United States v. Grubbs

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 07-5040
JIMMIE VANCE GRUBBS,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert J. Conrad, Jr., Chief District Judge.
(3:06-cr-00048-RJC)

Argued: September 24, 2009

Decided: November 6, 2009

Before WILKINSON, SHEDD, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge Agee wrote the opin-
ion, in which Judge Wilkinson and Judge Shedd joined.

COUNSEL

ARGUED: Matthew Segal, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Asheville, North
Carolina, for Appellant. Adam Christopher Morris, OFFICE
OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee. ON BRIEF: Claire J. Rauscher, Exec-
2 UNITED STATES v. GRUBBS
utive Director, FEDERAL DEFENDERS OF WESTERN
NORTH CAROLINA, INC., Asheville, North Carolina, for
Appellant. Gretchen C. F. Shappert, United States Attorney,
Charlotte, North Carolina, for Appellee.

OPINION

AGEE, Circuit Judge:

Jimmie Vance Grubbs pled guilty to six counts of know-
ingly transporting someone under the age of eighteen in inter-
state commerce with intent to engage in a sexual activity, in
violation of 18 U.S.C. § 2423(a), and six counts of traveling
in interstate commerce for the purpose of engaging in a sexual
act with a person under the age of eighteen, in violation of 18
U.S.C. § 2423(b). The district court sentenced Grubbs to 240
months of imprisonment and a life term of supervised release.
On appeal, Grubbs does not contest his convictions, but con-
tends the district court erred in imposing his sentence for three
reasons: (1) the district court violated his Sixth Amendment
rights by considering uncharged conduct when deciding an
appropriate sentence; (2) the district court violated his Fifth
Amendment rights by failing to require the Government to
prove uncharged conduct by more than a preponderance of
the evidence standard; and (3) the district court committed
procedural errors in calculating his United States Sentencing
Guidelines ("Guidelines") range. For the reasons that follow,
we disagree with Grubbs and affirm the judgment of the dis-
trict court.

I.

In April 2005, police began investigating Grubbs after a 14-
year-old student ("Child Victim 1" or "C.V.1") reported
Grubbs initiated inappropriate sexual contact during an out-
of-state school trip. At the time, Grubbs was a language arts
 UNITED STATES v. GRUBBS 3
teacher and coach at a public middle school in North Caro-
lina. Grubbs had worked with minors for over 30 years as a
teacher, Sunday school instructor, coach, and in Boy Scouts.
In these capacities he had, on multiple occasions, taken trips
out-of-state with a number of middle school boys under the
age of eighteen.

Child Victim 1 reported that Grubbs had developed a
friendship with him over the course of his 7th and 8th grade
years. During a school trip to Myrtle Beach, South Carolina,
in the spring of 2005, Grubbs sexually assaulted C.V.1 on
several occasions. Following an investigation into these
events Grubbs resigned his position at the middle school in
May 2005.

In December 2005, police were asked to investigate a
report of child molestation made by a 14-year old minor
("Child Victim 2" or "C.V.2"). Child Victim 2 reported that
Grubbs befriended him when Grubbs was his English teacher
in the fall of 2003. Grubbs asked C.V.2 to help him in his
classroom after school and on weekends. Grubbs initiated
hugging and French kissing, which subsequently developed to
mutual masturbation and oral sex "four to five times weekly."
During a September 2004 trip to Myrtle Beach, South Caro-
lina, Grubbs and C.V.2 engaged in oral sex "anywhere from
10 to 30 times." The following school year, Grubbs met with
C.V.2 during planning periods and they would have oral sex
in his classroom. During the course of these events, Grubbs
gave C.V.2 money and gifts, and "cut [him] a break" on his
grades. (J.A. 249.)

Following the initial investigation and Grubbs’ arrest for
these offenses, other victims came forward. The pre-sentence
report ("PSR") specifically sets forth the statements of nine
additional victims — three of whom were also still minors at
the time of sentencing. The accounts are consistent: according
to all but one of the victims, Grubbs began sexually molesting
4 UNITED STATES v. GRUBBS
them when they were young teenagers.1 Most of the victims
reported the assaults occurred regularly, on multiple occasions
over months or years. Typically, Grubbs befriended the vic-
tims’ parents, and became a "father figure" to them while
serving as their teacher, Sunday School teacher, or coach. He
took them on trips to South Carolina and elsewhere, and gave
them gifts. In some cases, he would give them better grades
than they had earned.

Grubbs was indicted on a twelve-count bill of indictment.
Counts One through Six charged Grubbs with violations of 18
U.S.C. § 2423(a), and Counts Seven through Twelve charged
Grubbs with separate violations of 18 U.S.C. § 2423(b). The
charged offenses took place between August 2002 and Janu-
ary 2006. Grubbs pled guilty, without the benefit of a written
plea agreement, to all twelve counts.

The pre-sentence report ("PSR") calculated Grubbs’
offense level for each offense, and then calculated the com-
bined offense level for all the offenses, as specified under
§ 3D1.4 of the Guidelines. Grubbs’ combined adjusted
offense level was 37, which after adjustment for acceptance
of responsibility, yielded a total offense level of 34. Grubbs
had 0 criminal history points, resulting in a criminal history
category of 1. Based on these scores, the recommended
Guidelines range for imprisonment was 151 to 188 months.2

Several witnesses testified at the sentencing hearing. For-
mer Detective Kenny Lynch, of the Huntersville, North Caro-
lina Police Department, had been an investigator on Grubbs’
1
One victim (Victim 10), now an adult, stated that he did not recall
Grubbs initiating sexual conduct with him, but that when he was 15 years
old (1996 and 1997), Grubbs discussed child pornography with him and
once "adjusted [V.10’s] clothing to make sure the pants fit well" in a man-
ner that made him uncomfortable. (J.A. 252.)
2
18 U.S.C. § 2423(a) and (b) set a minimum of 5 and maximum of 30
year term of imprisonment.
 UNITED STATES v. GRUBBS 5
case. He testified as to the accuracy of the statements in the
PSR regarding the nature of the investigation, the conduct
underlying the counts of conviction, and the additional inci-
dents and victims identified in the report. One of Grubbs’
adult victims testified as to the nature of the assaults against
him and the effect that those incidents had on him. In addi-
tion, a letter from the parents of Child Victim 2 was read into
the record, and Child Victim 2 read his victim statement let-
ter, detailing the severe emotional and psychological prob-
lems he struggled with as a result of Grubbs’ actions.

Grubbs argued against imposition of a vulnerable victim
adjustment to his offense level. After hearing the parties’
arguments, the district court found the vulnerable victim
adjustment was appropriate for the charges stemming from
Child Victims 2, 3, and 5, but not Child Victim 4.

The district court had previously expressed its concern that
the Guidelines calculation did not reflect the true nature of
Grubbs’ conduct, noting that while the Guidelines range was
calculated as a result of the specific counts in the indictment,
which could reflect "a one act occurrence," the evidence indi-
cated "that it’s a repeatingly multiple reoccurrence" and
involved more than the five victims identified in the offenses
of conviction. (J.A. 129, 134.) Grubbs objected to the district
court’s use of uncharged conduct as a basis for enhancing his
sentence.

The district court found that the evidence of uncharged
conduct was "sufficiently reliable to rely upon in this sentenc-
ing hearing" because the evidence was "credible, [and] inter-
nally consistent with the various accounts of the molestation
of multiple victims." (J.A. 160.) The district court concluded
the Guidelines range was not "sufficient to capture the magni-
tude" of Grubbs’ "predatory conduct," and that his "criminal
activity falls outside of the heartland of the guidelines." (J.A.
161-62.) Accordingly, the district court concluded "that a
6 UNITED STATES v. GRUBBS
departure and/or a variance is necessary to accomplish the
sentencing objectives of [18 U.S.C. § 3553(a)]." (J.A. 162.)

The district court further noted:

[E]ach of the young victims was subject to multiple
acts of molestation heard of while the defendant
traveled in interstate commerce for that purpose
from North Carolina to South Carolina and engaged
in acts of—numerous acts of molestation in South
Carolina but also as well in intrastate activity that is
not captured by the guideline sentence.

(J.A. 162.) The district court then recounted specific examples
involving the victims who were identified in the counts of
conviction, demonstrating repeated in-state and out-of-state
instances of sexual assault. In light of this evidence, the dis-
trict court concluded the "bulk of the criminal assaults perpe-
trated on [the five victims named in the indictment] alone . . .
are not taken into account at all by the advisory guidelines—
only about 10 percent of the actual criminal conduct was
needed to reach the guideline levels set forth [in the PSR]."
(J.A. 164.)

The district court then recounted the criminal conduct
Grubbs engaged in against victims not identified in the counts
of conviction. The court noted Grubbs’ criminal conduct "is
indicative of someone who has engaged in his conduct relent-
lessly and heinously over a long period of time" and that
Grubbs’ criminal history category of 1 substantially underre-
presented the seriousness of Grubbs’ past conduct. (J.A. 167.)

The district court also observed that Grubbs persisted in
molesting Child Victim 4 even after he had resigned from
teaching due to allegations of abuse. It noted the "need to pro-
tect the public from further crimes of the defendant" was a
goal not adequately captured in the guidelines range. (J.A.
167.)
 UNITED STATES v. GRUBBS 7
The district court imposed two upward departures. First, it
adjusted Grubbs’ criminal history category upward two levels.
The court noted that in its "experience . . . a defendant with
a criminal pattern like this is more analogic [sic] to an
offender criminal history 6, and the [c]ourt will use a criminal
history category 3 as the conservative measure of the criminal
conduct that is not adequately captured by the advisory guide-
lines." (J.A. 169.) Next, the district court applied a one-level
upward departure to Grubbs’ offense level. It did so because
"the offense level failed to capture the vast majority of the
defendant’s criminal behavior," and "[g]iven the multiple
account grouping guideline [provisions], any additional vic-
tims or criminal acts would not affect the guideline range."
(J.A. 169.) It noted that the modest extent of each departure
was an "act of restraint" on its part. (J.A. 170.)

Under the adjusted Guidelines calculation, using an offense
level of 35, and a criminal history category of 3, Grubbs’ sen-
tencing range was 210 to 262 months’ imprisonment. The dis-
trict court then analyzed the § 3553(a) factors in light of
Grubbs’ conduct, and sentenced Grubbs to 240 months’
imprisonment.

Grubbs noted a timely appeal. We have jurisdiction under
28 U.S.C. § 1291 (2000).

II.

A.

Grubbs first contends that his Sixth Amendment rights
were violated because the district court relied on uncharged
conduct to increase his sentence above that determined under
the initial Guidelines calculation. Grubbs asserts that based
solely on his twelve counts of conviction, his sentence of 240
months would be unreasonable. He maintains that a sentence
of this length can only be considered reasonable by relying on
the district court’s conclusion that Grubbs had committed
8 UNITED STATES v. GRUBBS
additional offenses for which he had not been convicted. Cit-
ing United States v. Booker, 543 U.S. 220 (2005), Grubbs rea-
sons that the substantial increase in his sentence due to judge-
found facts on uncharged conduct violates the Sixth Amend-
ment’s jury trial guarantee.

Because Grubbs preserved his Sixth Amendment challenge
by raising this issue in the district court, this court’s review
is de novo. See United States v. Hall, 551 F.3d 257, 266 (4th
Cir. 2009).

Grubbs’ argument is nullified by clear Supreme Court and
Fourth Circuit precedent holding that a sentencing court may
consider uncharged and acquitted conduct in determining a
sentence, as long as that conduct is proven by a preponder-
ance of the evidence. See United States v. Watts, 519 U.S.
148, 157 (1997) (holding "a jury’s verdict of acquittal does
not prevent the sentencing court from considering conduct
underlying the acquitted charge, so long as that conduct has
been proven by a preponderance of the evidence"); United
States v. Jones, 31 F.3d 1304, 1316 (4th Cir. 1994) (holding
that a "defendant need not be convicted of the charges consti-
tuting relevant conduct for him still to be held accountable for
them" when a sentencing court determines the defendant’s
sentence, as long as the government "establish[es] the exis-
tence of these other incidents by a preponderance of the evi-
dence").

Booker did not change the sentencing court’s ability to con-
sider uncharged or even acquitted conduct during sentencing.
In United States v. Benkahla, 530 F.3d 300 (4th Cir. 2008),
we rejected a similar argument to that now made by Grubbs:

Sentencing judges may find facts relevant to deter-
mining a Guidelines range by a preponderance of the
evidence, so long as that Guidelines sentence is
treated as advisory and falls within the statutory
maximum authorized by the jury’s verdict. Indeed,
 UNITED STATES v. GRUBBS 9
"many individual Guidelines apply higher sentences
in the presence of special facts" and "[i]n many
cases, the sentencing judge, not the jury, will deter-
mine the existence of those facts." Rita v. United
States, 551 U.S. ___, 127 S. Ct. 2456, 2465 (2007).
That "does not violate the Sixth Amendment," how-
ever, because "[a]s far as the law is concerned, the
judge could disregard the Guidelines and apply the
same sentence . . . in the absence of the special
facts." Id. at 2465-66; see also United States v. Bat-
tle, 499 F.3d 315, 322-23 (4th Cir. 2007) ("When
applying the Guidelines in an advisory manner, the
district court can make factual findings using the
preponderance of the evidence standard."). The point
is thus that the Guidelines must be advisory, not that
judges may find no facts.

Benkahla, 530 F.3d at 312. A defendant can challenge the dis-
trict court’s factual findings as well as the extent of the dis-
trict court’s reliance on those findings as part of his appeal of
the reasonableness of the sentence imposed. However, the
court’s underlying ability to make factual findings regarding
uncharged conduct does not violate the Sixth Amendment’s
jury trial guarantee. Accordingly, the district court’s use of
uncharged conduct in determining Grubbs’ sentence did not
violate the Sixth Amendment.

B.

Grubbs next contends the district court violated his Fifth
Amendment due process rights because it failed to apply a
clear and convincing evidence standard of proof at sentenc-
ing. Primarily relying on language in the Supreme Court’s
decision in McMillan v. Pennsylvania, 477 U.S. 79 (1986),
Grubbs contends that proof by clear and convincing evidence
is the proper standard where, as here, uncharged conduct
"substantially increase[s]" the defendant’s sentence. (Appel-
lant’s Br. 31, 35.)
10 UNITED STATES v. GRUBBS
Before addressing the merits of Grubbs’ argument, we note
that our review of the record shows that Grubbs failed to raise
any argument about the standard of proof in the district court.
His arguments in the district court as to uncharged conduct
were based on the Confrontation Clause, lack of notice, and
the reliability and admissibility of the evidence during the
sentencing hearing. At no time, however, did Grubbs argue as
to the standard of proof the district court should use to find
facts that enhanced his sentence.

Because Grubbs failed to raise the issue below, we review
for plain error. United States v. Wilson, 484 F.3d 267, 279
(4th Cir. 2007). Under the plain error standard of review, the
defendant must show (1) that an error was committed; (2) that
the error was plain; and (3) that the error affected his substan-
tial rights. See United States v. Promise, 255 F.3d 150, 154
(4th Cir. 2001) (en banc). For the reasons set forth below, we
conclude there was no error, plain or otherwise.

In the landmark case In re Winship, 397 U.S. 358 (1970),
the Supreme Court established a due process right "against
conviction except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime with which he is
charged." Id. at 364. In Patterson v. New York, 432 U.S. 197
(1977), the Supreme Court clarified the Winship holding to be
that proof beyond a reasonable doubt was only required for
facts establishing the elements of the charged offense. Id. at
210-11. It was in this context that the Supreme Court consid-
ered the challenge to Pennsylvania’s mandatory sentencing
statute in McMillan.

In effect, the defendant in McMillan argued due process
required a higher standard of proof than preponderance of the
evidence because findings on mandatory sentencing factors in
his case amounted to findings on elements of the underlying
criminal offense. The Third Circuit Court of Appeals has syn-
opsized the Supreme Court’s holding as follows:
 UNITED STATES v. GRUBBS 11
After noting that it previously had "rejected the
claim that whenever a State links the severity of pun-
ishment to the presence or absence of an identified
fact the State must prove that fact beyond a reason-
able doubt," the Supreme Court held that Pennsylva-
nia could treat possession of a firearm as a
sentencing factor. The Court then held it constitu-
tional for a judge to find such sentencing factors by
a preponderance of the evidence — and not by clear
and convincing evidence, as the petitioners had
argued — explaining that "[w]e have some difficulty
fathoming why the due process calculus would
change simply because the legislature has seen fit to
provide sentencing courts with additional guidance."

United States v. Fisher, 502 F.3d 293, 299-300 (3d Cir. 2007)
(quoting McMillan, 477 U.S. at 84, 91, and 92) (internal cita-
tions omitted).

In dicta, however, the Supreme Court then observed that a
case could theoretically arise where a reasonable doubt stan-
dard would be appropriate if a sentencing factor were, in real-
ity, a necessary element of the crime charged. McMillan, 477
U.S. at 86-88. In such a case, a finding of facts at sentencing
by a preponderance of the evidence could be "a tail which
wags the dog of the substantive offense." Id. at 88. However,
the Supreme Court gave no example of what would constitute
a circumstance necessitating a standard other than a prepon-
derance of the evidence.

In United States v. Watts, 519 U.S. 148 (1997), the
Supreme Court acknowledged the "McMillan exception," but
reiterated that the preponderance of the evidence standard
"generally satisfies due process." Id. at 156-57; see also id. at
151-57 (discussing the reasons for different standards of proof
for facts found at trial and sentencing). Our circuit, among
others, had also acknowledged the McMillan exception, but
noted, "[p]roof by a preponderance of evidence is sufficient
12 UNITED STATES v. GRUBBS
[to enhance a sentence using uncharged conduct] as long as
the enhancement is not a tail that wags the dog of the substan-
tive offense."3 See United States v. Montgomery, 262 F.3d
233, 249 (4th Cir. 2001) (internal quotation marks and cita-
tion omitted).

Whatever theoretical validity may have attached to the
McMillan exception to a preponderance of the evidence sen-
tencing standard, the Supreme Court’s decision in Booker and
subsequent cases applying Booker have nullified its viability.
We find the well-reasoned analysis of the Court of Appeals
for the Third Circuit in United States v. Fisher, 502 F.3d 293
(3d Cir. 2007), particularly instructive on this point.

Although the Third Circuit had required proof by clear and
convincing evidence in certain cases prior to Booker, id. at
296, it held unequivocally in Fisher that the post-Booker
advisory nature of the Guidelines eliminates any due process
argument for a heightened standard of proof at sentencing. Id.
at 308.

In Fisher, the Third Circuit addressed the same issue
Grubbs would have us address here: "Does the Due Process
Clause of the Fifth Amendment require a district court to find
facts supporting sentencing enhancements by more than a pre-
ponderance of the evidence?" Id. at 296. After a thorough
review of the Supreme Court’s sentencing jurisprudence from
McMillan to Booker, the Third Circuit concluded the answer
to the query was clearly "no":
3
In the years between McMillan and Booker, the Circuit Courts split as
to whether a heightened standard of proof would ever be required and, if
so, when. See Watts, 519 U.S. at 156 & n.2 (discussing the split among
the Circuits and collecting cases). While several circuits referenced the
"tail that wags the dog" concern espoused in McMillan, only two circuits
held that clear and convincing evidence was required where certain facts
had a sufficiently great and disproportionate impact on a defendant’s sen-
tence. See United States v. Hopper, 177 F.3d 824, 833 (9th Cir. 1999);
United States v. Kikumura, 918 F.2d 1084, 1101-02 (3d Cir. 1990).
 UNITED STATES v. GRUBBS 13
Insofar as Booker rendered the Guidelines adviso-
ry[,] we reasoned that "the maximum legislatively
authorized punishment to which the defendant is
exposed is no longer the maximum prescribed by the
Guidelines; instead, it is the maximum prescribed by
the United States Code." Because "[n]one of the
facts relevant to enhancements or departures under
the Guidelines can increase the maximum punish-
ment to which the defendant is exposed," we
explained that they need not be proven by a reason-
able doubt. We concluded: "Under an advisory
Guidelines scheme, district courts should continue to
make factual findings by a preponderance of the evi-
dence and courts of appeals should continue to
review those findings for clear error."

....

. . . [U]nder an advisory system, "[f]acts relevant
to enhancements under the Guidelines would no lon-
ger increase the maximum punishment to which the
defendant is exposed, but would simply inform the
judge’s discretion as to the appropriate sentence."
Accordingly, sentencing judges are free to find facts
by a preponderance of the evidence, provided that
the sentence actually imposed is within the statutory
range, and is reasonable. In other words, although
concerns about the "tail wagging the dog" were valid
under a mandatory guideline system — like the
Pennsylvania system addressed in McMillan and the
federal Guidelines [pre-Booker] — these concerns
were put to rest when Booker rendered the Guide-
lines advisory. . . .

....

. . . After Booker, the "offense of conviction" is
defined by the United States Code; thus, a reason-
14 UNITED STATES v. GRUBBS
able sentence which does not exceed the maximum
prescribed by the Code cannot possibly be "dispro-
portionate to the offense of conviction."

....

. . . In sum, because the Guidelines are now advi-
sory and district judges are empowered to discharge
their duties fully in the first instance, it is a logical
impossibility for the "tail to wag the dog," as could
occur when the Guidelines were mandatory.

Id. at 305, 307-08.

Under the present sentencing system, the district court con-
tinues to "mak[e] appropriate findings of fact to calculate the
sentencing range prescribed by the Guidelines [and] Booker
ultimately did not change the procedure by which Guidelines
sentencing facts are found." United States v. Morris, 429 F.3d
65, 69 (4th Cir. 2005). As a practical matter, then, the only
change is "the degree of flexibility judges . . . enjoy in apply-
ing the guideline system." Id. at 72 (quoting United States v.
McReynolds, 397 F.3d 479, 481 (7th Cir. 2005)). Sentencing
courts continue to exercise their long-standing authority to
hear the evidence, and consider any evidence at sentencing
that "has sufficient indicia of reliability."4 See U.S.S.G.
4
The Guidelines provide the district court direction in considering facts
to be used during sentencing. U.S.S.G. § 6A1.3(a) states:
When any factor important to the sentencing determination is rea-
sonably in dispute, the parties shall be given an adequate oppor-
tunity to present information to the court regarding that factor. In
resolving any dispute concerning a factor important to the sen-
tencing determination, the court may consider relevant informa-
tion without regard to its admissibility under the rules of evidence
applicable at trial, provided that the information has sufficient
indicia of reliability to support its probable accuracy.
The comment to this section of the Guidelines elaborates that "use of a
preponderance of the evidence standard is appropriate to meet due process
requirements and policy concerns . . . ." Para. 3.
 UNITED STATES v. GRUBBS 15
§ 6A1.3(a). We are thus persuaded that after Booker, the due
process clause does not require the district court to find
uncharged conduct by a heightened standard of proof before
using it as a basis for determining a defendant’s sentence.5 As
the Sixth Circuit Court of Appeals observed in United States
v. Brika, 487 F.3d 450 (6th Cir. 2007), challenges to "large
enhancements . . . should be viewed through the lens of
Booker reasonableness rather than that of due process." 487
F.3d at 462 (citation omitted).

For the aforementioned reasons, we conclude the district
court was not required to apply a heightened standard of proof
to uncharged conduct used as the basis for enhancing Grubbs’
sentence. Preponderance of the evidence is the appropriate
standard of proof for sentencing purposes.6 Accordingly, the
5
This approach is consistent with a majority of Circuit Courts to address
the issue post-Booker, which have concluded that preponderance of the
evidence is sufficient to support facts relied upon for purposes of sentenc-
ing. See, e.g., United States v. Razo-Guerra, 534 F.3d 970, 975 (8th Cir.
2008); United States v. Pacheco, 489 F.3d 40, 45 (1st Cir. 2007); United
States v. Grier, 475 F.3d 556, 565-66, 568 (3d Cir. 2007) (en banc);
United States v. Kosinski, 480 F.3d 769, 774-77 (6th Cir. 2007); United
States v. Hall, 473 F.3d 1295, 1312 (10th Cir. 2007); United States v.
Dean, 487 F.3d 840, 854 (11th Cir. 2007); United States v. Gonzalez, 407
F.3d 118, 125 (2d Cir. 2005); United States v. Mares, 402 F.3d 511, 519
(5th Cir. 2005); McReynolds v. United States, 397 F.3d 479, 481 (7th Cir.
2005). But see United States v. Staten, 466 F.3d 708, 717-20 (9th Cir.
2006) (analyzing whether the clear and convincing evidence standard sur-
vived post-Booker, and concluding that it did because the focus for deter-
mining the appropriate standard of proof was on "the actual effect a given
fact had on the sentence that the district court ultimately imposed, not on
whether the district court was required to give a fact it found the effect
it did") (emphasis in original).
6
In his brief on appeal, Grubbs contends the district court did not use
a preponderance of the evidence standard for proving evidence, but
instead only weighed whether the evidence was "reliable." This argument
lacks merit. As noted, Grubbs failed to make any argument relating to
standard of proof in the district court. Viewed in context, the district
court’s comments regarding reliability and credibility of the evidence that
Grubbs points to as support for this assertion on appeal were all responses
16 UNITED STATES v. GRUBBS
district court did not err by relying on uncharged conduct that
was proven by that standard.7

C.

Lastly, Grubbs asserts the district court committed two pro-
cedural errors and therefore incorrectly calculated the applica-
ble Guidelines range. We review the district court’s
imposition of a sentence under a deferential abuse of discre-
tion standard. Gall v. United States, 552 U.S. 38, __, 128 S.
Ct. 586, 597 (2007). Our initial inquiry is to determine
whether the district court committed a procedural error, such
as "failing to calculate (or improperly calculating) the Guide-
lines range, treating the Guidelines as mandatory, failing to
consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence—including an explanation for any deviation
from the Guidelines range." Id.

Grubbs contends the district court impermissibly enhanced
his criminal history category by two levels and his offense
level by one level based on the same conduct. He argues that,
in so doing, the district court blurred the "clear distinction"
between setting criminal history according to conduct that is

to the actual arguments Grubbs made in district court, which challenged
the admissibility and weight of the evidence. Those comments do not
show the district court wrongly applied a standard of proof based on "reli-
ability." Grubbs conceded as much during oral argument, when he averred
that common sense indicates that the district court used a preponderance
of the evidence standard, even though it did not articulate what standard
of proof applied at the time of its decision.
7
To the extent that Grubbs asserts the district court’s sentence cannot be
sustained because it made no factual findings to support the sentence, the
record refutes this claim. Prior to sentencing Grubbs, the district court spe-
cifically referred to the testimony of Officer Kenny Lynch and the other
witnesses at the sentencing hearing and the information contained in the
PSR, detailing specific examples of the full scope of Grubbs’ conduct.
 UNITED STATES v. GRUBBS 17
not part of the instant offense and setting the offense level
according to relevant conduct that is part of the current
offense. (Appellant’s Br. 38-41.)

Under U.S.S.G. § 4A1.3(a)(1), a district court may depart
upward if "reliable information indicates that the defendant’s
criminal history category substantially under-represents the
seriousness of the defendant’s criminal history or the likeli-
hood that the defendant will commit other crimes . . . ." In
deciding whether to depart under this provision, the court may
consider prior similar adult conduct not resulting in a criminal
conviction. U.S.S.G. § 4A1.3(a)(2)(E). Here, the district court
concluded that a criminal history category of I seriously
under-represented Grubbs’ criminal history and the likelihood
that he would commit future crimes. In so doing, the court
specifically noted that Grubbs had at least a twenty-year his-
tory of molesting male, middle-school boys, and that he
engaged in the "[c]ontinued predatory conduct" of abusing
Child Victim 4 after he was under investigation for abuse.
(J.A. 166-69.) On these facts, the district court’s decision to
upwardly depart was based on the proper criteria set forth in
§4A1.3, and the extent of the departure is reasonable and sup-
ported.

The district court did not cite a specific departure provision
to support its decision to apply a one-level upward departure
to Grubbs’ offense level. It simply held that Grubbs’ initial

offense level failed to capture the vast majority of
the defendant’s criminal behavior. Only five of the
nearly dozen known victims are represented in the
indictment. Given the multiple account grouping
guideline[s], any additional victims or criminal acts
would not affect the guideline range. Accordingly,
the court finds that the defendant’s conduct is at least
one more level serious than the applicable guideline
range. Such a one-level departure is actually in the
Court’s opinion an act of restraint on its part.
18 UNITED STATES v. GRUBBS
(J.A. 169-70.) Pursuant to U.S.S.G. § 5K2.0(a)(1), the sen-
tencing court may depart upwardly from the applicable
offense level based on facts "of a kind, or to a degree, not ade-
quately taken into consideration by the Sentencing Commis-
sion in formulating the guidelines that, in order to advance the
objectives set forth in 18 U.S.C. § 3553(a)(2), should result in
a sentence different from that described." However, this pro-
vision does not cover departures based on a defendant’s crim-
inal history, which is addressed by other Guidelines
provisions, such as § 4A1.3, discussed earlier. See § 5K2.0
cmt. n.2(B). The district court’s reason for awarding the
offense level departure relied — at least in part — on the exis-
tence of additional victims not reflected in the counts of con-
viction. Therefore, if § 5K2.0 was the basis for the departure,
the district court may have erred in relying on this non-
offense-based factor.8

Even so, the resulting sentence is procedurally reasonable
because the district court adequately explained its sentence on
alternative grounds supporting a variance sentence, by refer-
ence to the 18 U.S.C. § 3553(a) factors. See United States v.
Evans, 526 F.3d 155, 165 (4th Cir. 2008) ("When . . . a dis-
trict court offers two or more independent rationales for its
deviation, an appellate court cannot hold the sentence unrea-
sonable if the appellate court finds fault with just one of these
rationales.") (emphasis in original); United States v.
O’Georgia, 569 F.3d 281, 296 (6th Cir. 2009).
8
The district court also provided the alternative ground for an upward
departure of the offense level, citing U.S.S.G. § 5K2.3, and the "extreme
psychological injury much more serious than that and normally resulting
from the commission of the offense" based on the victim impact state-
ments and testimony at the sentencing hearing regarding the "devastation"
and "severe impairment" Grubbs’ conduct had on his victims. (J.A. 170-
72.) However, this ground suffers the same problem identified for the gen-
eral offense-level departure provision of § 5K2.0 — the district court
relied on both the testimony of the victim in both the charged offense and
in some of the uncharged conduct to support this basis for a departure.
 UNITED STATES v. GRUBBS 19
Here, the district court’s statements during sentencing ade-
quately explain the basis for Grubbs’ sentence in terms of the
§ 3553(a) factors apart from its specific references to Guide-
lines departures. As noted above, the district court recounted
Grubbs’ substantial uncharged conduct, both in the form of
additional incidents of abuse against the victims identified in
the charged offenses and additional victims not identified in
those convictions. It also observed Grubbs’ persistent and
increasing abuse over the years, including continued abuse of
victims despite being aware that authorities were investigating
him for abuse. In addition, the court specifically noted,

when I look at [Grubbs’] history and characteristics,
I see good as well as bad, and I see families and peo-
ple affected positively by you. And I weigh that in
the consideration of the appropriate sentence. It
shrinks in comparison to the predatory criminal con-
duct that you engaged in. Our community trusted
you as a public school and Sunday school teacher; as
a coach, trusted you to protect, educate and care for
children. You perverted that trust. . . .

. . . [T]he Court has to protect the public from this
conduct. It must provide just punishment, must
ensure that conduct never happens again. . . . [Sen-
tencing must accomplish the goals] of protecting the
public, deterring other criminal conduct and incapac-
itating you in a way that you will never harm chil-
dren again and will also try in this sentence to
provide rehabilitation to you in a most effective
manner.

(J.A. 173-74.) For these reasons, the court concluded that its
sentence of 240 months was

sufficient but not greater than necessary to accom-
plish the sentencing objectives of Section 3553A
including the need for the imposed sentence to
20 UNITED STATES v. GRUBBS
reflect the seriousness of the offense[,] [promote] a
respect for the law, provide just punishment, . . . ade-
quately determined deterrents[,] and to protect the
public, especially young boys, from further crimes of
the defendant.

The sentence also provides, extended when
needed, medical[,] psychiatric care and other correc-
tional treatment in the most effective manner, takes
into account the nature and seriousness of these
offenses. Plus the history and characteristics of the
defendant addresses the kind of sentencing available
including guideline sentencing ranges in policy state-
ments of the United States Sentencing Commission.
It takes into account the need to avoid unwarranted
sentencing dispara[ties] among similarly situated
defendants.

(J.A. 175-76.) This additional, § 3553(a)-based, explanation
of Grubbs’ sentence provides independent grounds for a vari-
ance sentence and verifies the reasonableness of the district
court’s sentencing determination.

Grubbs next contends the district court erred by applying
vulnerable-victim adjustments based on facts already consid-
ered in calculating the offense guidelines.

Section 3A1.1(b) of the Guidelines provides for a two-level
increase if the defendant knew or should have known that a
victim of the offense was "unusually vulnerable due to age,
physical or mental condition, or [was] otherwise particularly
susceptible to the criminal conduct." U.S.S.G. § 3A1.1 cmt.
n.2. The commentary to this provision prohibits application of
the vulnerable-victim adjustment "if the factor that makes the
person a vulnerable victim is incorporated in the offense
guideline." Id. Thus, in order to apply the § 3A1.1(b) adjust-
ment, the district court had to rely on factors unrelated to the
calculation of his offense level, which relied on the child vic-
 UNITED STATES v. GRUBBS 21
tims being in Grubbs’ care, see U.S.S.G. § 2G1.3(b)(1)(B),
the child victims being unduly influenced because Grubbs
was at least 10 years older than they were, see U.S.S.G.
§ 2G1.3(b)(2)(B) & cmt. n.3(B), and the fact that the offenses
involved a sex act or sexual contact. See U.S.S.G.
§ 2G1.3(B)(4)(A).
As noted, the district court applied the vulnerable-victim
adjustment to the counts involving Child Victims 2, 3, and 5.
In so doing, the district court did not rely on any of the pro-
hibited factors. (J.A. 73-79.) Instead, it concluded that the
adjustment was warranted for Child Victim 2 and Child Vic-
tim 3 because Grubbs awarded higher grades to the boys than
the grades they earned, gave them gifts, and guaranteed the
receipt of a college football scholarship. It also found that the
adjustment was appropriate for Child Victim 5 because
Grubbs gained the trust of the victim’s single mother, who
suffered from a chronic illness, by providing transportation
and financial assistance to the family.
On this record, we cannot conclude the district court clearly
erred by applying the vulnerable-victim adjustment to Child
Victims 2, 3, and 5. Furthermore, we note that even if these
facts did not support application of the adjustment, the Guide-
lines calculation would not be affected. See U.S.S.G. § 3D1.4
(determining combined offense level). Accordingly, we find
the district court did not commit reversible error in calculating
Grubbs’ Guidelines range and the sentence was therefore pro-
cedurally reasonable.9
III.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
9
Grubbs only challenges the procedural reasonableness of his sentence,
and therefore we make no inquiry as to the substantive reasonableness of
the sentence. See Gall, 128 S. Ct. at 597.