UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1541
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
HENRY LOMBARD, JR.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
Before
Torruella, Chief Judge,
Cyr and Boudin, Circuit Judges.
Jane Elizabeth Lee with whom Ronald Bourget, by Appointment of
the Court, and Bourget and Bourget, P.A. were on briefs for appellant.
F. Mark Terison, Assistant United States Attorney, with whom Jay
P. McCloskey, United States Attorney, was on brief for the United
States.
December 4, 1996
BOUDIN, Circuit Judge. This court earlier upheld the
convictions of defendant Henry Lombard; but the court vacated
the life sentence imposed on one of the counts and remanded
for resentencing, holding that the district court had
authority to depart downward. United States v. Lombard, 72
F.3d 170, 187 (1st Cir. 1995) ("Lombard I"). On remand, the
district court reimposed the original sentence. This new
appeal raises a constitutional claim that Lombard made
earlier but was not decided on the initial appeal.
I.
The facts are set forth at length in Lombard I, 72 F.3d
at 172-76, and only the briefest summary is needed to set the
stage. Lombard and his half-brother, Hubert Hartley, were
tried in Maine state court for murdering two acquaintances as
they slept in Hartley's Maine cabin on Thanksgiving morning
in 1990. Despite something close to eyewitness testimony
from Hartley's girlfriend, both men were acquitted by juries
in separate trials in 1992.
A federal grand jury then indicted Lombard and Hartley
for different crimes relating to the same episode. Lombard
and Hartley were charged with conspiracy, 18 U.S.C. 371,
the conspiracy having multiple objectives: to possess a
firearm in violation of the felon in possession statute, 18
U.S.C. 922(g), to travel interstate to avoid prosecution,
18 U.S.C. 1073, and to remove evidence to prevent seizure,
-2-
-2-
18 U.S.C. 2232(a). Lombard was also charged substantively
under the felon in possession statute and Hartley with aiding
and abetting this crime.
The defendants were tried together on the federal
charges in 1993. Much of the evidence concerned the
commission of the same killings for which they had been
acquitted, the evidence being relevant inter alia to the
flight and removal of evidence charges. Hartley pled guilty
at the close of the government's case. Lombard was convicted
on both of the counts directed against him: conspiracy and
felon-in-possession. Lombard's convictions were sustained in
Lombard I and are not now before us.
At sentencing, Lombard--without regard to the murders--
was subject to a statutory sentence of 15 years to life
because his prior convictions brought him within the armed
career criminal statute. 18 U.S.C. 924(e). Under the
Sentencing Guidelines, again without reference to the
murders, the guideline sentencing range would have been
roughly between 20 and 30 years. U.S.S.G. 4B1.4; id. ch.
5, pt. A.1 However, Lombard had so many criminal history
points over the number needed for the highest criminal
1Although the sentencing took place in September 1994,
the district court applied the November 1990 edition of the
guidelines in order to avoid any ex post facto problems.
United States v. Prezioso, 989 F.2d 52, 53-54 (1st Cir.
1993). All references are to that edition.
-3-
-3-
history category that an upward departure might have been
imposed. U.S.S.G. 4A1.3.
However, the ordinary guideline computation went by the
boards. The felon in possession guideline provides that where
the firearm is used in connection with another offense, the
base level should be that of the "object" offense. U.S.S.G.
2K2.1(c)(2), 2X1.1. The base level for premeditated
murder requires a life sentence. Id. 2A1.1; ch. 5, pt. A.
Because the district court found by a preponderance of the
evidence that Lombard had participated in the premeditated
murders, the court imposed a life sentence on Lombard.
On appeal in Lombard I, this court took note of several
unusual circumstances, including the impact on the sentence
of the uncharged murders, Lombard's prior acquittal of those
murders, the qualitative difference between murder and the
offense of conviction, and the extreme penalty of life
imprisonment. Expressing but not resolving constitutional
concerns, the court then held that these special facts gave
the district court discretionary authority to depart
downward, U.S.S.G. 5K2.0, and remanded to permit the
district court to consider such a departure. 72 F.3d at 184-
85.
At the resentencing, the district court said that it
fully understood (and had understood previously) its
authority to depart downward. But the court remained
-4-
-4-
convinced that "the appropriate sentence in this case is the
sentence that was imposed initially," and it reimposed the
life sentence. Lombard now appeals again, stating that the
single question presented is whether the district court
violated his "due process right to proof beyond a reasonable
doubt" as to the murders when it reimposed the life sentence.
II.
At the threshold, the government asserts, somewhat to
our surprise, that "appellate jurisdiction does not exist."
Its stated reason is that a discretionary decision by the
sentencing judge declining to depart from the guideline range
is not subject to appeal. While the premise is generally
sound, United States v. Romolo, 937 F.2d 20, 22 (1st Cir.
1991), Lombard has explicitly declined to challenge the
refusal to depart; rather, he wants to renew his
constitutional challenge to the use of the murders to
establish the guideline range for his sentence.
There is nothing outre about the distinction. Lombard
is challenging his sentence, and the sentence--as many do--
depended on several determinants: here, the armed career
criminal statute, various decisions made in applying the
guidelines including the finding that Lombard had
participated in the murders, and lastly a discretionary
decision by the district judge not to depart from the
-5-
-5-
guideline range. That this last decision is unreviewable
hardly precludes review of other parts of the equation.
A challenge to the constitutionality of the guidelines
as applied is certainly a permitted subject for an appeal, 18
U.S.C. 3742(a), and presents an issue that we consider de
novo. United States v. Carson, 988 F.2d 80, 82 (9th Cir.),
cert. denied, 510 U.S. 847 (1993). Of course, there might be
a law-of-the-case bar to the appeal, although not a
jurisdictional one, if this court had fully rejected the
constitutional claims in Lombard I. But Lombard I plainly
said that constitutional concerns did exist but might be
mooted by the remand. 72 F.3d at 184-85.
For reasons we will address in due course, Lombard does
not place much weight on the element in this case that would
strike non-lawyers as the most troubling: that he has been
given a life sentence based on a finding that he committed
the two murders of which he was earlier acquitted. Instead,
he argues that the district court erred by using a
"preponderance of the evidence" standard to determine that he
had in fact committed the prior murders and then by using
this finding to sentence Lombard as if he had committed the
murders.
The framework for federal sentencing is familiar.
Departures aside, the guidelines require the district court
to calculate the guideline range based not only on the
-6-
-6-
conduct comprising the federal crime of conviction but also
on "relevant" albeit "uncharged" conduct--here, the murders--
that the sentencing court finds actually occurred in
connection with that crime. U.S.S.G. 1B1.3; 2K2.1(c)(2).
And ordinarily the facts at sentencing need be proved only by
a preponderance of the evidence. McMillan v. Pennsylvania,
477 U.S. 79, 91 (1986); United States v. Carrozza, 4 F.3d 70,
80-81 (1st Cir. 1993), cert. denied, 114 S. Ct. 1644 (1994).
The use of uncharged conduct at sentencing stems from
the longstanding view that the judge should employ all
relevant information that helps to decide where, within the
broad range usually fixed by statute, this defendant should
be sentenced. United States v. Tucker, 404 U.S. 443, 446
(1972); 18 U.S.C. 3577. As for the lower standard of
proof, courts sometimes say that "guilt" is the crucial event
that alone requires proof beyond a reasonable doubt, and
sometimes that more procedural constraints would bog down
sentencing. See, e.g., McMillan, 477 U.S. at 92 n.8.
In the face of historical practice and judicial
precedent, a frontal attack on these practices would be
difficult, and Lombard does not attempt it. Rather, quoting
"the tail that wags the dog" metaphor in McMillan, 477 U.S.
at 88, Lombard says that due process requires the use of a
"beyond a reasonable doubt" standard in cases where, as here,
the finding that the uncharged crime occurred has so severe
-7-
-7-
an effect on the sentence. He adds that in view of the
jury's prior acquittal, there must be a reasonable doubt in
this case.
This is not an argument that would likely have had much
success prior to the guidelines, cf. Patterson v. New York,
432 U.S. 197, 214 (1977), but the guidelines provide some
basis for reconsidering the issue. In the past, uncharged
conduct was merely a background fact, like the defendant's
criminal record or his habit of kicking his dog, that a judge
might consider in making the highly discretionary, and
largely ad hoc, decision as to sentence. The guidelines have
altered matters in at least one significant respect.
We now have a regime that, aiming to provide equal
treatment, requires the sentencing judge to make findings as
to relevant uncharged conduct and absent a departure requires
the judge to sentence on that basis within a very narrow
range. See 18 U.S.C. 3553(b); U.S.S.G. 1B1.1, 1B1.2,
5C1.1(a). Thus a finding of an uncharged crime at
sentencing, and the compulsory fixing of the sentence on that
basis, makes the sentencing itself now look somewhat more
like a conviction for that uncharged crime--but without the
benefit of the criminal standard of proof beyond a reasonable
doubt or, for that matter, an indictment or jury trial on
that crime.
-8-
-8-
Most courts have been less, or not at all, troubled by
use of the uncharged conduct that has only a limited effect
on the sentence or is qualitatively the same crime as the
offense of conviction (such as other related drug sales) or
both. See, e.g., United States v. Wright, 873 F.2d 437, 441-
42 (1st Cir. 1989). As the impact and qualitative difference
grow, courts become more concerned. The reference in
McMillan, 477 U.S. at 88, to the risk of the "tail"
(sentencing) "wagging the dog" (the substantive offense) has
often been taken to suggest that the Supreme Court might
endorse some outer limit.2
The guidelines' substantive provisions were, in the
main, intended to impose sentencing results very much like
those that prevailed in the pre-guidelines era. See Stephen
Breyer, The Federal Sentencing Guidelines and the Key
Compromises Upon Which They Rest, 17 Hofstra L. Rev. 1, 8
(1988). The pertinent change, as we have noted, is that the
guidelines are compulsory. But for Lombard the latter
element has been largely removed by our decision in Lombard
I, which restored to the district court its pre-guideline
discretion to decide whether and how far to give weight to
the murders.
2The reference was in fact directed to a problem rather
different than our own, namely, the alleged danger that a
state legislature might "tailor[]" its substantive crime to
shift into the sentencing phase an element that was
traditionally part of the crime. Id.
-9-
-9-
True, the district court may (and here did) still choose
to give weight to the uncharged offenses in fixing the
sentence within the statutory range if it finds by a
preponderance of evidence that they occurred; but this was
always permitted by longstanding practice and explicit
Supreme Court authority. Wisconsin v. Mitchell, 508 U.S.
476, 485 (1993); Williams v. New York, 337 U.S. 241, 246
(1949). There is no indication that the Supreme Court has
altered its position on this issue. If anything, McMillan
reinforced that position in upholding a mandatory sentence
enhancement based on uncharged conduct.
Some may think that even the status quo ante is at odds
with due process and that uncharged conduct should never be
considered without criminal-trial safeguards. But the choice
then may be, in substance, between turning the sentencing
into a new criminal trial or ignoring provable facts that
most people think relevant in deciding who deserves more and
who less punishment. See Breyer, supra, at 9-12. If the
Constitution is now taken to forbid "real offense" sentencing
unless criminal-trial procedures are applied, that ruling
must come from a higher court.
The only circuit court squarely to impose a higher
standard of proof in certain sentencings is the Third
Circuit. There, in United States v. Kikumura, 918 F.2d 1084
(3d Cir. 1990), the court held that an upward departure due
-10-
-10-
to uncharged conduct should be based on clear and convincing
evidence where the finding had an extraordinary impact--
there, "a twelve-fold, 330-month departure from the median of
an applicable sentencing range." Id. at 1102. This ruling
was premised on a reading of the guidelines informed by due
process concerns and has been much discussed but generally
not followed. See United States v. Masters, 978 F.2d 281,
286 (7th Cir. 1992).
Lombard does not urge this halfway house in the present
case. In truth, most judges are unlikely to see a great gulf
between a preponderance and "clear and convincing" evidence.
Based upon the sentencing transcripts and the trial evidence
in this case, the district court would probably find, as to
Lombard, that the latter standard had been amply met. By
contrast, the "beyond a reasonable doubt" standard is widely
regarded as making a substantial difference and, for this
very reason, courts have been very cautious in extending it
to new realms. Cf. Masters, 978 F.2d at 286-87.
In all events, given Supreme Court precedents, we
conclude that the Constitution does not require a heightened
proof standard in a case such as ours. Policy is a different
matter: on this score, one can argue about imposing greater
safeguards for sentencing decisions that severely affect the
defendant. But if you asked trial judges, most would be
likely to say that what they mainly needed was more latitude
-11-
-11-
and fewer constraints. Cf. Koon v. United States, 116 S. Ct.
2035, 2046-47 (1996); United States v. Rivera, 994 F.2d 942,
951-52 (1st Cir. 1993).
III.
Finally, we think it essential to say a word about the
matter that troubled the court in Lombard I but that Lombard
has chosen not to stress, at least in his legal argument:
the use of acquitted conduct to enlarge his sentence. This
certainly accorded with the guidelines. In their present
form they draw no distinction between relevant conduct that
is uncharged and relevant conduct of which the defendant has
actually been acquitted. Absent a departure, all must be
given the weight assigned by the guidelines. U.S.S.G.
1B1.3; United States v. Mocciola, 891 F.2d 13, 16 (1st Cir.
1989). The question is why.
The explanation for including acquitted conduct has the
usual charm of lawyer's logic. It is said that there is no
technical inconsistency between a prior acquittal and the use
of the very same acquitted conduct at sentencing to enlarge
the sentence, because the jury merely found that the
defendant had not been proved guilty "beyond a reasonable
doubt"; the sentencing judge, by contrast, finds by a
preponderance of the evidence that the acquitted conduct did
occur. See, e.g., United States v. Isom, 886 F.2d 736, 738 &
n.3 (4th Cir. 1989).
-12-
-12-
This syllogism has been expressly adopted by the Supreme
Court in another context, Dowling v. United States, 493 U.S.
342, 349 (1990), and is regularly followed by the lower
courts, including ours, in sentencing and elsewhere. See,
e.g., Rossetti v. Curran, 80 F.3d 1, 5-6 (1st Cir. 1996).
Presumably, it is because of these precedents, emphasized in
Lombard I, that Lombard has not challenged the syllogism or
stressed the fact that the uncharged conduct in this case is
also acquitted conduct. As a matter of constitutional law,
the syllogism is "rational" enough (as well as binding upon
us).
Yet, many judges think that the guidelines are
manifestly unwise, as a matter of policy, in requiring the
use of acquitted conduct in calculating the guideline range.
See United States v. Lanoue, 71 F.3d 966, 984 (1st Cir.
1995). A lawyer can explain the distinction logically but,
as a matter of public perception and acceptance, the result
can often invite disrespect for the sentencing process. This
threat is aggravated insofar as the guidelines compel--rather
than merely permit--the practice.
Certainly situations exist where the sentencing court
might persuasively explain the use of acquitted conduct. For
example, a defendant might be acquitted because of reliable
evidence suppressed by a Fourth Amendment exclusionary rule
or the defendant might later be shown to be guilty by co-
-13-
-13-
conspirator testimony not available at the time of the
earlier trial. But the present regime commands that
acquitted conduct be taken into account and severely limits
the court's ability to disregard it. That a practice is
constitutional does not make it wise.
Affirmed.
-14-
-14-