United States Court of Appeals
For the First Circuit
No. 01-1452
01-1453
UNITED STATES OF AMERICA,
Appellee,
v.
JACK WADE RANDALL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lynch and Lipez, Circuit Judges,
and Woodlock*, District Judge
Wayne R. Foote with whom Foote & Temple was on brief for
appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Paula D. Silsby, United States Attorney, was on brief for the
appellee.
__________________
April 19, 2002
__________________
_______________
*Of the District of Massachusetts, sitting by designation.
WOODLOCK, District Judge. In Apprendi v. New Jersey, 530
U.S. 466 (2000), the Supreme Court observed that "[i]f a defendant
faces punishment beyond that provided by statute when an offense is
committed under certain circumstances but not others, it is obvious
that both the loss of liberty and the stigma attaching to the
offense are heightened." Id. at 484. In order to guard against
erroneous loss of liberty and imposition of stigma, the Court held
that "[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt." Id. at 490.
Apprendi has spawned a variety of challenges from
defendants whose sentences have been affected by judicial
factfinding against standards less demanding than proof beyond a
reasonable doubt. We have, however, concluded that Apprendi "does
not apply to guideline findings . . . that increase the defendant's
sentence, but do not elevate the sentence to a point beyond the
lowest applicable statutory maximum" that is subject to factfinding
by a jury according to a reasonable doubt standard. United States
v. Caba, 241 F.3d 98, 101 (1st Cir. 2001).
The sentence in this case was well below the lowest
applicable statutory maximum but was in part created using judicial
factfinding regarding a statute which carried the potential for a
ten-year increase in that maximum penalty. The defendant seeks to
unbundle the joint concern recognized in Apprendi for loss of
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liberty and stigma by arguing that--while Caba concerns itself with
guideline findings and loss of liberty--when factfinding under a
statutory enhancement scheme is undertaken, separate consideration
must be given to the resultant stigma. Absent a waiver of jury
trial by plea of guilty to the specific statute, such stigma may
only attach, he argues, when there is an opportunity for a jury to
find the predicate facts beyond a reasonable doubt. We reject the
defendant's effort to deconstruct the teaching of Apprendi and
thereby to limit the reach of Caba.
I.
Jack Wade Randall was indicted in June 2000 for
obstructing correspondence in violation of 18 U.S.C. § 1702. The
offense carried a maximum penalty of five years in prison. While
he was on pre-trial release, he was charged in connection with an
August 2000 drug conspiracy in violation of 21 U.S.C. § 846. The
lowest maximum penalty for that offense was twenty years in prison.
Randall pled guilty to both the mail obstruction and the
drug conspiracy charges. When the draft presentence report
proposed an increase in his base offense level by application of
U.S.S.G. § 2J1.7, Randall objected, citing Apprendi. Section 2J1.7
directs such an increase when 18 U.S.C. § 3147 applies. In
addition, § 3147 requires that a consecutive sentence be imposed--
which could raise the maximum sentence by as much as ten years--if
a defendant is found to have committed an offense while on pretrial
release.
At sentencing the district judge calculated the guideline
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range after including the three level U.S.S.G. § 2J1.7 enhancement.
As a consequence, the combined adjusted offense level was 16.
When Randall was assigned a criminal history category of IV, the
resultant guideline range for imprisonment was 33 to 41 months and
the guideline for a term of supervised release was determined to be
not more than three years. Relying upon Caba, the District Judge
rejected the defendant's Apprendi objection and imposed a sentence
of 41 months in prison, calculated as 35 months concurrent on the
two underlying counts of conviction to be followed by a six-month
consecutive sentence because of § 3147. A period of three years
supervised release to be served concurrently on each of the
underlying conviction counts was also imposed.
II.
Section 3147, entitled "Penalty for an offense committed
while on release," is designed to deter the commission of
additional offenses by a defendant out on bail. It provides that
A person convicted of an offense committed
while released under this chapter [Chapter 207
- Release and Detention Pending Judicial
Proceedings] shall be sentenced, in addition
to the sentence prescribed for the offense
to--
1) a term of imprisonment of not
more than ten years if the offense
is a felony;
. . .
A term of imprisonment imposed under this
section shall be consecutive to any other
sentence of imprisonment.
18 U.S.C. § 3147.
The directives of § 3147 have been assimilated in the
Sentencing Guidelines through U.S.S.G. § 2J1.7, which provides that
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"[i]f an enhancement under 18 U.S.C. § 3147 applies, add 3 levels
to the offense level for the offense committed while on release as
if this section were a specific offense characteristic contained in
the offense guideline for the offense committed while on release."
The Sentencing Commission, in its Background Commentary
to § 2J1.7, characterizes § 3147 as an enhancement provision "and
not a count of conviction." Application Note 2 directs that in
order to comply with the statute, the sentencing court "should
divide the sentence on the judgment form between the sentence
attributable to the underlying offense and the sentence
attributable to the enhancement" with a view toward ensuring that
the "total punishment" is consistent with the guideline range for
the underlying offenses of conviction.
A. Did § 3147 Improperly Enhance the Sentence?
The Sentencing Commission's assimilation of § 3147 in
U.S.S.G. § 2J1.7 effectively moots any Apprendi challenge to the
application of § 3147. The Application Notes encourage sentencing
judges to sentence within the guideline range for the base offense
of conviction by using a § 3147 enhancement only for purposes of
calibrating where, within the underlying conviction count guideline
range, a sentence below the applicable conviction count maximum may
be imposed. The district judge in this case carefully followed
this protocol by imposing a total sentence within the guideline
range constructed of concurrent sentences within the guideline
range for the base offense level, enhanced--but still within the
guideline range--by a consecutive term for § 3147.
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To be sure, there is factfinding being undertaken in this
setting by the district judge, although here it is hardly disputed
factfinding. The applicability of § 3147 is plain on the docket
itself, which reflects the conviction for a drug crime committed
while the defendant was on release on the mail obstruction charge.
Indeed this factfinding may fairly be characterized as literally
within the express exception recognized in Apprendi for "the fact
of a prior conviction." 530 U.S. at 490. See United States v.
Moore, No. 01-2307, Slip op. at 9 (1st Cir. Apr. 12, 2002) ("we
have ruled with a regularity bordering on the monotonous that . .
. the rationale of Apprendi does not apply to sentence-enhancement
provisions based upon prior criminal convictions.") In any event,
such judicial factfinding involves precisely the kind of tailoring
of a sentence within the lowest maximum sentence for the charge of
conviction which this court has consistently found does not
implicate the practical concerns of Apprendi.
That the guideline calculations mirror a statutory enhancement
provision does not set the sentencing in this case apart from other
sentencing structures, for example where the guidelines take into
consideration the drug weights--a matter which can affect the
maximum sentence both by statute, 21 U.S.C. § 841(b)(1), and by
guideline, U.S.S.G. § 2D1.11(d). There, also, judicial factfinding
is employed against a preponderance standard; but, so long as the
calculations result in a sentence below the lowest maximum sentence
for which there was an opportunity for jury fact finding, Apprendi
is not offended. See, e.g., United States v. Collazo-Aponte, 281
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F.3d 320, 324-25 (1st Cir. 2002); United States v. Lopez-Lopez, 282
F.3d 1, 22-23 (1st Cir. 2002); United States v. Robinson, 241 F.3d
115, 119 (1st Cir. 2001); United States v. Houle, 237 F.3d 71, 80
(1st Cir. 2001). In short, as we observed in Caba, "even after
Apprendi, the existence vel non of sentencing factors that boost a
defendant's sentence but do not trip a new statutory maximum remain
grist for the district judge's mill under a preponderance-of-the-
evidence standard." 241 F.3d at 101.
B. Did § 3147 Improperly Enhance the Stigma?
The defendant's argument that stigma is increased by a
conviction to which § 3147 applies is an effort to isolate and
emphasize an aspect of criminal sentencing which as a practical
matter is reflected in the actual sentence itself. To be sure, a
finding of culpability for separate crimes may be said to enhance
the stigma arising from a conviction merely for one. Cf. Ball v.
United States, 470 U.S. 856, 865 (1985) (second conviction
"certainly carries the societal stigma accompanying any
conviction."); United States v. Rivera-Martinez, 931 F.2d 148, 152-
53 (1st Cir. 1991). But § 3147 is not a count of conviction, as
the Background Commentary to U.S.S.G. § 2J1.7 observes.
Apprendi's concern with "stigma" is expressly, 530 U.S.
at 484, derived from In re Winship, 397 U.S. 358 (1970), which
grounded the importance of imposing the burden upon the government
of proving each element of an offense beyond a reasonable doubt
upon the twin interests of "the good name and freedom of every
individual." Id. at 364. As the court observed in Mullaney v.
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Wilbur, 421 U.S. 684 (1975), which deployed Winship to hold
unconstitutional the requirement in Maine's homicide statute that
a defendant prove heat of passion by a preponderance of the
evidence in order to reduce an offense from murder to manslaughter,
the issue is not merely one of guilt or innocence but also "the
degree of criminal culpability." Id. at 697-98. The relevant
interests throughout are measured by the authorized penalty. In
this connection, the Mullaney court noted that "[t]he penalty
authorized by the law of the locality may be taken as a gauge of
its social and ethical judgments." Id. at 700 n.27 (citations and
quotations omitted). Alternatively stated, the penalty is the
gauge of the stigma attached to a criminal judgment in the absence
of a separate count of conviction.
Here, the defendant maintains that there is another--more
specific--measure of stigma that is reflected in the classification
of offenses by 18 U.S.C. § 3559. Under the hierarchy of that
classification scheme, the highest level is a Class A felony, for
which the maximum term of imprisonment is life imprisonment or the
death penalty; a Class B felony is one for which the maximum term
of imprisonment is 25 years or more and a Class C felony is one for
which the maximum term of imprisonment is less than 25 years but l0
or more years. The defendant maintains that because his sentence
must include a term of imprisonment under § 3147, which provides
for as much as 10 years additional punishment, his felony
conviction is effectively bumped up from a Class C felony for the
twenty year basic drug maximum, 21 U.S.C. § 841(b)(1)(C), to a
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Class B felony, when the ten additional years generated by § 3147
are added.
This highly refined argument was not pressed in these
terms before the district judge. Indeed, the presentence report
proceeded from the assumption that the defendant's sentencing--even
with the § 3147 enhancement--was for a Class C felony when it
identified the statutory maximum for supervised release to be no
more than three years. PSR ¶ 69. That is the maximum for a Class
C felony. 18 U.S.C. § 3583(b)(2). If a Class B felony had been
involved, the supervised release maximum would have been not more
than five years. Id. § 3583(b)(1). The presentence report also did
not aggregate the two counts of conviction; if it had, they would,
independently of § 3147, have totaled 25 years imprisonment, or at
the low end of a Class B felony classification under 18 U.S.C.
§ 3559. This choice not to aggregate for purposes of § 3159
reflects the direction of the Commentary to U.S.S.G. § 5G1.2 "that
even in the case of a consecutive term of imprisonment . . . any
term of supervised release imposed is to run concurrently with any
other term of supervised release imposed. See 18 U.S.C. §
3624(e)." In short, Caba governs this point as well. There was no
increase in the statutory maximum for the defendant's term of
supervised release beyond what constitutes the lowest maximum level
subject to factfinding by a jury against a reasonable doubt
standard.
III.
The sentence imposed upon the defendant was within the
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relevant sentencing guidelines and did not exceed the lowest
applicable statutory maximums for the underlying offenses of
conviction. Consequently, the judgments are AFFIRMED.
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