 982 F.2d amend- met, court appellate error test are “an (9th reh’g, ed on denial 992 F.2d 1015 of must then determine whether the forfeited Cir.1993). fairness, seriously integri- error affects the reputation judicial proceed- ty public or separately argu- We address may it ings before exercise its discretion to relating ments about the evidence to each Johnson, correct the error.” 520 U.S. challenged enhancement. (internal

469-70, quotation omitted).6 1. Firearm enhancement marks and citation 2B3.1(b)(2)(C) argues that had district court provides U.S.S.G. section properly applied the clear and for a five-level increase when a firearm is proof, possessed. it would have concluded brandished or Huckins, presented by govern- that the evidence Cir.1995), that, alone, standing ment was unreliable and insufficient we held support single the firearm and abduction en- statement of bank teller she gun hancements. Jordan contends that believed the defendant had a “because kept pockets at all district court’s failure to the correct he his hands his 52(b) Supreme previously 6. The Court has ex- we have never held that a Rule reme- plained dy only that: warranted in cases of actual may "seriously 52(b) An af- innocence.... error by discretion conferred Rule [T]he fairness, integrity public reputa- fect the employed should be “in those circum- judicial proceedings” independent tion of miscarriage justice stances in which a Conversely, a the defendant’s innocence. would otherwise result.” In our collateral- affecting rights jurisprudence, plain error substantial does review the term "miscar- not, more, standard, justice” satisfy riage [this] the defendant is without means that actually afforded appeals innocent. court of for otherwise the discretion 52(b) illusory. plain no doubt correct a forfeited Rule would be should Olano, 736-37, 507 U.S. at 113 S.Ct. 1770 error that causes the conviction or sentenc- defendant, (internal omitted). ing actually of an innocent but citations money, Jordan guns, that she viewed robbery” prove did not during [the] times in a hotel room accomplices together that his the evidence a However, her robbery. shortly after the armed. was the defendant through a might questioned be credibility discussed, of the six em- previously As available to that was not cross-examination here, during the present ployees to make a position are in no Jordan. We employee who al- only was Carpenter on a cold record. credibility assessment Carpenter stated gun. a observed legedly here, But, where, ap- court as the district right hand had his police that Jordan to proof, we must wrong standard of plied the jacket top on of his abdo- in his concealed that the fairness and necessarily conclude may weapon a have and “believed men is threatened. integrity proceeding of the added). But (Emphasis concealed.” been and a contradictory statements Because of look- that she “avoided Carpenter also said subject to testimony under oath lack of and did not believe suspects” ing at cross-examination, cannot determine again. if identify either one seen could she support the evidence offered whether Thus, employees the bank none of —who sufficiently firearm enhancement was during robber- to notice details are trained finding that Jordan support reliable' definitively to assist law ies enforcement— during a firearm the bank rob- possessed a firearm at the time Jordan with observed convincing evidence. bery by clear and Graham, a robbery. high school of the although training, stated student specifically,” she not remember

she “could 2. Abduction enhancement that Jordan either thought she recalled 2B3.1(b)(4) provides: section U.S.S.G. strapped right to his gun or a knife had a “(A) facili- any person If was abducted to Sarkiassian, customer, claims to hip. (B) levels; if by 4 escape, tate increase sticking gun butt of a out have seen the restrained to any person physically was Thus, eight hand. right of the offense or facilitate commission robbery, Sar- present witnesses by 2 escape, increase levels.” facilitate square- only individual who kiassian is the 1(a) to section Application note U.S.S.G. gun. have seen a ly claims to “ that a means 1B1.1 states ‘abducted’ addition, none of the witnesses testi- accompany an offend- victim was forced they or at trial where fied under oath location.” er to a different Huckins, 53 See could be cross-examined. Furthermore, probation at 279. supporting offered The sole evidence attempt to these officer did not interview Howard allegation that Jordan abducted precisely what to determine individuals police was Howard’s statement Rather, merely the PSR they witnessed. Although in the PSR. incorporated gave to repeated statements the witnesses poly- concedes that Howard’s government police. “troubling” particular- are graph results7 — she knew Jordan before sure, ly whether there was other evidence

To be government main- alleged abduction—the might support finding of firearm of abduction robbery. tains that the evidence during the For exam- possession questions because said nevertheless reliable ple, may probative it Howard be Cir.1997). govern- Jordan nor the unstipulated polygraph ev- Neither admission of 7. The district court abused contends that the is left to the "sound ment idence at admitting polygraph re- court....” its discretion discretion of the trial Cordoba, sentencing. port at enhancements, firearm and abduction knew Jordan and wheth- both whether Howard are not the same. significantly of which rest on Howard’s er Howard was abducted presented unsworn version of events out of knew Jordan before Howard Whether our circuit law court. While has not been important is alleged abduction because issue, clarity the model on this we have “abducted,” meaning of the Sen- within that no doubt here the district court did Guidelines, that the tencing means victim proof. not the correct burden of accompany the offender to to was forced seriously This error affects the fairness 1B1.1, U.S.S.G. different location. See integrity and of Jordan’s sentence. 1(a). Jordan, as n. If Howard knew app. open, this polygraph results leave plainly We hold that the district court cast doubt on whether she would sentencing by making erred at factual Because “forced” to leave with Jordan. findings underlying sentence enhance- only was the evidence Howard’s statement impact, disproportionate ments with where support the abduction en- submitted findings supported by these were not clear given hancement —and was not under oath convincing and evidence. remand to subject to cross-examination —Howard’s the district court to determine whether the Huckins, 53 credibility is essential. See convincing evidence is clear and that Jor- (holding accomplice’s at 279 that F.3d possessed dan a firearm the bank that was not made under oath statement robbery and whether he abducted Howard subject or at trial to cross-examination was escape. to facilitate his As we are not in a reliable.”). “inherently evidence, position weigh conflicting persua- logic of Mezas de Jesus is important responsibility which is an of the There, challenged the sive. the defendant court, opinion district no on state what sufficiency supporting a of the evidence the district court’s determination should be the dis- kidnapping enhancement where heightened proof. under this upon trict court relied the statement of an Munoz, (remanding 233 F.3d at 1127 victim, unreliable which was contained district court to determine whether evi- police report incorporated in the support convincing dence is clear evidentiary hearing sub- PSR without “uncharged upon up- conduct which the ject to cross-examination. We held based,” adjustments stating ward were but erroneously on the the district court relied district opinion “no on what court’s finding govern- PSR and erred height- determination should be under this uncharged had established the kid- ment proof.”). ened standard of by of the evi- napping Jesus, 217 at 643- dence. Mezas de II. 44. Jersey, Relying Apprendi on v. New light In conclusion that the two of our 2348, 147 L.Ed.2d enhancements, yielding prolonged disputed (2000), that the fire- Jordan also contends proof by clear and

imprisonment, required arm and abduction enhancements amount- evidence, this is a case that uncharged ed criminal conduct evidentiary hearing appears to call for an proved beyond pled should have been witnesses, credibility of the so argument This a reasonable doubt. Howard, particularly may fairly be tested merit. without cross-examination. have Supreme Court held Apprendi, concluded that the record does not show “[ojther prior fact of a con- overwhelming support than the O’SCANNLAIN, penalty Judge, Circuit viction, any fact that increases the concurring: prescribed statuto- beyond a crime the for jury, be submitted to a ry maximum must I concur in the result and in most of the beyond a reasonable doubt.” proved opinion separately of the I write Court. added). (emphasis The flaw

Id. at 2362-63 reluctantly, I un explain why, believe that that the district argument in precedents should der our most recent we penalty beyond his court did not increase plain that it was error not to hold statutory maximum. See 18 U.S.C. the convincing” “clear and standard of 2113(a) (providing twenty-year § for in proof to the sentence enhancements this sentence). maximum regard I case. do so without United Cir.2000), (9th Valensia, 222 F.3d 1173 argues that with the enactment vacated, granted, judgment rt. ce U.S.S.G., the terms of 18 U.S.C. — U.S. —, 121 by and remanded S.Ct. necessarily restricted the district 3553 1222, (2001), no 149 L.Ed.2d 133 which selecting high court from sentence as as effect, precedential longer has notwith statutory previ- maximum. have standing interesting analysis some rejected precise ously argument: this upon in the now-vacated case relied argues that the maximum The dissent opinion. Court’s penalty longer available is no the statu- The sentence enhancements this case tory maximum under the Guidelines be- appli totaled nine levels increased judge longer no has discretion to cause sentencing range by cable more than dou statutory if up sentence to the maximum precedents ble. Under our of the last two sentence, properly ac- Guideline years, degree this of enhancement is suffi quired, falls below maximum. We “extremely dispro cient to constitute agree that the discretion to sentence portionate on effect” the sentence and guideline range is limited. above require convincing” the “clear and stan However, disagree that we the limitation proof. Restrepo, dard of United States v. penal- maximum of discretion alters “the (9th Cir.1991) (en banc). 654, 946 F.2d ty for available the crime committed” precedents begin These recent with Unit any way Supreme that the Court would (9th Hopper, ed States v. 177 F.3d 824 recognize important as for the constitu- Cir.1999), wherein we held a seven- tionally required proof standard of at than level enhancement which more dou sentencing. applicable sentencing range bled the re Restrepo, n. 4. 946 F.2d quired higher proof. standard of Id. reject Jordan’s contention that Hopper, appear at 833. Since to have the firearm and abduction enhancements consistently held that when the enhance pled proved beyond should have been greater ment is than four and more levels a reasonable doubt. applicable sentencing doubles

range, then the enhancements must be proved convincing” under the “clear and CONCLUSION proof. Compare standard of United States We vacate Jordan’s sentence and re- (9th Munoz, 1117, v. 233 F.3d Cir. pro- mand to the district court for further 2000) (requiring convincing” “clear and ceedings opinion consistent with our proof for a nine-level enhance resentencing. applica ment which more than doubled the VACATED, range) and REMANDED. ble and United States Mezas de (9th Cir.2000) Although formula. Jesus, 217 F.3d Johansson, change brought by Hopper about was ac- (same) with complished, remarkably, most without ben- at *6-*7 2001 WL rehearing efit of en banc or decision 2001) “prepon May (affirming Cir. banc, accomplished Court en indeed sub en for a four-level derance” standard silentio, change sufficiently has been did not more than double hancement which persistent any to make deviation there- and States v. applicable range) United error, only from not but plain error. 1139, 1143-44 Herrera-Rojas, 243 F.3d approve I do not of path While we (9th Cir.2001) (affirming “preponderance” law, get have taken to to this state of the I enhancement for a three-level standard reluctantly judgment concur appli did not more than double the which Court. range). cable note, however, the important It brings to this

curious evolution that us of proof. of our law on standard

state prior Hopper, we held

cases was “preponderance” America, of UNITED STATES en appropriate though even perfectly Plaintiff, four greater was much hancement and sentencing range applicable levels and the Pyramid Indians, Lake Paiute Tribe of more than double. was increased well Petitioner-Appellant, Sanchez, 967 F.2d States v. United Cir.1992) (9th (affirming 1385-87 “preponderance” standard where enhance COMPANY, ORR WATER DITCH range ment was 14 levels and increased al., Defendants, et months); months to 63-78 from 10-16 Harrison-Philpot, Fernley; Irri- Town of Truckee-Carson Cir.1992) (9th 1520, 1522, 1523-24 District; gation Engi- The State (remanding “preponderance” neer, Defendants-Appellees. where enhancement was levels range increased from 41-51 months to Fernley; Appeal Town of of State months). Hopper, decided in Engineer Ruling No. 4116 attempt distinguish did not these America, United States cases, and, indeed, 1992-ffled did not even Plaintiff-Appellant, to cite them. It was for this reason bother that, decided, Hopper soon after “uncertainty Hopper noted created Pyramid Lake Paiute Tribe higher

this circuit as to when the burden Indians, Petitioner, proof applies.” United States v. Rome ro-Rendon, 1159, 1161 Cir. Company, Ditch Orr Water 2000). al., Defendants, et Nonetheless, above, appears it as noted though any uncertainty by Hop- as created per moderated four of has been because Fernley; Irri- Truckee-Carson Town subsequent our cases over the last two District; Engi- gation The State consistently years have adhered to its neer, Defendants-Appellees.

Case Details

Case Name: United States v. Ronald Jordan

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 5, 2001

Citation: 256 F.3d 922

Docket Number: 97-10255

Court Abbreviation: 9th Cir.