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United States v. Chandler

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

January 30, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
THEODORE CHANDLER D-1, Defendant.

          OPINION AND ORDER DENYING GOVERNMENT'S REQUEST TO SENTENCE DEFENDANT BASED ON CROSS-REFERENCE TO FIRST-DEGREE MURDER GUIDELINE

          Nancy G. Edmunds United States District Judge

I. BACKGROUND

         On November 8, 2016, Defendant Theodore Chandler pled guilty to conspiracy to distribute cocaine (Count 1) and conspiracy to launder monetary instruments (Count 2). The Government now seeks to enhance Defendant's sentence for Count 1 based on a cross-reference to the first-degree murder Guideline, U.S.S.G. § 2A1.1, for Defendant's alleged role in the murder of Dynasty Myles - a crime for which Defendant has been neither charged nor convicted. The Court held a sentencing hearing and heard testimony regarding the murder on October 5 and 23, 2017.

         Many courts, including courts in the Sixth Circuit, allow sentencing enhancements based upon unconvicted, or even acquitted, conduct. See, e.g., United States v. White, 551 F.3d 381, 382 (6th Cir. 2008) (en banc). The practice has survived in federal courts despite a variety of constitutional challenges, and despite the Supreme Court's pronouncement that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." United States v. Booker, 543 U.S. 220, 244 (2005) (Stevens, J.).

         While sentencing based upon unconvicted conduct is broadly permissible, in this case, the Court will DENY the Government's requested enhancement for the reasons discussed below. It is questionable whether the Government proved by a preponderance of the evidence that Defendant is guilty of first-degree murder. However, even if the Court were to find that the Government did prove by a preponderance of the evidence that Defendant is guilty of first-degree murder, the requested enhancement is not appropriate because the murder is unrelated to the count of conviction. Courts use unconvicted conduct to contextualize and assess the severity of the offense of conviction. However, the Sixth Circuit vacates sentencing based on facts unrelated to the offense of conviction. See, e.g., United States v. Cross, 121 F.3d 234, 238-39 (6th Cir. 1997). The reason for this is clear: To allow sentencing enhancements in such situations would enable the Government to obtain punishment for any number of unrelated crimes, based upon a bench trial rather than a jury trial, and effectively allow for an end-run around the Sixth Amendment right to a jury trial.

         II. ANALYSIS

         A. Sentencing and the Guidelines

         Today, as has been true historically, once a federal court has convicted a defendant of one crime, that conviction allows the court to sentence him for any number of other offenses that were never charged, or that were charged but resulted in acquittal. Prior to the 1980s, this practice occurred in trial courts across the country with little scrutiny, and there was no appellate review to regulate the outcomes. However, with the arrival of the U.S. Sentencing Guidelines in the 1980s, it became far more obvious that an individual convicted of one offense might face a sentence enhanced by a separate offense, and that the enhancement could increase the individual's sentence by a significant amount. See Gerald Leonard & Christine Dieter, Punishment Without Conviction: Controlling the Use of Unconvicted Conduct in Federal Sentencing, 17 Berkeley J. Crim. L. 260, 261 (2012).

         Beginning in the 1990s, several constitutional legal challenges were brought against the practice of sentencing based on unconvicted or acquitted conduct, both in federal and state courts. These challenges were based on the Double Jeopardy and Due Process clauses of the Fifth Amendment, as well as the Sixth Amendment right to a jury trial. The Supreme Court heard a number of these constitutional challenges, and a brief overview of the case law follows.

         In 1997, the Supreme Court ruled for the first time in United States v. Watts, 519 U.S. 148 (1997), that the Double Jeopardy Clause of the Fifth Amendment does not bar a sentencing court from considering conduct of which the defendant has been acquitted, so long as that conduct has been proved by a preponderance of the evidence. Three years later, the Court limited the effect of judicial fact-finding at sentencing in Apprendi v. New Jersey, which held that the Sixth Amendment requires that any facts that increase a statutory maximum penalty be considered elements of the offense (regardless of how they are denominated in a statute), and be submitted to a jury and proved beyond a reasonable doubt, or be admitted by the defendant. 530 U.S. 466, 490 (2000).

         The Supreme Court later applied Apprendi to the Sentencing Guidelines in United States v. Booker, 543 U.S. 220 (2005), a case that resulted in two majority opinions.[1] The first majority opinion - known as the "constitutional holding"- held that since the Guidelines were mandatory, judge-found facts used to enhance sentences effectively made each "sentencing factor" an element of an offense, which in light of Apprendi, had to be found by a jury or admitted by the defendant. Id. at 244 (Stevens, J.). Judge-found facts under the mandatory Guidelines, in other words, violated the Sixth Amendment.[2] The second majority opinion - known as the "remedial holding"- held that since the Guidelines violated the Sixth Amendment due to their mandatory nature, the Guidelines would thereafter be considered merely "advisory." Id. at 245 (Breyer, J.).

         Most courts went on to interpret Booker's “remedial holding” as entirely mooting the constitutional problems identified in the “constitutional holding.” According to these courts, since the Guidelines were no longer mandatory, judge-found facts did not run afoul of the Fifth or Sixth Amendments so long as they satisfied a preponderance of the evidence standard. See, e.g., White, 551 F.3d at 383-85 (finding no Sixth Amendment violation where the sentence enhancement based on acquitted conduct satisfied the preponderance of the evidence standard - relying on Watts, which remained good law post Booker); United States v. Fisher, 502 F.3d 293, 305-06 (3d Cir. 2007); United States v. Villareal-Amarillas, 562 F.3d 892, 897-98 (8th Cir. 2009); see also United States v. Staten, 466 F.3d 708, 720 (9th Cir. 2006) (applying higher “clear and convincing evidence” standard where a sentencing factor had an extremely disproportionate effect on the ultimate sentence, but noting that the preponderance of the evidence standard remains the general baseline to resolve factual disputes at sentencing post Booker).

         Courts' willingness to dispense with Booker's “constitutional holding” and return to Watts (and even pre-Guidelines sentencing case law) is based on what some deem a fiction, i.e., that the Guidelines are now “merely advisory, ” just one of the many factors that judges take into account when sentencing. In reality - and as various jurists have conceded openly - the Guidelines remain very important.[3] Nevertheless, with respect to judicial fact-finding at sentencing, federal courts are, more or less, back to where they were pre Booker:

[T]he bottom line, at least as a descriptive matter, is that the Guidelines determine the final sentence in most cases. And notwithstanding the Booker constitutional opinion, many key facts used to calculate the sentence are still being determined by a judge under a preponderance of the evidence standard, not by a jury beyond a reasonable doubt. The oddity of all this is perhaps best highlighted by the fact that courts are still using acquitted conduct to increase sentences beyond what the defendant otherwise could have received - notwithstanding that five Justices in the Booker constitutional opinion stated that the Constitution requires that facts used to increase a sentence beyond what the defendant otherwise could have received be proved to a jury beyond a reasonable doubt. In short, we appear to be back almost where we were pre-Booker.

United States v. Henry, 472 F.3d 910, 919-20 (D.C. Cir. 2007) (Kavanaugh, J., concurring) (emphasis in original).

         B. Limitations on Judicial Fact-Finding at Sentencing: The Relatedness Principle

         While judicial fact-finding at sentencing remains widely accepted post Booker, limitations on the practice should - and do - exist. Most significant is the requirement that federal sentences punish defendants only for convicted offenses (not for unrelated, unconvicted conduct), and that facts found by the sentencing judge be used only insofar as they contextualize the offense of conviction. This limitation - referred to as the “relatedness principle”- has been explicitly endorsed as a rule by the Tenth Circuit and operates sub silentio in most courts.

         The relatedness principle emanates from, among other sources, the Sentencing Reform Act of 1984 (“SRA”) and the Sentencing Guidelines themselves. The language of the SRA makes clear that sentences under federal law should reflect the nature and seriousness of the crime of conviction, not unrelated conduct. Specifically, the statute instructs sentencing courts to consider “the nature and circumstances of the offense . . . .” 18 U.S.C. § 3553(a)(1) (emphasis added). It also states that a sentence should be sufficient, but no greater than necessary, “to reflect the seriousness of the offense . . . .'' Id. § 3553(a)(2)(A) (emphasis added).

         The Sentencing Guidelines, which are administrative rules promulgated to carry out the SRA, likewise tether sentencing to the nature and seriousness of the crime of conviction, even where unconvicted conduct may be considered. According to the “relevant conduct” Guideline - a cornerstone ...


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