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United States v. Sutherland

United States District Court, E.D. Michigan, Southern Division

October 16, 2017




         Before the court are competing memoranda submitted by counsel regarding general sentencing issues. The Government filed an opening brief directed at sentencing issues in common for the following Defendants in this matter, all of whom proceeded to trial and were found guilty on various counts: Patrick Michael McKeoun, Jeff Garvin Smith, Paul Anthony Darrah, Cary Dale Vandiver, Vincent John Witort, David Randy Drozdowski, Victor Carlos Castano, Michael Kenneth Rich (collectively, the "Trial Defendants").

         All eight Trial Defendants filed a joint response, and the Government filed a reply. This order resolves those issues raised in the Governments brief and directs the next stage of briefing.


         Trial Defendants first object to the court's attempt to streamline these proceedings through the mechanism of resolving common sentencing issues before conducting individualized sentencing proceedings. The court rejects this objection as form over substance. While it is true that the court must make individualized findings as to each Defendant for sentencing purposes, this does not prevent the court from attempting to narrow the sentencing issues by resolving general issues up front. A preliminary review of PSIR objections made clear that multiple Defendants were making substantially similar objections to common issues. Various Defendants, for example, objected to the standard of review, suggesting to the court that it could not engage in fact-finding by a preponderance of the evidence in sentencing, even for matters which do not increase the statutory maximum or the mandatory minimum, but for, essentially, any fact which had the effect of raising the advisory guideline range. Multiple Defendants also objected to the manner in which relevant conduct was attributed, inviting the court to conduct mini-trials which would largely reproduce the evidence already received at trial, but under the theory that evidence must be taken at sentencing separately in order to constitute "individualized findings".

         The court disagrees with Defendants re-casting of the court's obligations. While both trials included some evidence which was largely directed at individual Defendants, and while the jury convicted the Defendants on an individual basis, the court need not ignore the obvious fact that in both trials substantial evidence was adduced which was relevant to all of the Trial Defendants, particularly with respect to the mechanics, operation, initiation, and operation of the club membership of Devils Diciples Motorcycle Club (DDMC) and how the DDMC, in the particular situation of these convicted Defendants, engaged in a RICO conspiracy.

         The trials also included substantial evidence of the knowledge and understanding of each of the Trial Defendants of the goals, methods, and operation of the RICO conspiracy. Remaining cognizant of the court's duty to make individualized findings for purposes of sentencing, the court also recognizes the vast amount of evidence detailing the full knowledge and consent of the Trial Defendants to engage in the RICO conspiracy, as reflected by their guilty verdicts, and will rely, in part, on that general evidence in making its necessary sentencing findings. In order to make those findings, the court must first, of course, determine the relevant standard of review. There is nothing improper in reaching that conclusion of law with respect to all Trial Defendants, each of whom has had notice and opportunity to respond.


         The Government firsts asks the court to declare the burden of proof when establishing relevant conduct for racketeering activities under Count One, the RICO Conspiracy charges. Though Trial Defendants urge the court to adopt their view of a heightened standard, there is no serious dispute that the burden of proof applicable for sentencing issues is preponderance of the evidence, and the court will therefore adopt this standard.

         In the preliminary objections to various Presentence Investigation Reports (PSIRs), some of the Trial Defendants suggested that their sentence could not be increased based on racketeering activities without a specific jury finding of guilty beyond a reasonable doubt as to each predicate act. Defendants cited Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) for the general proposition that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." In their Joint Memorandum of Law, Trial Defendants concede that "[c]urrently the weight of authority is that a jury verdict is not required to score relevant conduct that does not raise the statutory maximum or impose a mandatory minimum sentence." (Pg. ID 29278.) Trial Defendants continue, saying “[r]ather, relevant conduct can be proved for sentencing by the prosecutor by a preponderance of the evidence; the prosecutor is required to prove the relevant conduct at sentencing regardless of the jury's verdict. (Pg. ID 29278.)

         Despite this concession, Defendants set forth two arguments in their brief. First, even after acknowledging that the current state of law does not require jury findings except for facts that increase the statutory maximum sentence (Apprendi) or the mandatory minimum sentence (Alleyne v. United States, __ U.S. ___, 133 S.Ct. 2151 (2013)), Defendants argue that the “spirit” of the Fifth and Sixth Amendment demand more. According to the Defendants, in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court correctly recognized that the calculation of federal sentencing guidelines violated the Constitution, but incorrectly cured that violation by making the guidelines remedial. Defendants assert that each and every fact that has the effect of raising the guideline range should be found by a jury beyond a reasonable doubt. Defendants contend:

Of course, the worn, and logically flawed, refrain from an AUSA, who refuses to allow a jury to determine the aggravating fact perhaps for strategic reasons or a belief that the greater fact [15 Kg] could not be proven to a jury beyond a reasonable doubt, is that [Booker] resolved all objection to any sentence that is below the statutory maximum by making the guidelines advisory. Booker did hold that judicial fact-finding that increased a statutorily mandated guidelines sentence violated the Sixth Amendment, as part of the remedial opinion, and that advisory guidelines would cure this defect. However, the reasoning upon which the Booker holding is based is flawed and has not cured the defect.

(Pg. ID 1917.) Defendants continue that the “trend of authority” is to recognize that Booker was misguided and to call for greater protections-and higher evidentiary standards-under the Fifth and Sixth Amendments. As Defendants describe it, the effect of the guidelines calculation is a "presumptively reasonable range that, though cast as "advisory," are effectively binding on the court and thus violates Apprendi and Alleyne. The court disagrees. The court also finds the argument irrelevant. Though a “trend” may be an academically interesting law review note, the court is not bound by either such a “trend of authority, or by the musings in dicta, dissents, or concurrences, even of the Supreme Court. The court is bound by the holdings of the United States Supreme Court. The current state of the law is that the sentencing guidelines calculations are advisory, and the court treats them as such, under the clear guidance of the Supreme Court in Booker.

         Next Defendants argue that, even when there is a special finding by jury of relevant conduct, the court must independently find that relevant conduct by a preponderance of the evidence. Defendants suggest that the jury's special finding might not be supported by sufficient evidence, thus the court cannot rely on it. Defendants invite the court into a hypothetical sentencing world. Though the court has not yet ruled on the ...

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