Rehearing and Rehearing En Banc Denied December 10, 1990.
Rehearing and Rehearing En Banc Denied December 18, 1990.
FLAUM, Circuit Judge.
Harold Ebbole was sentenced to seven years and eight months in federal prison after pleading guilty to distributing a gram of cocaine to an undercover police officer. Ebbole's stiff — some, including the trial judge, would say draconian — sentence resulted from application of § 1B1.3(a)(2) of the Sentencing Guidelines, which requires courts to increase a defendant's base offense level if it finds that during the "same course of conduct" the defendant possessed additional quantities of the drug, regardless of whether the defendant was convicted of offenses relating to those drugs. United States v. White, 888 F.2d 490, 497 (7th Cir.1989). Ebbole's presentence report cited evidence that Ebbole purchased 1.7 kilograms of cocaine within a 3 month period encompassing the sale to the undercover agent. The Probation Office used this quantity to calculate Ebbole's base offense level, with significant effect. Had the report considered only the drugs Ebbole pleaded guilty to distributing, his base offense level would have been 14 and
We have observed that the unfairness of sentencing on the basis of offenses for which a defendant has not been charged or convicted is "self-evident." United States v. Johnson, 658 F.2d 1176, 1179 (7th Cir.1981). The Supreme Court, however, has long held that this practice does not violate due process. Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) (upholding sentence based in part on evidence, not introduced at trial, that defendant committed some thirty burglaries for which he had not been tried or convicted); United States v. Grayson, 438 U.S. 41, 49, 98 S.Ct. 2610, 2615, 57 L.Ed.2d 582 (1978) (reaffirming Williams). Ebbole does not, however, contest the trial court's discretion to increase a sentence on the basis of evidence of related, but uncharged, drug activity. Citing United States v. Davis, 715 F.Supp. 1473 (C.D.Cal.1989), Ebbole maintains that the Guidelines deprive him of due process because they require judges to impose a fixed penalty on such activity. Ebbole argues that due process requires that judges have the discretion to discount penalties imposed for uncharged conduct because the prosecution need establish such acts by only a preponderance of the evidence presented for sentencing purposes. See McMillan v. Pennsylvania, 477 U.S. 79, 91, 106 S.Ct. 2411, 2419, 91 L.Ed.2d 67 (1986) (preponderance standard for sentencing satisfies due process); White, 888 F.2d at 499 ("The Guidelines' standard for resolving disputes is a preponderance of the evidence, not reasonable doubt."); see also U.S.S.G. § 6A1.3 (court may consider all relevant information that has "sufficient indicia of reliability to support its probable accuracy"). The Guidelines violate due process, he maintains, because they deny judges the discretion to assign weight to evidence of uncharged misconduct based on the degree of proof by which the misconduct was established.
We adverted to this argument in White, where we considered the proper interpretation of § 1B1.3. We held there that "when the Guidelines provide tables that cumulate the amount sold or stolen, any acts that `were part of the same course of conduct or common scheme or plan as the offense of conviction' should be included in the computation of the amount on which the offense level depends, whether or not the defendant was convicted of selling or stealing these additional amounts." Id. at 497.
Although we raised the question in White, we failed to acknowledge that McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), resolves the issue. In McMillan, the Supreme Court upheld a Pennsylvania statute providing a five-year mandatory minimum sentence for certain felonies committed with a weapon. The defendant asserted that the statute violated due process by requiring punishment for conduct proved only by a preponderance of the evidence, rather than beyond a reasonable doubt. Rejecting that argument, the Court stated that it had "difficulty fathoming why the due process calculus would change simply because the legislature has seen fit to provide sentencing courts with additional guidance." Id. at 92, 106 S.Ct. at 2419. The district court in Davis sought to distinguish the statute at issue in McMillan because "the firearm determination is never specifically segregated from other elements of sentencing discretion for purposes of establishing a fixed or `add-on' sentence." 715 F.Supp. at 1478 n. 19. It is clear, however, that the McMillan court viewed the Pennsylvania statute as imposing a fixed penalty incurred specifically for possessing a firearm during commission of the enumerated felonies. The Court explained that Pennsylvania "simply took one factor that has always been considered by sentencing courts to bear on punishment — the instrumentality used in committing a violent felony — and dictated the precise weight to be given that factor...." Id. 477 U.S. at 89-90, 106 S.Ct. at 2417-18 (emphasis added). In United States v. Ross, 905 F.2d 1050, 1053-54 (7th Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 172, 112 L.Ed.2d 136 (1990), we therefore held that McMillan forecloses the claim that depriving judges of discretion to assign weight to sentencing factors according to the strength of the proof of those factors violates due process.
In United States v. Pinto, 875 F.2d 143 (7th Cir.1989), we also rejected a challenge to the guidelines on the ground that they strip judges of sentencing discretion, albeit in a slightly different fashion. Pinto challenged the Guidelines on the ground that they deprived judges of the discretion to impose individualized sentences; his challenge focused on the lack of judicial discretion to determine which sentencing factors to consider in a single case, rather than on the lack of discretion to accord weight to a factor in proportion to the quality of the evidence supporting it, as Ebbole contends. This is a distinction without a difference, however — at least without a difference that implicates the Constitution. If — as Pinto held — Congress may "standardize the process of sentencing, in the sense that every judge must use the same offense and offender characteristics," id. at 144, and if — as Williams held — defendants may be sentenced on the basis of crimes for which they have not been convicted, it follows that Congress may impose a uniform penalty when there is some threshold of evidence that a defendant committed other crimes. Otherwise, judges could simply disregard factors they believed to be irrelevant by assigning them zero weight. "To reduce disparity in sentencing means telling some judges not to take into account things they would prefer to consider, or to weigh things differently than they think best." Pinto, 875 F.2d at 144 (emphasis in
But aren't facts that increase the Guideline range applicable to a defendant the functional equivalents of statutory elements of the offense, which, see In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), must be proved beyond a reasonable doubt? After all, "[a] state may define crime directly (through substantive elements of the offense) or indirectly (through criteria labeled `sentencing' standards but substantive in operation)." Jones v. Thieret, 846 F.2d 457, 462 (7th Cir.1988). Congress established the Sentencing Commission in order to, inter alia, "avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct...." 28 U.S.C. § 991(b)(1)(B) (emphasis added). Toward this end, Congress authorized the Commission, "for each category of offense involving each category of defendant, [to] establish a sentencing range that is consistent with all pertinent provisions of title 18, United States Code." 28 U.S.C. § 994(b)(1). Congress, so the argument goes, therefore acknowledged the reality that defendants convicted of the same statutory offense have not necessarily committed "similar criminal conduct," and by authorizing the Commission to develop discrete sentencing ranges, effectively delegated to the Commission the power to adapt the federal criminal code to reflect this reality. The sentencing ranges differentiate between degrees of criminality both between and within statutes; haven't, then, defendants sentenced to different ranges within the Guidelines after conviction for the same offense committed materially different offenses?
There is authority for the proposition that when legislatures identify facts that materially increase criminal culpability, those facts must be proved beyond a reasonable doubt. In United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), the Court invalidated a defendant's sentence that had been founded, in large part, upon two prior convictions in cases where the defendant was not represented by counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), rendered such convictions unconstitutional, see Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41 (1963), and in Tucker the Court emphasized that "[t]o permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense ... is to erode the principle of that case." 404 U.S. at 449, 92 S.Ct. at 593 (quoting Burgett v. Texas, 389 U.S. 109, 114, 88 S.Ct. 258, 261, 19 L.Ed.2d 319 (1967)) (emphasis added). Tucker stands for the proposition that defendants may not be sentenced on the basis of criminal conduct if the proof of that conduct is constitutionally infirm. By Tucker's rationale, in order to factor into a sentence criminal conduct other than that for which a defendant has been charged, the government must comply with all constitutional prerequisites to establishing criminal conduct, including Winship's requirement that the state prove the conduct beyond a reasonable doubt.
The Court's decision in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), supports this view. In Mullaney, the Court held unconstitutional a state law that placed the burden on the defendant to prove that "heat of passion" drove him to kill in order to be sentenced for manslaughter rather than for murder, noting that:
Id. at 697-98, 95 S.Ct. at 1888-89 (emphasis added). Mullaney clearly advanced the proposition that facts upon which criminal culpability — as evidenced by the degree of punishment received — turns must be proved beyond a reasonable doubt.
The Court, however, quickly abandoned that position in Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). Disclaiming Mullaney's language as dicta, the Patterson court expressly disavowed the notion that the prosecution must "prove beyond a reasonable doubt every fact, the existence or nonexistence of which it is willing to recognize as an exculpatory or mitigating circumstance affecting the degree of culpability or the severity of the punishment." 432 U.S. at 207, 97 S.Ct. at 2325; see also id. at 214-15, 97 S.Ct. at 2329-30. Later, in McMillan, the Court distinguished Mullaney, explaining that the state's burden shifting in that case exposed defendants to "a differential in sentencing ranging from a nominal fine to a mandatory life sentence." McMillan, 477 U.S. at 87, 106 S.Ct. at 2417 (quoting Mullaney, 421 U.S. at 700, 95 S.Ct. at 1890), whereas the lesser burden of proof permitted by the Pennsylvania weapon provision imposed only a mandatory minimum sentence within the statutorily prescribed range of permissible sentences. Id. 477 U.S. at 87-88, 106 S.Ct. at 2416-17. Since the Pennsylvania statute "operate[d] solely to limit the sentencing court's discretion in selecting a penalty within the range already available to it," the Court concluded that its operation did not deny due process to defendants sentenced under it. Adhering to McMillan, we have previously rejected the view that the Guidelines violate due process by making quantity a de facto element of drug offenses. See United States v. Reynolds, 900 F.2d 1000, 1002-04 (7th Cir.1990).
The district court in Davis maintained that, "by distinguishing without overruling Mullaney and Winship, and acknowledging that there is no `bright' line between those two cases and it, McMillan lends support to the proposition that in the extreme case, when application of sentencing factors may overwhelm the sentence that would otherwise be imposed on the basis of proven elements, the statute cannot be constitutional." 715 F.Supp. at 1478. But the sentencing range faced by the defendant in Mullaney was also "within the statutorily prescribed range of permissible sentences," so McMillan's determination to distinguish away Mullaney teaches more than does its proffered rationale.
We read McMillan differently. After McMillan, the relevant constitutional inquiry is not whether the degree of punishment is tied to a specific factor; rather, the issue turns on whether the government may properly criminalize conduct without including a particular factor as an element of the crime. See Martin v. Ohio, 480 U.S. 228, 233, 107 S.Ct. 1098, 1101, 94 L.Ed.2d 267 (1987) ("The State did not exceed its authority in defining the crime of murder as purposely causing the death of another with prior calculation or design [without reference to whether the killing was done in self-defense]."). The Court has declined to use the due process clause to substantively shape criminal laws, opting instead to defer to legislative definitions of crime. Since Mullaney, the court has consistently maintained that "the state legislature's definition of the elements of the offense is usually dispositive: `[T]he Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged.'" McMillan, 477 U.S. at 85, 106 S.Ct. at 2415 (1986) (quoting Patterson, 432 U.S. at 210, 97 S.Ct. at 2327 (emphasis added in McMillan)). Although McMillan acknowledged that "there are constitutional limits to the State's power" to define the elements of a crime, it also observed that allocations of burdens of proof are "not subject to proscription under the Due Process Clause unless [they] offend some principle of justice so rooted in the traditions
History mitigates (somewhat) the arbitrary nature of this distinction. The Court observed in Williams, that "both before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be impose within limits fixed by law." 337 U.S. at 246, 69 S.Ct. at 1082. We also noted, in White and Pinto, that judges have long had license to base sentences on conduct for which defendants have not been convicted. In light of this historical practice, we cannot say that requiring courts to consider facts not proved beyond a reasonable doubt, and assigning fixed weights to them, is at odds with "the traditions and conscience of our people," even though "innocent until proven guilty" ranks among our most fundamental values.
If the federal government (as well as the states) may constitutionally criminalize drug trafficking without regard to the quantity of drugs involved, and if the government may also constitutionally prescribe "wide limits for maximum and minimum sentences," Williams, 337 U.S. at 251, 69 S.Ct. at 1085,
For similar reasons, we cannot say that when a court sentences a defendant under the Guidelines on the basis of criminal activity for which he was not convicted, it imposes a penalty outside "the range already available to it." McMillan, 477 U.S. at 88, 106 S.Ct. at 2417. The Guideline ranges must comply with the provisions of existing federal criminal law, see 28 U.S.C. § 994(a); none of the ranges may exceed the statutory sentencing ranges provided for the offense of conviction. Moreover, the Guideline ranges cannot be viewed in isolation from the provisions — like § 1B1.3 — that control their application. Section 1B1.3 expressly permits courts to sentence defendants to a higher range on
It has been argued also that the Sentencing Commission exceeded its statutory authority by adopting § 1B1.3. See United States v. Miller, 910 F.2d 1321, 1329-30 (6th Cir.1990) (Merritt, C.J., dissenting). Chief Judge Merritt suggests that Congress circumscribed the Commission's power to impose "incremental" penalties to defendants who are "convicted of multiple offenses committed in the same course of conduct." 28 U.S.C. § 994(l) (emphasis added).
We must conclude, therefore, that application of § 1B1.3 did not deny defendant Ebbole due process of law. Nevertheless, we feel compelled to observe that this provision of the Guidelines "obviously invite[s] the prosecutor to indict for less serious offenses which are easy to prove and then expand them in the probation office." Miller, 910 F.2d at 1332 (Merritt, C.J., dissenting). In Ebbole's case, the United States Attorney's office appears to have accepted this dubious invitation. Since McMillan precludes us from invoking the Constitution to condemn this practice, we can only seek (again — see United States v. Fischer, 905 F.2d 140, 141-42 (7th Cir.1990) (per curiam)) to impress upon prosecutors that such tactics will inevitably prove counterproductive, reducing incentives for defendants to cooperate with the government, and ultimately impairing, rather than improving,