United States v. Steven Douglas Dare

trans- permanent* on its crab endorsement and, having record- been regulations LLP - . LLP license. ferable regulations, with state compliance ed harvests.” “documented be deemed must § 679.2. 50 G.F.R.

See that, under point to out important

It is Program, Rationalization

the new Crab Aleutian Is- receipt of an Trojan’s

Alaska will crab endorsement king brown

lands ecology of in the disruption any

not cause brown Aleutian Islands designated America, UNITED STATES area. Under the king crab endorsement Plaintiff-Appellee, Trojan did not if Alaska program, new king brown Aleutian Islands an

receive endorsement, other vessels then crab DARE, Douglas Defendant- Steven share and quota have received would Appellant. that would fishing quota individual annual However, Trojan. gone to Alaska No. 04-30202. its Aleutian Trojan receives once Alaska Appeals, United States Court endorsement, king brown crab Islands Ninth Circuit. may quota receive a share Trojan Alaska fishing quota based annual individual Feb. Argued and Submitted history. Because harvesting on its own Program man- Rationalization the Crab 23, 2005. Sept. Filed catch for the fish- a total dates allowable king crab that

ery, the amount of brown same. will remain the

could be harvested

CONCLUSION district REVERSE

We summary judgment granting

court’s order denying defendants, the part VACATE Trojan, and to Alaska

summary judgment in- district court with

REMAND summary judgment

structions to enter Trojan. Alaska

favor injunction preliminary ordered directing August court on

this Trojan par- Alaska allow

defendants on an basis Western

ticipate interim fishery golden king crab

Aleutian Islands 15, 2005, if Alas- August on opened an Trojan originally qualified had

ka king crab endorse-

Aleutian Islands brown license, LLC3873, shall No.

ment on its Trojan’s Alaska pending

remain in effect king of an Islands brown

receipt Aleutian Donahoe,

Michael Federal Defenders of Montana, Helena, MT, for the defendant- appellant. Stewart,

Paulette L. United States At- Office, Helena, MT, torney’s plain- for the tiff-appellee. O’SCANNLAIN, LEAVY,

Before: BEA, Judges. Circuit LEAVY, Judge: Circuit Douglas Stephen appeals his statu- tory mandatory ten-year minimum sen- imposed pursuant tence to 18 U.S.C. discharging during drug trafficking the course of a He crime. contends that he was sentenced violation of the Sixth Amendment and that the dis- in using preponderance trict court erred of the evidence standard when it found he a firearm. We hold 841(a)(1), a fire- possess did mandatory minimum sentence Dare’s arm, 12-gauge a Winchester judicial factfinding utiliz- to-wit: through imposed Model, serial shotgun, stan- Defender pump of the evidence ing preponderance L2146716, Amend- in violation of the Sixth number not violate dard does States, 924(c); ment, to Harris pursuant ... did know- Dare] III: [That Count judgment. affirm We unlawfully, pos- intentionally, and ingly, to distribute and distrib- with intent sess BACKGROUND substances, to-wit: ute controlled Dare met Steven April On of sub- more of a mixture grams or and he at a local bar coworkers several marijuana, in viola- containing stances He stated several hours. alcohol for drank 841(l)(a). tion of 21 U.S.C. trashed.” His “pretty well that he was indicted under which Dare was The statute Casey arrived the bar younger friend 924(c), II, provides on Count not know. that Dare did person with a part: in relevant person that this wanted Casey explained (c)(1)(A) that a Except to the extent marijuana. buy Unbeknownst some is otherwise greater minimum sentence buyer was a Casey, the both Dare and by any by this subsection or provided for the Montana working informant drug who, law, any person provision of other drug task force. any crime of during and in relation to Dare, Casey, and the infor- The trio of (in- trafficking crime drug violence or Dare sold the mant drove to Dare’s home. drug or traf- cluding a crime of violence marijuana for bag informant a $200. for an en- ficking provides crime that they if would like Dare then asked by the if committed punishment hanced him, they marijuana smoke some deadly dangerous weapon or or use of a next Dare then went into the declined. device) may person for which the be brought shotgun. his loaded room and back in a court of the United prosecuted any “didn’t want Dare stated that he firearm, who, or uses or carries selling badges coming back at me for crime, any pos- such furtherance shotgun to his drugs.” Dare handed the shall, firearm, addition sesses him if he wanted Casey friend and asked provided for such crime punishment Casey had been at to shoot it outside. drug trafficking or crime— violence discharged the shot- Dare’s home and had (i) imprison- be sentenced to term but, past, him in on this gun with years; than ment of not less occasion, Casey declined to shoot the shot- (ii) brandished, sen- if the firearm is be gun. shotgun Dare then took the to his of not imprisonment tenced to a term of door, door, opened front and dis- years; less than 7 air, aiming charged shotgun (iii) discharged, firearm is be sen- pile. over his wood of not imprisonment tenced to a term of A filed a four-count grand years. less than 10 III, II and to which indictment. Counts (e)(1)(B) by a possessed If the firearm guilty, alleged: plead Dare later violation of this person of a convicted ... in further- Count II: [That Dare] subsection— crime, drug trafficking of a to-wit: ance (i) rifle, a short-barreled short-bar- possession with intent to distribute and shotgun, reled or semiautomatic assault marijuana violation distribution weapon, person shall sentenced to Dare acknowledged be in his plea hearing of not that he imprisonment knowingly possessed a term of less than shotgun in furtherance of years; the crime of marijuana. with intent to distribute (ii) machinegun is a or a destructive de- stated, questioned by when the district vice, equipped or is with a firearm si- court, that penalty the maximum he faced muffler, the person lencer or under the charge impris- was life imprison- shall be sentenced to a term of onment. ment of not than BO less Dare was sentenced on April (c)(1)(C) In the case second or sub- argued government that for the subsection, sequent conviction under this establish that he had brandished or dis- person shall— charged shotgun in relation to the (i) be sentenced to at term of imprison- transaction, drug government had to years; ment of not less than 25 and satisfy a proof beyond standard of a rea- (ii) if the firearm involved is a machine- doubt, or, minimum, sonable at a a clear , gun or a destructive or device and convincing proof. standard of His equipped with a firearm or silencer fire lawyer witnesses, called several including muffler, arm be sentenced to imprison sons, Dare testify and his two. adult to ment for life. about Dare’s level of intoxication and the regarding his of the shotgun. details use 924(c)(l)(A)-(C) (2004). 18 U.S.C. Dare highly testified that he was intoxicat- “brandishing]” Neither nor “disc- ed shotgun discharged and that was firearm, harging]” drug after the transaction had been com- 924(c)(l)(A)(ii), (iii), alleged was pleted. indictment. 924(c), Regarding sentence under plea Dare of not at guilty entered his the district court judge stated that he “had arraignment. He later stated that he had here,” no discretion and further stated: discharging no recollection of shotgun just do, I it outrageous, find like his sons until he was informed of that fact when the man, 12 grams marijua- that this magistrate judge read the indictment to na, years going spend ten of his life from the bench. in a prison of the United States. change plea Dare moved to his from not most, well, very say, And at the I could guilty guilty. In his motion he stated: deal, years seven is the best that and outrageous. borders on But that’s what parties recently recog- have

[T]he law is. nized that under Harris the court deter- You a man in a commu- who’s lived nity recognized mines whether sentence under 18 for 25 who is honest, reliable, should be hard working, [Count who II] brandishing enhanced for discharging give would the shirt off of his back a firearm. ... admits he anybody, given [Defendant who has two sons to this possessed shotgun during country drug country, to defend this and disputes going up crime but that he either brand- to lock him for ten we’re it, outrageous? ished or which I think it is. are issues and that’s not outrage. for this Court at the time of So will be a Un- Harris, supra. willingly. going But I’m it. do novo. States v. govern- di claim de See United found that the court The district Cir.2002). Smith, F.3d preponderance ment established dis- shotgun “was the evidence drug with the conjunction

charged in ANALYSIS concluded, court also transaction.” Amendment Protections A. Sixth proof is however, “if the burden of that he was sentenced argues convincing,” government’s and clear constitu violation of the Sixth Amendment noted that Dare The court proof failed. Apprendi, articulated protections unaware tional and was clearly intoxicated recently most Unit Blakely, then in and was advised gun until he that he used the — -, ed The court States arraignment. of that fact L.Ed.2d 621 convincing no clear found there was (1) Apprendi, “[o]ther the Court held intent to intimi- that Dare had evidence conviction, any prior than the fact of men with young the two date or threaten (2) penalty for a crime be that increases the the two men were shotgun; maximum yond prescribed statutory the shot- discharge threatened jury, proved (8) to a the dis- must be submitted that Dare intended gun; or Apprendi, a reasonable doubt.” a of the shotgun to be charge of 490, In 120 2348. Blake 530 U.S. at S.Ct. drug transaction. stated, ly, precedents “Our the Court Dare to a The district court sentenced however, clear, ‘statutory make minimum ten under 18 of purposes maximum’ for is the Apprendi 924(c)(1)(A)(iii) discharging a for U.S.C. judge may impose a maximum sentence conjunction drug a transaction. gun in in solely on basis of facts reflected Dare to zero The district court sentenced jury by verdict or admitted the defen of imprisonment for the months Blakely, (empha 124 at 2537 dant.”. S.Ct. marijuana.1 original). sis in In the Court stat 6, Appeal May on Dare filed a Notice ed: brief, argued 2004. in Accordingly, holding we reaffirm our employed high- a district court should (other Any prior than a Apprendi: proof er at and that standard conviction) necessary support which is Apprendi his sentence violated v. New Jer- exceeding a the maximum au- sentence 2348, 466, 147 sey, 530 U.S. 120 S.Ct. by thorized the facts established (2000) Blakely v. Wash- L.Ed.2d 435 plea guilty or verdict must be 2531, 296,

ington, 124 S.Ct. 159 542 U.S. proved admitted the defendant or (2004). Blakely was decided L.Ed.2d 403 jury beyond a reasonable doubt. 2004, after Supreme Court June Booker, 125 S.Ct. at 756. April Dare was sentenced government The maintains We review de novo whether the Dare’s sentence did not violate the Sixth pursu and should be affirmed applied district court the correct standard Amendment Banuelos, holding ant in Harris v. United proof. See United States (9th Cir.2003). 2406, 700, 545, 122 Because 536 U.S. S.Ct. 153 objection Apprendi L.Ed.2d 524 The defendant Dare raised his court, marijuana Appren- quantity review his Harris sold a small the district we prior 1. Dare had no convictions. criminal Amendments have been ob and Sixth pistol unconcealed with an pawnshop

in his served; for violat- Harris was arrested and the Government has been side. at his laws, including 18 and firearms ing drug any below impose authorized 924(c)(1)(A). indictment, sim- The why, Appren- That as the maximum. case, in this said indictment ilar to the noted, “nothing history sug in this di a -firearm and “brandishing” nothing of impermissible judges it is gests that of the to subsections no reference made taking into con to exercise discretion — at a guilty Harris was statute. relating both various factors sideration carrying a knowingly trial of bench imposing a to offense and offender—in trafficking drug to a during and in relation 481, Id. at range.” within the judgment disputed sentencing, At Harris crime. 2348, 466, 120 S.Ct. just as Dare gun, brandished he 435"_[T]he judicial factfind that he brandished disputed to a ing “expose does not defendant The district present case. gun than that otherwise punishment greater found, by preponderance in Harris court Apprendi, legally prescribed.” [530 evidence, had brand- that Harris 10, 120 at n. S.Ct. 2348. U.S.] him to seven gun and sentenced ished a Harris, 551, 122 S.Ct. 536 U.S. at U.S. that under Jones 2406. Harris maintained (emphasis original). States, 526 U.S. v. United plurality Harris reaffirmed (federal (1999) car- L.Ed.2d 311 Pennsylvania, holding in McMillan setting out interpreted jacking statute offenses), brandish- separate elements may legislature specify had a state offense for which he separate is a

ing maintained mandatory also minimum not been indicted. Harris for a the condition brandishing if is a that even a firearm with- sentence for factor, jury must find this factor of the making the condition an element out doubt. Id. a reasonable 566-67, Harris, at 536 U.S. crime. See plurality Harris con- stated, 122 2406. The S.Ct. Court, opinion, plurality in a The “ 924(c)(1)(A) single § offense” cluded: defines brandishing and regards “[the statute] and employing Reaffirming McMillan and sentencing factors be discharging as case, that we outlined in approach the elements judge, the not offense at provision that the conclude Harris, jury.” 536 U.S. by the to be found 924(c)(l)(A)(ii), issue, is con- distin- 2406. The Court at S.Ct. 2-year increase Basing stitutional. that on the basis guished Apprendi on a minimum sentence the defendant’s Apprendi extended judge-found facts brandishing finding of does judicial statutory maxi- beyond the of the Fifth requirements evade the mum, in Harris judge-found facts while “simply Congress Amendments. Sixth minimum the defendant’s increased always . has been factor that took one the maximum and did not affect sentencing courts to bear considered 562-65, Harris, at 536 U.S. sentence. pre- ... and dictated punishment on plurality Harris distin- 2406. The factor.” given weight cise to be stating: Apprendi, guished 89-90, McMillan, at facts, finds all those jury [O]nce That factor need L.Ed.2d 67. has the defendant says Apprendi indictment, submit- crime; alleged Fifth not be been convicted Harris, 557, 578-79, jury, proved beyond or a See at ted to U.S. (Thomas, (“[T]he J., dissenting) doubt. S.Ct. 2406 reasonable analysis adopted by constitutional plu- Harris, 568, 122 at S.Ct. 2406. rality equally would hold true if man- argues that Harris should be dis- datory minimum for a violation of tinguished Harris’s minimum because 924(c)(1) brandishing was five .without years, from five to increased two seven years, but the minimum with upon based the court’s determina- brandishing imprisonment.”). was life firearm, tion that Harris brandished the Breyer Justice observed his concur whereas his minimum doubled from five to ring opinion Harris one- cannot firearm, discharge for ten easily distinguish Apprendi from Harris thereby raising constitutional concerns. logic.” “in terms of 536 U.S. at cannot limit Harris upon We based 569, 122 S.Ct. 2406. Justice Thomas ob of the sentence imposed harshness 924(c). served in dissenting opinion Harris plurality The Harris stated: that the fact that a defendant brandished a The Fifth and Sixth Amendments en- “indisputably prescribed alters the get sure the defendant “will never range penalties to which exposed he is punishment bargained more than he 924(c)(1)(A).” Harris, under 18 U.S.C. crime,” when he did they do not (Thomas, U.S. at promise “anything that he will receive J., noted, dissenting). Justice Thomas Apprendi, less” than that. [530 U.S.] “Whether one raises the floor or (Scalia, J., raises the 120 S.Ct. 2348 concur- ceiling it impossible dispute ring). jury If the grand alleged, has exposed defendant found, greater punish jury trial has all the facts prescribed.” ment than is otherwise Id. at necessary maximum, impose 579, 122 S.Ct. 2406. He stated: government barriers between and defen- dant fall. judge may any select Looking to the principles that animated range, sentence within the based on the decision in Apprendi and the bases facts not alleged indictment for the historical practice upon which proved (rather Apprendi those facts rested than the histor- —even specified by legislature, and even pedigree mínimums), ical of mandatory if they persuade logical to choose there are no grounds for treating much higher sentence than he or she facts triggering mandatory mínimums imposed. otherwise would have any differently That a than facts that increase sentence, fact affects the defendant’s maximum. In either case so, dramatically even does not itself predict the defendant cannot judg- it make an element. from ment the face of felony, see [Apprendi], 478-79, 530 U.S. at Harris, 566, 122 536 U.S. at S.Ct. 2406. S.Ct. and the Thus, Harris, under the district court absolute limits punish- of his could have sentenced Dare to any sen- change, constituting ment an increased tence within range of five to life penalty. without fact finding. further According to 579-80, 122 at Id. S.Ct. 2406. Harris, judge-found facts that increase a sentence under agree are not the We that Dare predict could not jury’s domain findings because the punishment do not his from the face of his indict- possible increase the sentence the ment or from the facts he admitted in his statutory maximum imprisonment. of life plea. For imposed most sentences sen statutory mandatory minimum ply 924(c)(1), sentence is minimum tences). though the de even maximum sentence possible exposed to a authority as question

fendant Hams’ We cannot Harris, Massanari, Hart v. binding precedent. imprisonment.2 as life severe Cir.2001) (“A (9th 1155, 1171 (Thomas, 266 F.3d 578, 122 at U.S. control Supreme Court will decision data); J., (citing dissenting) law unless and until the corner of the Nevertheless, 2K2.4(b). we U.S.S.G. or modifies itself overrules Supreme Court imposed distinguish the sentence cannot may courts voice Judges of the inferior it. in this case. imposed the one from Harás must.”); criticisms; they it but follow their (“[E]ven Duncan, anal constitutional 413 F.3d at argues 683-84 [Booker of decisions by logic spirit those effectively overruled in Hams was ysis — interpreted Blakely ] could be U.S.-, Booker, plurality rationale for previous the Court’s eroded agree 621. We at mandatory minimum sentences permitting to reconcile Hams is difficult factfinding, certainly it judicial on based Amend Sixth Court’s recent Supreme appellate an not our role as intermediate has not Harris jurisprudence, but ment Su overrule a decision of the court States See United been overruled. an anticipate such Court or even preme (9th Cardenas, Cir. 405 F.Sd Court.”). overruling by the (“Booker 2005) bear on mandato does not Jones, mínimums.”); States v. United ry B. Standard of Proof Cir.2005) (“Under (7th 726, 732 418 F.3d Harris, af Supreme Court not Hams, Court did Supreme which the statutory minimum mandatory firmed ten- imposition of the disturb upon the dis based year seven sentence for vio sentence minimum year finding by preponderance court’s trict 924(c)(l)(A)(iii) not violate the did lation had brandished that Harris the evidence Amendment.”); States United Sixth Harris, 551-52, 122 S.Ct. at gun. (7th Cir.2005) Duncan, 413 F.3d the sen argues that because 2406. Dare Blakely suggests (“[N]othing in Booker or had the “discharging” tencing factor of reconsidered, much less the Court doubling his “disproportionate impact” Harris.”); overruled, id. at holding its the district to ten from five from other cir (collecting utilizing preponderance n. 3 cases court erred sentencing.3 standard ap the evidence does concluding Booker cuits device, with a firearm equipped or is live States v. Cf. muffler’). Cir.2005) ("If the se- Given at the or firearm we look silencer 411-12 imposition a life sen- a life sentence for on possibility vere constraints theoretical world, violation, 924(c) reasoning it would seem pre-Booker of Book- any § in the the tence principles set forth Amendment the suggests strikingly there is no Sixth at odds er violation.”) with However, advisory under the sudden Guidelines hold in Booker to (still only possible- regime, prevents was a life sentence nature of the Guidelines person departure 924(c) a upward § absent an vio- mandatory) provisions of from —for who, a convicted for having previously Amendment.”) been lating the "Sixth 924(c), again § convicted of violation of argues the district additionally subsection, the second time violating argument on erroneously rejected his court U.S.C. weapon. See 18 very serious asserts of his the effect intoxication. 924(c)(l)(C)(ii) (mandating life § 18 definition in "brandishing” subsequent only in the case 'second 924(c)(4) spe- showing of requires a § where 'the this subsection’ conviction under display the firearm intent that the machinegun cific or destruc- involved is a 642 rule, general preponder

As a relatively wise have received a short sen- appro Jordan, ance of the evidence standard is the tence. (quoting 256 F.3d at 928 priate findings Valensia, 1182). standard for factual used 222 F.3d at sentencing. for See United States v. How argument Dare’s application of (9th ard, Cir.1990). 1085, 1089 “disproportionate impact” test would be “ However, sentencing factor ‘[W]hen cognizable under our case law his sen- extremely has an disproportionate effect imposed solely tence were by reference to on the sentence to the relative offense of enhancements under the federal sentenc- conviction,’ government may have to sentence, ing guidelines. however, His satisfy convincing’ a ‘clear and standard.” by was imposed mandatory virtue of the 824, Hopper, v. 177 States F.3d 833 minimum requirements of 18 U.S.C. (9th Cir.1999) (quoting United States v. 924(c). The sentencing guidelines refer (9th 654; Cir.1991) Restrepo, 946 F.2d mandatory minimum sentences un- (en banc). Jordan, United States 924(c). 2K2.4(b) der See U.S.S.G. (9th 922, Cir.2001), F.3d we stated that (“[I]f defendant, whether or not con- effect, a disproportionate determine we crime, victed of another was convicted of “totality circumstances,” look at the 924(c) violating guideline section ... including the relating several factors sentence is imprison- the minimum term of disproportionate effect set forth in United statute.”). required by Thus, ment Valensia, States v. F.3d minimum sentences in (9th Cir.2000), granted, cert. judgment va court, bind the district sentencing cated, and remanded guidelines and enhancements. 149 L.Ed.2d 133 These (1) date, factors include: whether the To applied enhanced we have “dispropor sentence falls within the maximum sen tionate impact” test in the case of tence for the alleged crime in the guideline indict enhance (2) ment; whether the enhanced sentence ments. Gonzalez, See United States negates presumption Cir.2004). of innocence or F.3d The en prosecution’s burden of proof for the hancements formerly under the (3) crime alleged indictment; wheth federal guidelines increased the defen er the support facts offered in of the en possible dant’s maximum sentence. See — hancement create new requiring -, offenses S.Ct. at (4) separate punishment; whether the in ease, 160 L.Ed.2d 621. contrast, This crease in sentence is based on the extent only statutory involves mandatory mini (5) of a conspiracy; an whether in mum increase judge’s sentence. The findings did the number of offense levels is less than or not expose higher Dare to a maximum four; (6) equal to whether length which, under Harris of the enhanced sentence more than dou and the now advisory guidelines, is life length bles the of the sentence authorized imprisonment upon based allegations initial sentencing guideline range in the indictment. See 536 U.S. at a case where the (“The defendant would other- judge may im- presence to "make the of the firearm known "discharge” conclude that a requires only person to another general order to intimidate Voluntary that intent. intoxication is not

person.” The district court general determined a defense to a intent offense. See Jim, "discharged” United States v. 211, firearm in relation to 865 F.2d 212-14 drug (9th accordingly. Cir.1989). offense and sentenced The district court did not err "Discharge” 924(c). is not.defined We rejecting argument. Dare's intoxication a maximum, a defendant receives sen minimum, any in cases where or pose ”). tence, judge facts found a range.:.. based on within other Harris, conviction, process higher con- Therefore, prior due a other than under higher a stan- require judge sentence the cerns do than the maximum be satisfied. proof solely dard of on facts imposed based could have by the or found either admitted defendant arises whether question doubt. by jury beyond a a reasonable See following Booker be resenteneed should — -, v. United States a 2004 under he was sentenced because (2005); sys- sentencing then-mandatory guidelines 296, 124 Washington, 542 U.S. Blakely v. the sentence decline to vacate tem. We 2531, 159 Blake L.Ed.2d 403 resentencing pursuant and remand analysis. our ly changed and Booker outcome of Dare’s re- because the Booker be different. possibly could not First, only although we used to consider Duncan, Jones, 732; 418 F.3d at See a we statutory maximum for (“If to be Mr. Duncan were F.3d at 684 maximum un- now also consider the must resentenced, would still district court Sentencing Guidelines when de- der the on the to sentence him have no discretion man- under a fendant has been sentenced to less than the firearm offense Further, we datory sentencing scheme. minimum.”). The district court thirty-year that fact increased only on whether focus “discharged” firearm was found that the máxi- defendant’s sentence above trafficking crime. This drug during a words, mum sentence. other guidelines 924(c) factor,” and “sentencing under effect of a fact found we focus on the court to sen- requires the district sentence. judge on the defendant’s mandatory mini- to a tence the defendant facts distinguish between longer noWe of ten mum sentence crime and those elements of the which are 924(c)(l)(A)(iii). other was no There traditionally sentenc- considered binding the range sentencing guidelines factors. ing that resulted district court ques- no reason to We have Booker error. Second, a defen- any facts that increase factfinding,4 and it tion the district court’s guide- the maximum dant’s sentence above question role to is not our (1) to a proven must be lines sentence or the minimum sentences under Here, (2) doubt. beyond a reasonable case. of this individual prosecution Dare’s sentence fact that increased AFFIRMED. pre- only by a was found Accordingly, evidence. ponderance of the BEA, dissenting: Judge, Circuit remanded for I this case should be think to Unit- sentencing hearing pursuant new v. dissent. Harris United respectfully (9th Ameline, 409 F.3d 1073 ed States 122 S.Ct. banc). 2005) (en (2002), law Cir. June longer good is no L.Ed.2d 524 However, Groce, extent this increase United States Cf. Cir.2005) ("The problematic conclusion factual sentence is n. 2 Groce’s Booker,-U.S.-, did result in the gun was brandished States v. higher than which imposition of a sentence any problem will be which was five-year maximum sentence court resentences when the district remedied use, car guidelines for the under the available guidelines.”). advisory under the gun ry, absent brandish. I. Facts enforced, that the laws should not be judgment there has to be and there has pleaded guilty comity to be an issue of and consider- during drug- the commission of a ation of what is warranted terms of trafficking crime. Based on this fact proportionality the of wrong the that’s alone, formerly-mandatory under the Sen- done. Guidelines, tencing judge the required was You have a man who’s lived a commu- to sentence Dare to a maximum term of nity years, for 25 recognized who is as imprisonment years. of 5 18 U.S.C. honest, reliable, working, hard who 924(c)(1)(A)(i); U.S.S.G. 2K2.4. give would the off shirt of his back to found, judge by preponder- Once the anybody, given who has two sons to this evidence, ance of the that Dare discharged country country, to defend this during the firearm the commission of a going we’re to lock him up years for ten crime, drug-trafficking the judge was re- outrageous? and that’s not I think it is. quired to sentence Dare to a term of im- I So will be a outrage. Un- of prisonment of 10 willingly. But going I’m to do it. 924(c)(1)(A)(iii); 2K2.4(b). U.S.S.G. going I’m finding to make a of fact here. Under formerly-mandatory Sentenc- I’m going to gun find that was Guidelines, ing Dare’s sentence went from brandished, I’m going to find that mandatory sentence of 5 to a gun discharged. the burden If of mandatory years sentence of 10 based on a proof is clear and convincing, then I charged indictment, fact not admit- think government’s proof has failed defendant, ted by jury nor found in this case because these factors. beyond a reasonable doubt. think, I in listening tape, to that aspects Two judge’s the trial ruling Mr. clearly was intoxicated. He First, important to note. this is one of testified, has uncontroverted, and it is he those rare cases in which the trial judge did even know that gun was used that, it made clear but for the until appeared he Judge front of Er- Guidelines, Sentencing he would im- ickson and was advised of that. posed a Second, lesser sentence. I’m going to make a finding that it was judge did not find that Dare discharged ordinary practice his people when were shotgun during the course of the of- visiting with him that he would dis- doubt, fense only by reasonable charge the weapon, the shotgun, and preponderance of the evidence. intent, that he had no in terms of the imposing Before 10-year sentence, actual discharge of weapon, of intim- made following statements: idating or threatening either of the young it men that outrageous, were at his just like his house. sons find do, man, that this grams mari- I’m going to make a specific fact finding juana, going to spend years ten that neither of the young men felt that in a prison the United they were threatened the discharge life most, States. And at very I could gun. It is true both of them were well, say, seven deal, best intimidated the brandishing and the and that outrageous. borders on But presence gun when he brought it that’s what the law is. out. you know,

And overreach, there’s an If proof the burden of is clear and con- my view, on prosecuting. It is not vincing, then I government think the has

645 firearm, the which increased actually that he to demonstrate failed was from 5 to minimum sentence to be gun the discharge of the intended indictment, proven nor charged the not drug transaction. of the part The Court fo- a doubt. beyond reasonable of by preponderance is a If evidence the Jersey, v. New Apprendi cused on Wetering evidence, de as Mr. Van the 2348, 147 L.Ed.2d 435 120 S.Ct. U.S. that out, I believe then pointed has (2000), Pennsylvania, McMillan indi- just I stated would that those facts 91 L.Ed.2d 106 S.Ct. and, mitigated be they wouldn’t cate brandishing weapon a to find that of by preponderance a consequently, of- drug-trafficking with a in connection evidence, gun find that the going I am traditionally fact that was a fense was the transac- of enhancement, not a sentencing considered tion. crime, and there- separate an element listening that is supports that thing The charged in the required not to be fore was chronicity and the tape indictment, beyond a nor found put on this transpired. way the events 7-year man- doubt because reasonable and it tape started when that stop watch brandishing minimum sentence for datory from start very short time was a the maximum was still within the firearm minutes finish, than five it was less Id. possession alone. of life for sentence about. And thing the whole came 568-69, 553-57, trans- single all a that’s what—that was 5- the effect of the not address Court did at least perspective, action from possession for sentence year maximum evidence. preponderance Sentencing Guidelines. under the a firearm to find going I’m Consequently, acknowledged that Only the dissent case. discharge this there was the maxi- limited Sentencing Guidelines even the possession, I’ve any comment mum sentence mitigate That doesn’t Id. at is, this factor. or the did not focus on this dissent how unfair made about (Thomas, J., dis- 4,n. 122 S.Ct. 2406 is 578 law or what proportionality senting). going on here. Apprendi after was decided Harris added.

Emphasis 466, 120 S.Ct. Jersey, 530 U.S. New Blakely after Application of Harris II. Apprendi, In Booker whether focused on Court findings factual would Although these jury, increased judge, found Harris v. Unit- under sufficient maxi have been above the defendant’s could ed the defendant penalty mum (2002), they longer no suffice. statute. applicable under received was convicted considered the defendant nor Harris Apprendi Neither in connection enhancement validity a firearm of a sentence Al Sentencing of 18 Guidelines. in violation offense drug-trafficking may well be 924(c)(1)(A)© following a bench and Harris though Apprendi U.S.C. claimed to if the sentence judge also law sentencing, good At trial. maximum, two firearm, brandishing the exceed guilty of Harris claim is inapposite where years under cases him 7to and sentenced en improperly 924(c)(l)(A)(ii). solely Har- that the sentence appeal, On Guidelines, Sentencing under the hanced was unconstitu- his sentence argued ris expressly Court below. The as discussed brandishing, a the fact tional because declined to consider the ruling effect its defendant’s sentence above the Sentencing would have on the federal maximum, courts must look at “the maxi- Apprendi, Guidelines. See 530 U.S. 497 mum judge may sentence a impose solely 21, 120 n. S.Ct. 2348. on the basis the of facts reflected jury verdict by or admitted the Harris, agree that under Dare’s sen- defen- ”). dant apply The Court did not the dis- tence does not violate the Constitution be- in tinction years cause his sentence of 10 Harris between facts that is still with- crime, in statutory range years of 5 of to life for elements and those that are possession alone. See 18 U.S.C. traditionally considered sentencing en- 924(c)(1)(A)®. But the reasoning of hancements. side, Harris was left to one and the focus Similarly, in United States v. to constitutionality determine the — U.S.-, 125 S.Ct. changed, Blakely v. Washing- jury found that Booker ton, 124 S.Ct. possessed grams at least 50 of cocaine with L.Ed.2d 403 distribute, intent to in violation of 21 Blakely was a direct appeal from a 90- 841(a)(1). Id. at imposed month sentence for a conviction of provided 738. That statute a minimum degree kidnaping. second Blakely pleaded years sentence of 10 prison and a maxi- guilty kidnaping to estranged his wife. mum sentence life. The facts plea, admitted standing 841(b)(1)(A)(iii). The federal Sentencing alone, supported a maximum sentence of Guidelines, however, prescribed a sentenc- Washington’s months under ing range of 210 to 262 months in prison. guidelines. judge The imposed a 90- Id. month upon a finding that Blake- ly had acted with cruelty, deliberate found, judge The preponderance sentencing enhancement. evidence, possessed that Booker an appeal, On argued the state the defen- grams additional 566 of crack cocaine. Id. dant’s 90-month Appren- sentence met the Under the Sentencing Guidelines, this di standard because it was still within the finding mandated a sentence of 360 statutory years maximum of 10 for kidnap- months to life. The imposed a sen- ing reversed, alone. Supreme Court tence of 360 months—still within the statu- holding statutory relevant maximum tory maximum of a life pos- sentence for Apprendi purposes is “the maximum session with intent to just distribute of judge may sentence a impose solely on the grams or more as jury, basis jury facts reflected well above the maximum of 262 months verdict or admitted defendant.” under the formerly-mandatory Sentencing (italics S.Ct. at 2537 original). The Guidelines. Supreme Id. The Court held Court held that since the Washington sen- that this sentence violated Booker’s Sixth tencing guidelines mandatory, were rights, Amendment and remanded the case sentencing judge could not sentence Blake- for re-sentencing under the now-advisory ly to more than 53 months holding without (Ste- Sentencing Guidelines. Id. at 746-56 a sentencing hearing obtaining and J.). vens, findings on factors, the aggravating even though the statutory maximum Courts around country have been (holding Id. grappling determine with similar questions. In Unit- whether judge-found increased the ed States v. 397 F.3d 404 in- of facts that in the determination were convicted Cir.2005),5 defendants (Apprendi) maximum attempted crease abetting an and aiding distribute, Amendment to all applying the Sixth intent with possession, cocaine, punishment” and aiding facts “essential containing mixture (Booker firearm in It has Blakely). extended abetting the crime. Amendment drug-trafficking Sixth application connection (Ap- of 5 maximum penalties a sentence provided from The statute in of a firearm “Guidelines” prendi) life for (Booker). crime. drug-trafficking if one does not connection with And even Under, 924(c)(l)(A)(i). § holdings as 18 U.S.C. characterize this group however, Guidelines, the maxi- Sentencing plainly reasoning overruling was 5 U.S.S.G. mum sentence overrule Harris. underlying them does 2K2.4(b). judge sentencing, At § Malouf, 2005 WL 1398624 States v. during used of the that one firearms found J.) 2005) (Gertner, (D.Mass. 14, June at *9 as a qualified crime the drug-trafficking omitted). (footnotes weapon, thus en- assault semiautomatic Further, years of 10 although a sentence 5 sentences from defendants’ hancing the upon finding minimum sentence is the , years. 18 U.S.C. 10 weapon discharged the that the defendant 2K2.4(b). 924(c)(1)(B)®; U.S.S.G. drug trafficking in to a during and relation the convic- appeals affirmed court of crime, finding that Dare dis- here the the sentences part, but vacated tions weapon insufficient. charged the was alia, remanded, holding, inter and under not constitutional enhancement colleagues’ my I Although appreciate Booker. from Harris until unwillingness depart Supreme explicitly overruled it is enhancement firearm-type

Although Court, and Booker limit- Blakely read 924(c)(1)(B)® is differ under cases directly the extent those ing cases to discharging from the ent enhancement For Blakely and Booker. conflict 18 Dunnigan, instance, v. in United States 924(c)(l)(A)(in) hiere, the same at issue 1111, 87, 122 L.Ed.2d 113 507 U.S. S.Ct. United States applies. See also principle sections held that the the Court Groce, 6.79, 445 682 n. Cir. requiring Sentencing 2005) to of the Guidelines pursuant (stating that sentences judge States, where enhancement sentence 536 U.S. Harris v. United (2002) perju- committed finds that .defendant Booker). ac- privilege not ry after do violate “problematic” This testify on her own behalf. cused to facing a a district court' recently, Just Never- Booker. was not involved issue that, also problem, similar theless, parties raised is- because conflict, Blakely and the cases extent sue, discussed Dunni- Booker the Court overruled Harris: Booker have concluded that: gan and holdings in Booker breadth [T]he the Guidelines Blakely to Applying Har- Blakely have overruled that relied invalidate a sentence holding would from has gone ris. The Court resulting if the an enhancement on such implicated Amendment that the Sixth L.Ed.2d 524 v. United with Harris 5. Not to be confused 122 S.Ct. U.S.-, range Blakely, was outside the author at Nevertheless,

ized verdict. (quoting Apprendi, 530 U.S. at 2348). many there are situations which the S.Ct. judge might district find the en prosecution Because the found the warranted, yet hancement still sen did prove discharged the firearm range within the tence defendant evidence, by clear and convincing he neces- jury. post, authorized See sarily prosecution found the did not prove (STEVENS, J., dissenting 774-776. the firearm rea- Thus, part). while the reach of Dunni sonable doubt. “The intermediate stan- limited, gan may be we need not over dard convincing of clear and evidence lies it. rule preponderance between a of the evidence princi at 753. The same proof beyond a reasonable doubt.” ple may holds true here. While Harris not Kenyeres 1301, 1305, Ashcroft, entirety, by be overruled its it is limited (U.S.2003) 155 L.Ed.2d 301

Booker, and Dare’s sentence exceeds the (citation quotation and internal marks Booker limit. also See United States v. omitted). Gordon, Cir. It judge understandable 1988); Lamar, Utah-Nevada Co. v. De likely found it more than not that Dare (9th Cir.1904) (“[T]he F. Supreme discharged shotgun into the air an since, Court of the United States has attempt to intimidate his visitors into not before, well as laid down the rules reporting him to the authorities. But it is and, guided; which we must be there is just as understandable judge did them, a conflict between the later decisions not find this clear and convincing action.”). govern must and control our evidence, let beyond alone a reasonable Findings by Preponderance III. doubt, given that highly Dare was intoxi- the Evidence cated, and peculiar had the custom of judge The trial found that Dare dis- showing off firing shotgun when charged weapon intentionally, and as fact, calling. visitors came shooting his transaction, drug only by shotgun was such a non-event Dare that preponderance of the evidence. The trial he didn’t even happened remember it until judge specifically held that if the standard Magistrate told him. (a were convincing clear and lower stan- Accordingly, we should remand this case doubt) beyond dard than a reasonable he the trial with instructions to im- would not find Dare so pose a new under the now-discre- firearm. Blakely and Booker teach us not tionary Sentencing Guidelines solely based defendant is entitled under the on his finding possessed that Dare Sixth Amendment to have a find all firearm, a crime entails facts which enhance his sentence above the minimum sentence of five not ten. statutory maximum, but also that the de- 924(c)(1)(A)®. fendant is entitled to have those facts beyond a reasonable doubt

Other than prior conviction, the fact of a

any fact that penalty increases the for a

crime prescribed

maximum must be submitted to jury, proved beyond a reasonable doubt.

Case Details

Case Name: United States v. Steven Douglas Dare

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 23, 2005

Citation: 425 F.3d 634

Docket Number: 04-30202

Court Abbreviation: 9th Cir.