United States v. Allen

F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
May 31, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,
v. No. 06-6111
LER OY ER IC ALLEN ,

Defendant-Appellant.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FO R TH E W ESTERN DISTRICT O F O K LAH O M A
(D.C. NO . CR-05-158-T)

Paul Antonio Lacy, Assistant Federal Public Defender, Oklahoma City,
Oklahoma, for the Defendant-Appellant.

John C. Richter, United States Attorney, Oklahoma City, Oklahoma, for the
Plaintiff-Appellee.

Before O’BRIEN, HOL LOW A Y, and M cCO NNELL, Circuit Judges.

M cCO NNELL, Circuit Judge.

Leroy Eric Allen pleaded guilty to a single count of possession of

methamphetamine w ith intent to distribute. That crime carries a statutory

minimum punishment of ten years imprisonment and a maximum of life. The

district court sentenced M r. Allen to 360 months imprisonment, which is more
than two-and-a-half times the top end of the Sentencing Guidelines’

recommended range. The district court based its sentencing decision on certain

extreme facts that came to light during the investigation of M r. Allen— namely,

his professed desire to rape and murder young girls and the possible steps he took

toward achieving those ends. Indeed, the district court gave M r. Allen the

sentence he would have received had he been convicted by a jury of solicitation

of murder or attempted sexual abuse and abduction of a child. W e hold that,

although the sentencing court may consider M r. Allen’s unrelated, non-charged

conduct in fashioning a sentence, the magnitude of the variance in this case and

the way it was calculated were unreasonable. W e therefore vacate the sentence

and remand for resentencing.

I. BACKGROUND

A. The Investigation

This highly disturbing case began on M ay 27, 2005, when Leroy Eric Allen

visited an Oklahoma City establishment featuring adult entertainment. There, he

befriended one of the club’s dancers, whom we will call “M s. A,” and the two

made plans to meet at his apartment later that evening. Her visit lasted several

hours, during which time the pair engaged in a wide-ranging discussion that

culminated in an exchange about M r. Allen’s sexual proclivities. M r. Allen

described in graphic detail his preference for “younger kids”— girls as young as

eight-years-old— and his desire to kidnap, rape, and murder them. R. Vol. III, at

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16, 30–32. As M s. A recalled during an evidentiary hearing before the district

court:

He said that he would want me to help him, maybe, kidnap a girl, and
he said that he would like to get ahold of a child and— or a young
girl and kidnap her, rape her, and then, when he w as done w ith her,
he wanted to put a bag over her head and watch her breathe in and
out, and he— he wanted to see the moisture on her lips and the bag,
and everything, and watch her eyes bulge out.

R. Vol. III, at 16–17. Frightened by this turn in the conversation, M s. A soon left

the apartment. She testified that M r. Allen was, by this point in the evening,

naked.

Over the course of the next few days, the two had a brief meeting at the

adult entertainment establishment and conversed by telephone. During these

conversations M r. Allen reaffirmed his desire to have M s. A assist him in

sexually assaulting and murdering a young girl. Alarmed by the level of detail in

M r. Allen’s descriptions and persuaded that his desires went beyond the bravado

typically demonstrated by men who shared their sexual fantasies with her, M s. A

contacted the FBI and reported what had taken place.

The FBI conducted a background check on M r. Allen and discovered that in

1987 he had been arrested by Oklahoma authorities for kidnaping and raping a

fifteen-year-old girl, a crime that ultimately led to a conviction for rape. M r.

Allen’s presentence report provides the following details:

According to the Information and the Affidavit in this case, the
defendant put a knife to the 15[-]year[-]old female victim’s throat

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 and pulled her into his apartment. He then forced her into the
bedroom where he vaginally raped her. Count 1 was reduced from
Rape I to Rape II as part of a plea agreement and a second count of
kidnapping was dismissed.

R. Vol. V, at 9. This history, combined with M s. A’s descriptions of her

interactions with M r. Allen, prompted the Bureau to commence a comprehensive

investigation of M r. Allen.

For six to eight weeks, beginning in early June 2005, the FBI surveilled M r.

Allen twenty-four hours a day, seven days a week. The surveillance failed to

uncover any nefarious activity by M r. Allen, other than his conversations w ith

M s. A. As the investigation rolled on with nothing to show for it, and resource

constraints mounted, the Bureau scaled back this surveillance to four to five days

a week.

The FBI also provided M s. A with a tape recorder and asked her to record

all further conversations with M r. Allen. On June 2, 2005, M s. A recorded a

conversation she had with M r. Allen at the adult entertainment establishment

where she was employed. M r. Allen reiterated his request for M s. A’s assistance

in a kidnaping, and told her that he would like to target another dancer at the bar

who had two younger daughters. M r. Allen also told M s. A that he had recently

had sexual intercourse with a thirteen-year-old girl. There was no other evidence

that this took place in reality.

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 In the early morning hours of June 4, M s. A again met M r. Allen at his

apartment, and recorded the ensuing conversation. M r. Allen came to the door

naked and escorted her to his bedroom. They reclined on his bed, and M r. Allen

again began discussing kidnaping and murdering a pre-teen girl. As the district

court described the conversation:

Defendant’s recorded words further detail his plan, including: when
(“very soon too, but we just have to be careful”); the victim’s age
(“eight to ten” because he “would want them to know what’s going to
happen”); the kidnaping (“have ‘em for a couple of days”); the
killing (“don’t want it to be quick;” a gunshot would be “just too
fast;” strangulation “doesn’t have to” be fast); the place (“have to
pick” one); and disposal of the body (“one of the most thought about
details of the whole thing;” “as long as nobody ever says anything . .
. it’ll never be found”).

R. Vol. I, Doc. 34, at 3–4. Toward the end of this conversation, M r. Allen began

masturbating and M s. A asked him if he was “[j]ust gettin [sic] turned on by the

thought.” Add. to Br. of Appellee, Ex. 1, at 5; R. Vol. III, at 24–25. The

recording does not clearly reproduce his response.

M s. A testified that at some point in the days following this encounter, M r.

Allen left her a phone message to the effect that if she refused to engage in oral

sex with him, he did not want her calling him anymore. The FBI, by now

concerned that her further involvement with M r. Allen posed a safety risk, also

instructed M s. A to cease communicating with M r. Allen. W ith M s. A’s

participation at an end, the FBI continued its intensive surveillance of M r. A llen.

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That surveillance failed to reveal any further attempts on M r. Allen’s part to carry

out the acts he had described to M s. A.

At some point in June, the FBI contacted the Oklahoma City Police

Department (“OCPD”) to determine whether there were any unsolved child

abduction cases in the area that might be linked to M r. Allen. One, in fact, did

exist. On April 2, 2005, a ten-year-old girl entered the video-game area of an

Oklahoma City W al-M art while her mother checked out. A man approached the

girl and asked if she liked men in masks. W hen the girl expressed confusion, the

m an asked w hether she liked professional wrestlers. The girl looked toward tw o

nearby W al-M art employees, and the man said: “D on’t look at them; they’ll kill

you.” R. Vol. III, at 63. At this point, the mother noticed the interaction and

approached her daughter. The man immediately fled the store.

After learning of this incident, and after establishing through surveillance

that M r. Allen did visit this W al-M art, the FBI provided the OCPD with his

picture. The O CPD arranged two photo arrays, only one of w hich contained M r.

Allen’s picture, and asked the mother if any of the men in the photographs

resembled the man from the W al-M art incident. W hen the mother came to M r.

Allen’s picture, which was contained in the second array she viewed, she

immediately identified him as the man w ho was talking with her daughter, stating:

“That’s him. That’s the guy.” R. Vol. III, at 68. In response to a follow-up

question from the police she said “she was 80-percent sure” that M r. Allen was

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the man from the incident. Id. These facts, combined with what the FBI already

knew about M r. A llen, served to increase the Bureau’s concern about him.

In early July 2005, the FBI observed M r. Allen moving out of his apartment

complex. Upon interviewing the complex’s management, the FBI learned that

M r. Allen had been evicted due to suspicion that he was peddling drugs from his

apartment. On July 4, 2005, the FBI introduced an undercover agent into M r.

Allen’s new apartment complex. The agent initially tried to pique M r. Allen’s

interest in participating in sexual intercourse with minors, but none of his

attempts were successful. At the evidentiary hearing, the FBI agent in charge of

the A llen investigation testified as follow s:

Q. And that agent tried to engage M r. Allen into traveling to Texas
to have sex with minors; is that true?
A. The— the agent spoke to M r. Allen and told him that he was
participating in sex with minors out of state.
Q. Okay. Did M r. Allen ever make any motions to go to Texas to
engage in such activity?
A. No.
Q. And was anything with that undercover agent and child sexual
abuse, did it ever come to fruition[?]
A. No. W hen they talked, M r. Allen would ask him how was your
weekend, and they would— they would talk about— the agent made
up a story about the weekend and stuff. He seemed interest[ed] and
asked, you know, “W atch out; be careful,” and that kind of stuff.
But, other than that, no, sir.

R. Vol. III, at 55–56.

At this point, the FBI shifted the focus of its investigation to M r. Allen’s

suspected illicit-narcotics activity. On July 7, 2005, the undercover agent had a

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lengthy conversation with M r. Allen, wherein M r. Allen discussed high-quality

methamphetamine production and his personal use of the substance. The agent

asked about purchasing some, and M r. Allen stated that he could sell him at least

a quarter-ounce for $365.00. M r. Allen later informed the agent that the

production process had faltered and he could not deliver on the promise.

Between July 9 and July 28, M r. Allen and the undercover agent engaged in

numerous discussions about methamphetamine, and M r. Allen repeatedly

promised and then failed to supply the agent with the drug. On July 29, the agent

pursued a new strategy and informed M r. Allen that he could provide four ounces

of high quality methamphetamine. M r. Allen was willing, and, in a series of e-

mails on August 2, he and the agent worked out an arrangement by which M r.

Allen would receive four ounces of methamphetamine at a value of $3,600.00,

would sell them quickly to repay the debt, and would, in the meantime, pledge

title to his motorcycle as collateral. On August 5, M r. Allen provided the agent

with the title to his motorcycle. He also showed the agent several small baggies

of high quality methamphetamine and asked if the narcotics he would be

receiving were of similar quality. The agent responded affirmatively and, later

that day, provided M r. Allen with the promised narcotics. As M r. Allen inspected

the drugs, FBI agents entered his apartment and arrested him.

During a subsequent search of M r. Allen’s apartment, the FBI discovered a

set of scales containing a w hite powder residue, a syringe filled with an unknown

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clear liquid, four empty syringes, several baggies containing residue, and a metal

measuring spoon containing white residue. On his computer’s hard drive the FBI

discovered files containing photographs of missing-children posters and several

stories M r. Allen had written about raping young girls. One of the stories

involved M s. A and another dancer at the adult entertainment establishment and

had a plotline similar to the scenes he had described to M s. A.

B. G uilty Plea and Sentencing

On September 6, 2005, a federal grand jury charged M r. Allen with a single

count of possession of fifty or more grams of methamphetamine with intent to

distribute, a violation of 21 U.S.C. § 841(a)(1). On October 5, 2005, M r. Allen,

w ithout entering into a plea agreement, pleaded guilty to this single count. He

agreed only to the following facts: “On 8-5-05 I accepted delivery of over 50

grams of methamphetamine from an undercover agent. I possessed the

methamphetamine with intent to distribute. This occurred in Oklahoma City[,]

OK.” R. Vol. I, Doc. 20, at 10.

A probation officer prepared a presentence report (“PSR”) in December

2005. The “Offense Conduct” section of the report detailed the portion of the

investigation relating to the narcotics charge. Another section, entitled “O ffense

Behavior Not Part of Relevant Conduct,” detailed the portion of the investigation

relating to potential sexual abuse and murder. The report advised that M r. Allen

should be held accountable for possession of 120 grams of methamphetamine, and

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calculated his total offense level at 29, a score which included a three-point

reduction for acceptance of responsibility. M r. Allen received five criminal

history points— three points for the 1987 rape conviction and two points for a

2004 conviction for driving under the influence of drugs— which translated into a

Criminal History Category of III. W ithout the statutory mandatory minimum, M r.

Allen’s G uidelines range would have been 108 to 135 months. Taking into

account the statutory mandatory-minimum sentence of ten years imprisonment

under 21 U.S.C. § 841(b)(1)(A), however, M r. Allen’s advisory Guidelines range

was 120 to 135 months imprisonment. At the close of the report, the probation

officer stated that he “has no information concerning the offense or the offender

which would warrant a departure from the prescribed sentencing guidelines.” R.

Vol. V, at 15. The officer did recommend, however, imposing conditions upon

supervised release relating to the treatment and management of sex offenders.

The government subsequently requested that the court consider an above-

Guidelines sentence “based upon other uncharged conduct so severe in nature that

a greater sentence is warranted in order to protect the public from further crimes

of the defendant.” R. Vol. I, Doc. 24, at 1. The government recounted the details

of the W al-M art incident and M r. Allen’s conversations with M s. A, and

characterized the drug prosecution as “quite simply, the fastest w ay to take this

dangerous man off the street.” Id. at 2. The government noted that “[u]nder the

Guidelines, § 4A1.3 permits a departure if the criminal history category

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significantly underrepresents the seriousness of the defendant’s criminal history

or the likelihood that the defendant will commit further crimes,” and thus

requested that the court depart upward two criminal history categories. Id. at 4–5.

The government reasoned that if M r. Allen had been convicted of solicitation of

murder (the conduct with M s. A) and attempted abduction (the W al-M art

incident) he w ould have a Criminal History Category of IV and qualify for a

sentencing range of 121 to 151 months imprisonment. 1 The government urged a

sentence at the top of that range, 151 months. Alternatively, the government

asked the court to simply exercise its Booker discretion and impose a sentence of

151 months.

M r. Allen opposed this motion and objected to those portions of the PSR

that described his interactions with M s. A and to the recommendation for sex

offender treatment upon supervised release.

On February 16, 2006, the district court held an evidentiary hearing to

resolve M r. Allen’s objections. The government presented the testimony of M s.

1
The government’s calculations were not correct. It erroneously assumed
that M r. Allen qualified for an initial Criminal History Category of II instead of
III. Thus, accounting for the prior felonies of attempted abduction and
solicitation of murder, if that is what they were— each of which merits three
additional criminal history points— would qualify M r. Allen for a sentencing
range higher than the one recommended by the government in its motion. That is,
if we add these six points to the three points for the 1987 rape conviction and the
two points for the 2004 driving under the influence conviction, the result is a total
of eleven points. This would qualify M r. Allen for a Criminal History Category
of V and a sentencing range of 140 to 175 months imprisonment. See U.S.
Sentencing Guidelines M anual, Ch. 5, Pt. A (2004).

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A, of the FBI agent in charge of the Allen investigation, and of the OCPD officer

who arranged the photo array relating to the W al-M art incident. M r. Allen cross-

examined these witnesses but did not present any witnesses of his own. The FBI

agent noted that the Oklahoma County district attorney was considering

prosecuting M r. Allen “for solicitation of murder and any other charge stemming

from this investigation.” R. Vol. III, at 51–52.

After this hearing, the district court, in a written order, held that the facts

stated in the PSR had been proven by a preponderance of the evidence and would

be considered in sentencing M r. Allen. The court explained that these matters

were “highly pertinent to the issue of Defendant’s sentence, particularly in view

of his past conviction of raping a fifteen-year-old girl by putting a knife to her

throat and pulling her into his apartment.” R. Vol. I, Doc. 34, at 1–2. The court

further held that these facts:

reflect the history and characteristics of Defendant and pertain to the
statutory purposes of sentencing set forth in [18 U.S.C.] §
3553(a)(2), such as protection of the public from further crimes by
Defendant and deterrence to criminal conduct. The Court also finds
that the Sentencing Guidelines provide no particularly appropriate
mechanism for an upward departure under these extraordinary and
extreme facts. The applicable guideline range based on Defendant’s
offense and criminal history (120–135 months) is grossly inadequate
and does not accurately reflect either D efendant’s criminality or his
propensity for violent crime involving adult and minor victims and
sexual offenses. Rather, these extraordinary and extreme facts lend
themselves to a district court’s authority to deviate reasonably from
the advisory Sentencing Guidelines to satisfy the goals of sentencing.

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R. Vol. I, Doc. 34, at 4–5 (internal citation omitted). The district court also

rejected M r. Allen’s objections to the inclusion of sex-offender release conditions

and stated that it w ould include such conditions in his sentence.

Sentencing occurred on M arch 9, 2006. At the hearing, the government,

without explanation, requested a longer sentence than the one it had previously

recommended to the court in its motion. Instead of arguing that M r. Allen’s non-

drug related conduct should be incorporated into his criminal history, the

government now argued that this conduct should be punished in its own right,

explaining that application of the sexual abuse provision of the Guidelines, §

2A3.1, would result in “a total offense level of 36, with a Criminal History

Category of three, which would recommend a sentencing guideline range of 235

to 293 months.” R. Vol. IV, at 77. M r. Allen’s counsel requested that the court

“not deviate to any substantial degree,” noting that Oklahoma authorities w ere

considering prosecuting M r. Allen for the other aspects of the investigation and

that his “original guideline sentence began at a level less than the ten-year

mandatory minimum stated in the presentence report.” R. Vol. IV, at 78–79.

After hearing these arguments, the district court pronounced M r. Allen’s

sentence. 2 The court concluded that the “advisory guideline range of less than

twelve years in prison [was] vastly inadequate to satisfy the statutory purposes of

2
The court issued both an oral ruling and a contemporaneous written order.
The oral ruling essentially constitutes a paraphrasing of the written order, and w e
quote from the latter.

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sentencing,” R. Vol. I, Doc. 37 at 1, and found that the “unusual facts of this case

plainly warrant an exercise of the Court’s ‘broad discretion to consider

information concerning the defendant’s life and characteristics, including conduct

on which he ha[s] not been convicted,’” id. at 3 (quoting United States v.

M agallanez, 408 F.3d 672, 684 (10th Cir. 2005)). Citing both M r. Allen’s

interactions with M s. A and the W al-M art incident, the court reiterated that it had

found, by a preponderance of the evidence, that “in 2005 Defendant was actively

planning and taking steps to accomplish a number of violent, sexual crimes

against females and children.” Id. at 3. The court was convinced of “the severity

of [M r. Allen’s] threat to the community, and found no basis to question the

seriousness of [his] criminal and violent intentions. In fact, his criminal history

confirm[ed] his ability to act on his violent sexual desires.” Id. at 5–6.

The district court concluded that because “the Sentencing Guidelines

provide no particularly appropriate mechanism for an upward departure under

these extraordinary facts, [it] must go outside the guideline range,” taking

guidance from the § 3553(a) factors and Booker’s “standard of reasonableness.”

Id. at 3. Turning to these factors, the court reasoned as follows:

Two of the statutory factors . . . cause grave concern: the need for the
sentence imposed (1) to protect the public from further crimes of
Defendant and (2) to provide adequate deterrence to criminal conduct
by others. Defendant’s degree of dangerousness and the nature and
seriousness of his threatened conduct demand a severe sentence in
order to serve these dual purposes. In addition, in view of the
similarity between his past conviction of the violent rape of a fifteen-

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 year-old girl and his recent actions, the Court finds a high likelihood
of recidivism; indeed, the evidence established not only Defendant’s
propensity but his actual determined efforts toward recidivism. . . .
Defendant’s penchant for targeting children and inflicting cruel fear
and torture as a form of personal sport or sexual pleasure warrants
even greater reprobation.

Id. at 6. The court imposed a sentence of 360 months imprisonment as

“reasonable, necessary, and minimally sufficient to satisfy the incapacitative and

deterrent goals of sentencing.” Id. at 6–7.

Despite its earlier statement that the Guidelines provided “no . . .

mechanism” to compute an appropriate sentence, id. at 3, the court “recognize[d]

its duty to consult [them],” and thus “searched the Sentencing Guidelines for

guidance,” proceeding as follow s:

It appears the most closely analogous basis for an upward departure
lies in § 5K2.21, entitled “Dismissed and Uncharged Conduct.” This
provision permits a sentencing court to depart upward “based on
conduct (1) . . . underlying a potential charge not pursued in the case
as part of a plea agreement or for any other reason; and (2) that did
not enter into the determination of the applicable guideline range.”
U.S. Sentencing Guidelines M anual § 5K2.21 (emphasis added). The
facts stated above, viewed under a preponderance of the evidence
standard, establish conduct underlying a potential charge of attempt
or solicitation to commit aggravated sexual abuse or first-degree
murder. Considering the guideline provisions for such offenses
based on the conduct shown by the evidence and Defendant’s
criminal history would yield an advisory guideline range of 360
months to life, calculated as follow s.
For criminal sexual abuse or attempt to commit criminal sexual
abuse, the applicable guideline section is 2A3.1. The base level is 30
and the specific offense characteristics would w arrant increases for:
(a) aggravated conduct (using force and placing the victim in fear of
death, serious bodily injury or death), 4 levels; (b) the age of the
victim (under twelve years), 4 levels; (c) life-threatening bodily

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 injury to the victim, 4 levels; and (d) abduction of the victim, 4
levels. The adjusted offense level under Section 2A3.1 is 46. If the
victim was murdered, the cross-reference requires the application of
Section 2A1.1 if a greater offense level results. Section 2A1.1
provides a base offense level of 43. However, Section 2X1.1(b)(3)
would require a decrease of 3 levels because it was a solicitation
rather than a completed offense. Thus the total offense level for
uncharged conduct would be at least 40. W ith Defendant’s criminal
history category of III, the Sentencing Table yields a recommended
guideline range for offense level 40 of 360 months to life. Thus
view ing the Sentencing Guidelines as an objective marker, this
analysis confirms the reasonableness of the sentence determined by
the Court based solely on the sentencing factors and its reasoned
judgment as a sentencing court.

Id. at 7–8 (omission in original).

M r. Allen appeals his sentence on the ground of substantive

unreasonableness under Booker. He also contends the sentence violates the

Eighth Amendment. 3 Because w e vacate the sentence on reasonableness grounds,

we do not reach his Eighth Amendment argument.

II. D ISC USSIO N

M r. Allen pleaded guilty to possession with intent to distribute

methamphetamine. The statutory punishment range for this crime is broad: ten

3
In his statement of facts, M r. A llen also asserts that the “district court . . .
imposed condition[s] of supervised release just as if [he] had been convicted of []
criminal sexual abuse.” Appellant’s Br. at 9–10. M r. Allen does not return to the
issue in the argument section of his brief and provides no legal authority in
support of it. Thus, to the extent this lone phrase represents an argument against
the imposition of these conditions, we decline to address it. See United States v.
Banks, 451 F.3d 721, 728 (10th Cir. 2006) (“M r. Banks provides no legal
authority to support this argument; therefore, we decline to address it.”).

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years to life. In light of his criminal history— which includes the forcible rape of

a minor female— as well as a congressionally imposed mandatory minimum based

on drug quantity, see 21 U.S.C. § 841(b)(1)(A )(viii), the district court correctly

calculated an advisory sentencing range of 120–135 months in prison.

The district court then sentenced M r. A llen to 360 months imprisonment.

This dramatic upward variance was based on the fact that, during the course of

this investigation, M r. Allen expressed a continued desire to sexually assault,

rape, torture, and murder young girls, along with some evidence that he may have

taken preliminary steps toward acting upon these desires. Reasonable minds may

differ on just how to interpret this evidence, and the issue was not put to a jury.

The defense presented a plausible argument that M r. Allen was, like a twisted

W alter M itty, simply fantasizing. But the district court concluded that M r. Allen

actually desired and planned to commit these crimes and was taking steps tow ard

doing so. Based on the record in this case, that conclusion was not clearly

erroneous. And the district court’s conclusions regarding M r. Allen’s proclivities

undoubtedly bear a logical relation to the sentencing factors set forth in 18 U.S.C.

§ 3553(a), most especially the need to protect the public from further crimes of

the defendant.

The question presented is whether it was reasonable for the district court

effectively to sentence M r. Allen as if he had been tried and convicted of

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attempted criminal sexual abuse or solicitation of murder, when his crime of

conviction was sale of methamphetamine.

A. Standard of Review

Under our decision in United States v. Kristl, 437 F.3d 1050 (10th Cir.

2006), we follow a two-step approach in reviewing a district court’s sentencing

decision. First, we review the court’s calculation of the defendant’s Guidelines

sentence, if challenged. Id. at 1054–55. Second, if the district court correctly

determined that range, we review the actual sentence imposed for reasonableness.

Id.; United States v. Booker, 543 U.S. 220, 261–62 (2005). Because M r. Allen

does not challenge the district court’s calculation of his Guidelines range, we

proceed directly to the second step of the Kristl inquiry.

W ithin-G uidelines sentences enjoy a presumption of reasonableness, Kristl,

437 F.3d at 1054, while sentences that fall outside of this range are reviewed on a

“sliding scale,” United States v. Valtierra-Rojas, 468 F.3d 1235, 1239 (10th Cir.

2006). W e look to the “discrepancy between the advisory guidelines range and

the actual sentence,” Cage, 451 F.3d at 594, “in terms of both percentage and

absolute time,” Valtierra-Rojas, 468 F.3d at 1240. “The farther the [sentencing]

court diverges from the advisory guideline range, the more compelling the reasons

for the divergence must be.” Id. at 1239 (internal quotation marks omitted). In

Cage, the district court imposed a sentence of six days’ imprisonment, a

downward variance from the guidelines range of forty-six to fifty-seven months.

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W e characterized this variance as “extreme” and “reasonable only under dramatic

facts.” Cage, 451 F.3d at 594. In Valtierra-Rojas, we described the “thirty-three-

month/122% ” upward variance as “not nearly so extreme,” but nevertheless

treated it as a “substantial” variance requiring “compelling reasons.” 468 F.3d at

1240. The variance here— 225 months, or 167% — is more substantial than that in

Valtierra-Rojas. W e regard it as sufficiently extreme that it can be upheld only

based upon a compelling justification.

B. Consideration of this Sentence Under the Sentencing G uidelines

The district court concluded that the Sentencing Guidelines provided “no . .

. mechanism” to compute an appropriate sentence under the “extraordinary facts”

of this case. R. Vol. I, Doc. 37, at 3. That is why it imposed an upward variance

in the exercise of its Booker discretion. W e begin our analysis of reasonableness

with a discussion of why the Guidelines w ould not permit the court to impose this

kind of sentence; we can then consider w hether it was reasonable for the court, in

its exercise of Booker discretion, to disregard the relevant limiting principles

found in the Guidelines.

1. Attempted Crimes Versus Threatened Future Conduct

As a first step, we must consider how to interpret the evidence of M r.

Allen’s non-drug-related conduct, which consisted of discussions with M s. A and

an encounter w ith a child in the W al-M art. These events can be viewed in two

different ways. First, they may have been actual attempted criminal activity. M r.

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Allen’s conversations with M s. A may have constituted the crime of solicitation

of murder and the W al-M art incident may have constituted the crimes of

attempted abduction or attempted sexual abuse of a child. Portions of the district

court’s opinion suggest this attempted-crimes perspective. For example, the court

outlined the “steps” M r. Allen had already taken “to accomplish a number of

violent, sexual crimes.” Id. The court’s sentencing calculation was based on the

crime of criminal sexual abuse or attempt, with a four-level enhancement for

aggravated conduct, a four-level enhancement for age of the victim, a four-level

enhancement for life-threatening bodily injury to the victim, and a four-level

enhancement for abduction of the victim. Id. at 7–8. The court also calculated the

sentence for murder, with a three-point decrease in offense level because the

conduct was solicitation rather than a completed homicide. Id. at 8. All this

reads as if these crimes had already been committed.

Alternatively, M r. Allen’s statements and behavior may raise a concern

about his potential future criminality. Portions of the district court’s explanation

suggest this future-crimes perspective. For example, the court discussed the

“seriousness of his threatened conduct,” id. at 6 (emphasis added), as well as his

“propensity” and “penchant” for “targeting children and inflicting cruel fear and

torture as a form of personal sport or sexual pleasure.” Id.

This distinction has significance under the Guidelines because of the

different ways in w hich related conduct, past crimes, and future dangerousness

-20-
are treated. Conduct related to the offense of conviction is treated as an offense

characteristic, whereas past criminal convictions are generally treated as an

offender characteristic, and taken into account by assigning a criminal history

score. See Douglas A. Berman, Conceptualizing Blakely, 17 Fed. Sent’g Rep. 89,

89–90 (2004) (distinguishing between offense characteristics and offender

characteristics). Future dangerousness also is an offender characteristic. Because

evaluation of future dangerousness could otherwise veer into speculation, it

generally is evaluated on the basis of the defendant’s recidivism, which takes into

account prior convictions and prior similar adult misconduct. United States

Sentencing Guidelines M anual §§ 4A1.1, 4A.3.(a)(2)(E). To predicate a sentence

on evidence that a defendant is likely to comm it a particular crime in the

future— based not upon past or similar crimes, but upon expressions of

desire— takes us into uncharted waters. For the most part, we regard the district

court’s order as relying on uncharged, attempted criminal activity. Toward the

end of the opinion, we consider the propriety of basing a sentence on threatened,

but as yet not executed, crimes. Either way, reliance on this past or threatened

future conduct is problematic.

2. O ffense Characteristics

As Justice Breyer explained in Booker, “Congress’ basic statutory goal— a

system that diminished sentencing disparity— depends for its success upon

judicial efforts to determine, and to base punishment upon, the real conduct that

-21-
underlies the crime of conviction.” 543 U .S. at 251. Accordingly, the first

fundamental element of the G uidelines calculation is the assignment of a base

offense level, which is calculated by accounting for “all acts and omissions

comm itted . . . by the defendant . . . that occurred during the commission of the

offense of conviction, in preparation for that offense, or in the course of

attempting to avoid detection or responsibility for that offense.” U.S. Sentencing

Guidelines M anual § 1B1.3(a)(1) (2004). Known as relevant conduct, this

comprises more, often much more, than the offense of conviction itself, and may

include uncharged and even acquitted conduct. See Magallanez, 408 F.3d at 684.

As stated in the commentary to the Guidelines, “[c]onduct that is not formally

charged or is not an element of the offense of conviction may enter into the

determination of the applicable guideline sentencing range.” U.S.S.G. § 1B1.3

cmt. background. But though relevant conduct includes more than just the

conduct for which a defendant was convicted, it has limits: the conduct must

relate to the offense of conviction. See, e.g., United States v. Asch, 207 F.3d

1238, 1243 (10th Cir. 2000); United States v. Custodio, 39 F.3d 1121, 1126 (10th

Cir. 1994); United States v. Ortiz, 431 F.3d 1035, 1040 (4th Cir. 2005); United

States v. Leonard, 289 F.3d 984, 987–88 (7th Cir. 2002); United States v.

M cGahee, 257 F.3d 520, 532 (6th Cir. 2001); United States v. Cross, 121 F.3d

234, 238–39 (6th Cir. 1997); United States v. Kim, 896 F.2d 678, 682–84 (2d Cir.

1990).

-22-
 The relatedness principle is fundamental because of our commitment to

sentencing based on the seriousness of the actual offense proven or admitted. See

18 U.S.C. § 3553(a)(1) (“the nature and circumstances of the offense”) (emphasis

added); id. § 3553(a)(2)(A) (“the need for the sentence imposed . . . to reflect the

seriousness of the offense . . .”) (emphasis added); W illiam W . W ilkins, Jr. &

John R. Steer, Relevant Conduct: The Cornerstone of the Federal Sentencing

Guidelines, 41 S.C. L. Rev. 495, 497–99 (1990). This is not unrelated to the

Sixth Amendment principles underlying Booker. M ost crimes include within their

ambit a broad range of conduct. Depending upon the circumstances of its

commission the same “crime” will have a different impact, reflect varying levels

of culpability, or portend unlike consequences. W hen a sentencing court

considers conduct related to the offense of conviction, the objective is to

determine the seriousness of the very crime found by the jury or admitted by the

defendant. If the considered conduct has nothing to do with the offense of

conviction, the court is effectively sentencing a defendant for a crime that was

never proved to the jury, or admitted by the defendant. To allow this w ould

empow er the government to obtain punishment for any number of unrelated

crimes, based on bench trial rather than jury trial. The relatedness principle thus

keeps the system from straying too far beyond the Sixth Amendment line.

In assessing whether conduct is sufficiently related to the offense of

conviction, courts ask “whether there is a strong relationship between the

-23-
uncharged conduct and the convicted offense, focusing on whether the

government has demonstrated a significant similarity, regularity, and temporal

proximity.” Ortiz, 431 F.3d at 1040 (internal quotation marks omitted); see also

United States v. Roederer, 11 F.3d 973, 979 (10th Cir. 1993). For example, this

Court has found that drugs possessed for a defendant’s personal use were related

to the defendant’s drug manufacturing and distribution offenses because the

quantity of drugs the defendant personally consumed was relevant to the total

amount of illicit narcotics she received during the drug conspiracy. Asch, 207

F.3d at 1244. On the other hand, we have also held that certain forms of

overbilling were not related to a doctor’s offense of billing for services he did not

perform. Custodio, 39 F.3d at 1126. The Custodio Court explained that the

government had not proven the overbilling practices were “the same type of

conduct” or part of “the same scheme or plan” as the offense of conviction, and

noted that if the overbilling had been charged, the defendant might have had

viable defenses, such as mistake or misunderstanding. Id. In a particularly

striking case, the Sixth Circuit reversed a § 1B1.3 enhancement where the

defendant pled guilty to distribution of cocaine. Cross, 121 F.3d at 240–41. The

district court applied an upward enhancement based on evidence that the

defendant had participated in the gruesome torture of a former confederate

suspected of stealing drugs. Because the appellate court concluded that there was

-24-
an insufficient connection between the torture and the defendant’s cocaine sale, it

reversed the enhanced sentence. Cross, 121 F.3d at 238–41.

In this case, the district court correctly concluded— and the government

does not contest— that the horrific sexual abuse or murder that M r. Allen either

contemplated or took steps tow ard committing was not relevant conduct because

it w as completely unrelated to his sale of methamphetamine. Although the two

forms of criminality occurred during the same time frame, there is no other

connection between them. The W al-M art incident and M r. Allen’s discussions

with M s. A did not occur in preparation for the methamphetamine sale, during the

execution of the sale, or in the course of avoiding responsibility for the sale. See

U.S.S.G. § 1B1.3(a)(1). This case thus bears a close resemblance to Cross,

except that in Cross the torture actually occurred, and the torture and the drug

offense were more arguably connected. W e conclude that M r. Allen’s uncharged

activities, whether threatened or attempted, did not constitute relevant conduct

under § 1B1.3 of the Guideline. To the extent that the district court used the

uncharged conduct in this case as an offense characteristic, w hich is not clear, it

violated a basic structural norm of the Guidelines system.

3. Criminal H istory

The second fundamental element of the Guidelines calculus is based on an

offender characteristic, namely criminal history. In this context, prior acts that

are not related to the offense of conviction may be considered because a

-25-
“defendant’s prior record of past criminal conduct is directly relevant to” the

purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2). U.S.S.G. § 4A intro.

cmt. “A defendant with a record of prior criminal behavior is more culpable than

a first offender and thus deserving of greater punishment.” Id.

Criminal history points are assigned for prior crimes only when the

defendant w as previously tried and convicted of the offense. See U.S.S.G. §§

4A1.1, 4A1.2. Each of the criminal history categories is defined according to the

defendant’s “prior sentence,” w hich in turn is defined as “any sentence previously

imposed upon adjudication of guilt . . . for conduct not part of the instant

offense.” Id. § 4A1.2(a)(1). This limitation, like the relatedness rule for relevant

conduct, has Sixth Amendment implications: criminal history points are assigned

only on the basis of prior convictions by a jury or pleas of guilty or nolo

contendere. A sentencing judge cannot impose additional punishment pursuant to

criminal history without a “jury . . . stand[ing] between the individual and the

power of the government.” Booker, 543 U.S. at 237. M r. Allen’s non-drug

related conduct therefore could not count toward his criminal history without

violating a second fundamental structural feature of the Guidelines, which limits

criminal history to misconduct that was formally adjudicated, with Sixth

Amendment safeguards.

-26-
 4. Upw ard Departures Under the G uidelines

Nor could the district court have departed upward under the Guidelines on

the basis of these facts. Under § 5K2.0, a court can depart from “the applicable

guideline range based on offense characteristics or offender characteristics of a

kind, or to a degree, not adequately taken into consideration in determining that

range.” U.S.S.G. § 5K2.0 cmt. n.2(A). 4 But like enhancements for uncharged

conduct under § 1B1.3, when a § 5K2.0 departure is based on ‘“acts of

misconduct not resulting in conviction’” those acts must still “‘relate

meaningfully to the offense of conviction.’” United States v. Neal, 249 F.3d

1251, 1260 (10th Cir. 2001) (quoting United States v. Amirault, 224 F.3d 9, 12

(1st Cir. 2000); see also United States v. Haggerty, 4 F.3d 901, 903 n.2 (10th Cir.

1993) (“[I]f we were presented with a case where a district court departed based

upon a totally irrelevant circumstance, we w ould not hold such a departure

authorized merely because the circumstance was of a kind omitted by the

Guidelines.”); Cross, 121 F.3d at 240; Kim, 896 F.2d at 684. Section 5K2.0 was

therefore unavailable in this case.

The Guidelines also recognize that the criminal history scoring system will

sometimes underrepresent (or overrepresent) the seriousness of an offender’s

4
Section 5K 2.0 is not applicable to departures pursuant to other guidelines,
such as underrepresentation of criminal history. U.S.S.G. § 5K2.0 cmt. n.2(B).
Neither criminal history nor underrepresentation of criminal history is limited to
crimes related to the crime of conviction.

-27-
criminal past. Section 4A1.3(a)(1) therefore provides that “[i]f reliable

information indicates that the defendant’s criminal history category substantially

under-represents the seriousness of the defendant’s criminal history or the

likelihood that the defendant will commit other crimes, an upward departure may

be warranted.” One might argue that M r. Allen’s statements and behavior during

this investigation render his criminal history, and in particular his past conviction

for forcible rape of a fifteen-year-old girl, more ominous, and thus that a

departure would be warranted under this section. That, presumably, is why the

government initially proposed to the court an upward departure of two criminal

history categories.

But there are problems w ith this approach. In the 2004 Guidelines M anual,

§ 4A1.3(a)(2) reads as follows:

The information described in subsection (a) may include information
concerning the following:
(A) Prior sentence(s) not used in computing the criminal
history category (e.g., sentences for foreign and tribal
offenses).
(B) Prior sentence(s) of substantially more than one year
imposed as a result of independent crimes committed on
different occasions.
(C) Prior similar misconduct established by a civil adjudication
or by a failure to comply with an administrative order.
(D) W hether the defendant was pending trial or sentencing on
another charge at the time of the instant offense.
(E) Prior similar adult criminal conduct not resulting in a
criminal conviction.

-28-
U.S. Sentencing Guidelines M anual § 4A1.3(a)(2) (2004). It does not appear that

M r. Allen’s uncharged conduct falls into any of these categories. 5 All prior

convictions may be considered, but only similar adult criminal conduct. His

perverse sexual desires and putative acts in furtherance of them are distinctly

dissimilar from the crime of conviction.

M oreover, even assuming prior misconduct outside the categories listed in

§ 4A1.3 could be the basis for a departure for underrepresented criminal history,

such misconduct would still have to be considered and weighed in a manner

similar to that employed for acts of prior misconduct already contemplated by the

Guidelines, that is, as increasing the defendant’s criminal history score, not his

offense level. See U.S. Sentencing Guidelines M anual § 4A1.3(a)(4) (2004);

United States v. Thorton, 922 F.2d 1490, 1494 (10th Cir. 1991) (“[T]he district

court erred in determining the degree of upward departure because it ignored the

distinction between offense level and criminal history category departures.

Thorton’s prior uncharged criminal conduct reflects on the adequacy of her

5
It may be significant that, prior to 2003, the Guidelines M anual expressly
stated that a district court was “not limited to” the information in the five
categories listed above. The Sentencing Commission dropped these words from
the M anual in 2003 when it substantially amended §4A1.3 to comport with the
PROTECT Act, which directed the Sentencing Commission to “substantially
reduce[]” the incidence of downward departures. Pub. L. 108-21. Nothing in the
commentary regarding this amendment suggests that the change was meant to
transform the list into an exhaustive one, U.S.S.G. App. C, Vol. II, Am. 365, but
the change in language might be read that way. Because the district court in this
case did not justify the sentence as a departure under this provision, we need not
resolve that issue today.

-29-
criminal history category, not the base offense level.”); United States v. Wittig,

206 F. App’x 763, 771 (10th Cir. 2006) (unpublished) (“[W ]e understand why M r.

W ittig’s [current] sentence should reflect the criminal history established by his

convictions in the [prior] W estar case; but we fail to understand why those

convictions are otherw ise relevant to the present case.”).

Had M r. A llen’s non-drug-related conduct been worthy of a § 4A1.3

departure, as the government initially urged, the district court could have added

two felonies to his record (assuming, as did the sentencing judge, that attempted

sexual abuse and solicitation of murder were the crimes to be considered). As set

out in the margin above, see supra note 1, this would have added six criminal

history points to M r. Allen’s score, qualified him for a criminal history category

of V , and resulted in a G uidelines sentencing range of 140 to 175 months. M r.

Allen’s actual 360 month sentence obviously far exceeds the range that would

have been applicable even if a departure were warranted.

C. Exercise of Booker Discretion

The fact that M r. Allen’s sentence could not have been justified under the

Guidelines does not, of course, mean that it is unreasonable. The district court

did not purport to hew to the Guidelines in setting M r. Allen’s sentence, and as a

result of the Booker decision, was not required to do so. W e do not question, for

example, that a sentencing court may vary upward or downward based on the

court’s own evaluation of the defendant’s likelihood of recidivism or

-30-
reform— though we note that courts of appeals have regarded extreme variances

on the basis of such factors unreasonable. See, e.g., United States v. Pyles, ___

F.3d ___, 2007 W L 1063616, at *1–2, 7 (4th Cir. Apr. 11, 2007) (finding

substantively unreasonable a district court’s decision to vary downward from an

advisory range of 63–78 months and impose no prison time based on the

defendant’s “substantial rehabilitation”); United States v. Garate, ___ F.3d ___,

2007 W L 967317, at *2–3 (8th Cir. Apr. 3, 2007) (concluding that the district

court gave “undue weight” to defendant’s age and to a study showing that

younger perpetrators commit criminal acts due to cultural and environmental

influences); United States v. Perrin, 478 F.3d 672, 678 (5th Cir. 2007) (vacating a

downward variance and finding the defendant’s “contrition and his

comm encement of counseling” to be “inappropriate grounds for imposing a non-

guidelines sentence, because they are already accounted for in the reduction for

acceptance of responsibility”); United States v. Kane, 470 F.3d 1277, 1281 (8th

Cir. 2006) (vacating a 90-month downward variance and finding that the

defendant’s “rehabilitative efforts are not extraordinary and do not support a

sentence reduction”). See also United States v. Sindima, 478 F.3d 467, 473 (2d

Cir. 2007) (overturning an upward variance, based primarily on the need for

deterrence, because the Guidelines already accounted for this factor); United

States v. Tucker, 473 F.3d 556, 564–65 (4th Cir. 2007) (same).

-31-
 W e recognize that, after Booker, sentencing courts have some latitude to

consider evidence and conduct beyond what would have been permissible under

§§ 1B1.3, 4A1.3, and 5K2.0 in the course of determining whether the defendant’s

criminal history adequately reflects his dangerousness to the community. For

example, this Court has upheld as reasonable an upward variance based on

evidence of past misconduct (such as police records in connection with arrests)

that did not result in conviction. See United States v. M ateo, 471 F.3d 1162,

1166–68 (10th Cir. 2006); see generally M agallanez, 408 F.3d at 684 (noting that

“[n]o limitation” should “be placed on the information concerning the

background, character, and conduct of a person . . . for the purpose of imposing

an appropriate sentence.”).

The question posed by this case, however, is not whether consideration of

M r. Allen’s unrelated, unadjudicated, and dissimilar actions was improper, but

whether the weight given to those actions was excessive. See Cage, 451 F.3d at

595 (“The problem w ith the sentencing decision . . . is not in the consideration of

these factors; it is in the weight the district court placed on them.”); United States

v. M orales-Uribe, 470 F.3d 1282, 1286 (8th Cir. 2006) (noting that “while the

district court considered appropriate factors in imposing the sentence, [it]

committed a clear error of judgment in weighing these factors”).

It might well have been reasonable for the district court to consider M r.

Allen’s uncharged conduct as a factor bearing on offender characteristics, on

-32-
analogy to departures under § 4A1.3. As noted above, that would lead to a

sentencing range of 140 to 175 months. This is essentially the approach urged by

the government in its written motion to impose an above-guidelines sentence. R.

Vol. I, Doc. 24. Although this would stretch the categories of information

bearing on underrepresentation of criminal history beyond those listed in § 4A1.3,

it would remain faithful to the fundamental architecture of the Guidelines and

might therefore fall within the realm of Booker discretion. Instead, however, the

district court essentially abandoned consideration of the advisory guidelines range

and substituted a calculation based explicitly on unrelated conduct with which

M r. Allen had not been charged or convicted.

The district court concluded that “the nature and seriousness of [M r.

Allen’s] threatened conduct” necessitated a 360-month sentence. R. Vol. I, Doc.

37, at 6. The court “confirm[ed]” the necessity of this punishment by looking to

the sentence M r. Allen would have received if he were actually charged for

additional crimes in a federal court and were convicted by a jury of his peers. Id.

at 8. As we explained above, the court at times seemed to be contemplating

crimes it felt were already completed and at times seemed to be forecasting what

M r. Allen might do in the future. W hichever it is, we think the district court

strayed from the path of reasonableness. Even if it is reasonable to conclude that

a defendant who committed uncharged crimes or who presents a serious risk of

comm itting future crimes deserves greater punishment than a similarly-situated

-33-
defendant who committed no such other crimes and presents no such risk, it is

quite another thing to conclude that the proper measure of that increase is the

sentence that would be imposed had the defendant actually been convicted of

those uncharged, unrelated crimes.

In United States v. Wolfe, 435 F.3d 1289 (10th Cir. 2006), the district court

sentenced a defendant convicted of involuntary manslaughter as if he had been

convicted of second-degree manslaughter with malice aforethought. Id. at 1294,

1304. This Court held that a “district court cannot simply depart upward ‘based

in actuality on the contention that the offense of conviction is more properly

characterized as another, closely related offense.’” Id. at 1304 n.12 (quoting

United States v. Hanson, 264 F.3d 988, 995 (2001)). 6 This case involves an even

more extreme recharacterization of the offense: from methamphetamine

distribution to attempted sexual abuse of a child or solicitation of murder. If it

was error in Wolfe for the sentencing judge to elevate a conviction of

manslaughter from one degree to another for purposes of sentencing, it follow s a

fortiori that a sentencing judge may not sentence a defendant for an entirely

6
Wolfe involved a post-Booker review of a pre-Booker departure; but in
light of the advisory character of the G uidelines after Booker, this Court stated
that it was “informed by, and must take account of, the fact that the district court
would have enhanced discretion upon remand after Booker.’” 435 F.3d at 1296
(quoting United States v. Serrata, 425 F.3d 886, 912 (10th Cir. 2005)). The
principles relied on in Wolfe thus remain applicable to our review of a post-
Booker sentencing decision.

-34-
different, and far more serious, crime. As we previously recognized when the

Guidelines were still mandatory:

To allow upward departure on the grounds that a second-degree
murder was premeditated would permit the sentencing court to treat
the offense of conviction (here, a murder that was not premeditated)
as merely establishing a floor offense level. “[E]ach sentencing
court could depart upward based upon the ‘real offense’ [i.e., a
premeditated murder] whenever the court wished.” Thomas W .
Hutchison, David Yellen, Peter B. Hoffman & Deborah Young,
Federal Sentencing Law & Practice § 2A1.2 comment. (f) (2000) . . .
. Such a result would allow substantially different sentences for the
same crime, a result inconsistent with the a primary goal of the
Guidelines— reducing unwarranted sentencing disparity.

Hanson, 264 F.3d at 996. This principle still has force in the post-Booker world,

not just because it preserves a policy judgment inherent in the Guidelines— itself

an important factor under 18 U.S.C. §3553(a)(5)(A )— but also because it respects

the Sixth Amendment values underlying both Booker and the structural safeguards

of the Guidelines.

There remains the possibility that the district court based M r. Allen’s

sentence not on evidence that he actually committed the crimes of solicitation of

murder and attempted criminal sexual abuse, but on the prospect that he would

comm it these crimes when he got the opportunity. M oviegoers will recognize the

scenario from M inority Report, a film that depicts a world in which would-be

criminals are apprehended and punished for crimes they are predicted to commit,

-35-
before they have the chance actually to commit them. 7 However effective this

approach may be in the world of science fiction, we think it violates the

Constitution’s basic guarantee that a defendant shall not be punished for “Crimes”

unless tried before and convicted by an impartial jury. See U.S. Const. art. III, §

2 (“The Trial of all Crimes, except in cases of Impeachment, shall be by Jury . . .

.”); U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury . . . .”). It may be

tempting to depart from that principle w here, as here, the contemplated deeds are

horrific beyond measure, but it remains a fact that the only crime for which M r.

Allen was charged or convicted was distribution of a controlled substance.

If the government, federal or state, believes M r. Allen committed a crime in

his dealings with M s. A or at the W al-M art, it is free to bring a prosecution for

that conduct. In such a proceeding, M r. Allen would be entitled to put the

government to its proof. Despite the wide latitude Booker granted district courts,

we do not believe it sanctions an end-run around this fundamental process.

Booker’s precursor, Blakely, warned against the unconstitutionality of just such a

system:

Those who would reject Apprendi are resigned to one of two
alternatives. The first is that the jury need only find whatever facts
the legislature chooses to label elements of the crime, and that those
it labels sentencing factors— no matter how much they may increase
the punishment— may be found by the judge. This would mean, for

7
M inority Report (Twentieth C entury Fox and Dreamworks Pictures 2002).

-36-
 example, that a judge could sentence a man for committing murder
even if the jury convicted him only of illegally possessing the firearm
used to commit it— or of making an illegal lane change while fleeing
the death scene. Not even Apprendi’s critics would advocate this
absurd result. The jury could not function as circuitbreaker in the
State’s machinery of justice if it were relegated to making a
determination that the defendant at some point did something wrong,
a mere preliminary to a judicial inquisition into the facts of the crime
the State actually seeks to punish.

Blakely v. Washington, 542 U.S. 296, 306-307 (2004) (first emphasis added and

internal citation omitted). This case presents precisely the scenario the Blakely

Court labeled as too “absurd” to contemplate: that a judge could sentence a man

for attempted sexual abuse or solicitation of murder, even though he was

convicted only of distribution of methamphetamine. W e do not believe that the

Court’s remedial decision in Booker departs so dramatically from the C ourt’s

interpretation of the Sixth Amendment in Blakely that what was absurd in Blakely

is now a reasonable practice after Booker.

If this case had arisen under the mandatory Guidelines, it would be easy to

decide. The Sentencing Commission, acting under the authority of Congress,

incorporated safeguards to ensure that judicial fact-finding under the Guidelines

would not stray too far from the actual offenses for which the defendant was

convicted— whether the offense of conviction or the past offenses that make up

the criminal history calculation. Prominent among these safeguards were the

relatedness principle, the principle that criminal history must be based on prior

convictions, and the principle that departures based upon predicting the likelihood

-37-
that an offender will commit other crimes must be based upon specific

factors— prior criminal convictions and similar unconvicted criminal conduct.

Under this system, the district court could not have set aside the sentencing range

specified for a person who commits M r. Allen’s offense with his criminal history,

and replaced it with the sentence appropriate to a person convicted of crimes w ith

which M r. Allen has never been charged, which a reasonable jury might find he

never committed, and which have no logical connection or relation to his drug

distribution offense.

M any constitutionalists, including the five-Justice majority in the first half

of Booker, believed that even the carefully cabined practice of judicial fact-

finding allowed under the mandatory Guidelines was inconsistent with what they

called “Sixth Amendment substance.” Booker, 543 U.S. at 237. If their approach

were pursued to its logical end, the outcome of this case would likewise be

certain and sure. M r. Allen was convicted based on a plea of guilty in which he

admitted only to the distribution of a certain quantity of methamphetamine.

Under a strict Sixth Amendment regime, such as that advocated by the remedial

dissenters in Booker, M r. Allen’s uncharged, non-drug-related conduct could not

be considered for sentencing purposes.

This case is not so easy, however, under Booker. To some extent— within

the bounds of reasonableness— district courts are now free to sentence in ways not

permitted under the Guidelines, and without benefit of jury fact-finding.

-38-
Sentencing courts are empowered to impose lengthier sentences w hen needed to

protect the public from further crimes of the defendant, 18 U.S.C. §

3553(a)(2)(C). But we should not forget that the purpose of Booker was not to

liberate sentencing courts from statutory constraints. It was to bring our

sentencing system closer to the norms of the Sixth Amendment. If we affirm the

sentence in this case as a legitimate exercise of Booker discretion, we would

move in the opposite direction. Even more than was so under the mandatory

Guidelines system, where the sentencing judge was limited to enhancements

based on conduct related to the offense of conviction and previous convictions, or

to departures based on previous convictions and adult misconduct similar to the

offense, the jury would be “relegated to making a determination that the

defendant at some point did something wrong, a mere preliminary to a judicial

inquisition into the facts of the crime the State actually seeks to punish.” Blakely,

542 U.S. at 307. If that is what the Supreme Court intended by the Booker

decision, it should say so; w e w ill not leap to that interpretation on our own

authority.

In a case involving a variance of this magnitude, we hold that, whatever

latitude a sentencing court may have to adjust a defendant’s sentence in an

exercise of Booker discretion, it may not discard the advisory Guideline range and

impose sentence, instead, on the basis of evidence of the defendant’s uncharged,

unrelated misconduct, whether actually committed or contemplated for the future.

-39-
W e are confident that on remand, the district court can fashion a sentence that

reflects M r. Allen’s actual crime, that takes into account his dangerousness to the

comm unity, and that is sufficient, but not greater than necessary, to achieve the

purposes of sentencing.

III. C ON CLU SIO N

W e VAC ATE the sentencing order of the district court and REM AND for

resentencing.

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