United States v. Dare

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 04-30202
Plaintiff-Appellee,
v.  D.C. No.
CR-03-00020-DWM
STEVEN DOUGLAS DARE,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, Chief District Judge, Presiding

Argued and Submitted
February 9, 2005—Seattle, Washington

Filed September 23, 2005

Before: Diarmuid F. O’Scannlain, Edward Leavy, and
Carlos T. Bea, Circuit Judges.

Opinion by Judge Leavy;
Dissent by Judge Bea

13619
13622 UNITED STATES v. DARE

COUNSEL

Michael Donahoe, Federal Defenders of Montana, Helena,
Montana, for the defendant-appellant.

Paulette L. Stewart, United States Attorney’s Office, Helena,
Montana, for the plaintiff-appellee.

OPINION

LEAVY, Circuit Judge:

Stephen Douglas Dare appeals his statutory mandatory
minimum ten-year sentence imposed pursuant to 18 U.S.C.
§ 924(c) for discharging a firearm during the course of a drug
trafficking crime. He contends that he was sentenced in viola-
tion of the Sixth Amendment and that the district court erred
in using a preponderance of the evidence standard when it
found that he discharged a firearm. We hold that Dare’s man-
datory minimum sentence imposed through judicial factfind-
ing utilizing a preponderance of the evidence standard does
not violate the Sixth Amendment, pursuant to Harris v.
United States, 536 U.S. 545 (2002). We affirm the judgment.

BACKGROUND

On April 23, 2003, Steven Dare met several coworkers at
a local bar and he drank alcohol for several hours. He stated
that he was “pretty well trashed.” His younger friend Casey
arrived in the bar with a person that Dare did not know. Casey
 UNITED STATES v. DARE 13623
explained that this person wanted to buy some marijuana.
Unbeknownst to both Dare and Casey, the buyer was a drug
informant working for the Montana drug task force.

The trio of Dare, Casey, and the informant drove to Dare’s
home. Dare sold the informant a bag of marijuana for $200.
Dare then asked if they would like to smoke some marijuana
with him, but they declined. Dare then went into the next
room and brought back his loaded shotgun. Dare stated that
he “didn’t want any badges coming back at me for selling
drugs.” Dare handed the shotgun to his friend Casey and
asked him if he wanted to shoot it outside. Casey had been at
Dare’s home and had discharged the shotgun with him in the
past, but, on this occasion, Casey declined to shoot the shot-
gun. Dare then took the shotgun to his front door, opened the
door, and discharged the shotgun in the air, aiming over his
wood pile.

A federal grand jury filed a four-count indictment. Counts
II and III, to which Dare later plead guilty, alleged:

Count II: [That Dare] . . . in furtherance of a drug
trafficking crime, to-wit: possession with intent to
distribute and distribution of marijuana in violation
of 21 U.S.C. § 841(a)(1), did possess a firearm, to-
wit: a Winchester 12-gauge pump shotgun, Defender
Model, serial number L2146716, in violation of 18
U.S.C. § 924(c);

Count III: [That Dare] . . . did knowingly, inten-
tionally, and unlawfully, possess with intent to dis-
tribute and distribute controlled substances, to-wit:
12 grams or more of a mixture of substances con-
taining marijuana, in violation of 21 U.S.C.
§ 841(1)(a).

The statute under which Dare was indicted on Count II, 18
U.S.C. § 924(c), provides in relevant part:
13624 UNITED STATES v. DARE
(c)(1)(A) Except to the extent that a greater mini-
mum sentence is otherwise provided by this subsec-
tion or by any other provision of law, any person
who, during and in relation to any crime of violence
or drug trafficking crime (including a crime of vio-
lence or drug trafficking crime that provides for an
enhanced punishment if committed by the use of a
deadly or dangerous weapon or device) for which the
person may be prosecuted in a court of the United
States, uses or carries a firearm, or who, in further-
ance of any such crime, possesses a firearm, shall, in
addition to the punishment provided for such crime
of violence or drug trafficking crime —

(i) be sentenced to a term of imprisonment
of not less than 5 years;

(ii) if the firearm is brandished, be sen-
tenced to a term of imprisonment of not less
than 7 years; and

(iii) if the firearm is discharged, be sen-
tenced to a term of imprisonment of not less
than 10 years.

(c)(1)(B) If the firearm possessed by a person con-
victed of a violation of this subsection —

(i) is a short-barreled rifle, short-barreled
shotgun, or semiautomatic assault weapon,
the person shall be sentenced to a term of
imprisonment of not less than 10 years; or

(ii) is a machinegun or a destructive
device, or is equipped with a firearm
silencer or firearm muffler, the person shall
be sentenced to a term of imprisonment of
not less than 30 years.
 UNITED STATES v. DARE 13625
(c)(1)(C) In the case of a second or subsequent con-
viction under this subsection, the person shall —

(i) be sentenced to at term of imprisonment
of not less than 25 years; and

(ii) if the firearm involved is a machinegun
or a destructive device, or is equipped with
a firearm silencer or firearm muffler, be
sentenced to imprisonment for life.

18 U.S.C. § 924(c)(1)(A)-(C) (2004).

Neither “brandish[ing]” nor “discharg[ing]” the firearm, 18
U.S.C. § 924(c)(1)(A)(ii), (iii), was alleged in the indictment.

Dare entered a plea of not guilty at his arraignment. He
later stated that he had no recollection of discharging the shot-
gun until he was informed of that fact when the magistrate
judge read the indictment to Dare from the bench.

Dare moved to change his plea from not guilty to guilty. In
his motion he stated:

[T]he parties have only recently recognized that
under Harris v. United States, 122 S. Ct. 2406
(2002) , the court determines whether a sentence
under 18 U.S.C. § 924(c) [Count II] should be
enhanced for brandishing or discharging a firearm.
. . . [D]efendant admits he possessed the shotgun
during the drug crime but disputes that he either
brandished or discharged it, which are issues for this
Court at the time of sentencing under Harris, supra.

Dare acknowledged in his plea hearing that he knowingly
possessed the shotgun in furtherance of the crime of posses-
sion with intent to distribute marijuana. Dare stated, when
13626 UNITED STATES v. DARE
questioned by the district court, that the maximum penalty he
faced under the § 924(c) charge was life imprisonment.

Dare was sentenced on April 30, 2004. Dare argued that for
the government to establish that he had brandished or dis-
charged the shotgun in relation to the drug transaction, the
government had to satisfy a standard of proof beyond a rea-
sonable doubt, or, at a minimum, a clear and convincing stan-
dard of proof. His lawyer called several witnesses, including
Dare and his two adult sons, to testify about Dare’s level of
intoxication and the details regarding his use of the shotgun.
Dare testified that he was highly intoxicated and that the shot-
gun was discharged after the drug transaction had been com-
pleted.

Regarding the sentence under § 924(c), the district court
judge stated that he “had no discretion here,” and further
stated:

I find it outrageous, just like his sons do, that this
man, for 12 grams of marijuana, is going to spend
ten years of his life in a federal prison of the United
States. And at the very most, I could say, well, seven
years is the best deal, and that borders on outra-
geous. But that’s what the law is.

....

You have a man who’s lived in a community for 25
years, who is recognized as hard working, honest,
reliable, who would give the shirt off of his back to
anybody, who has given two sons to this country to
defend this country, and we’re going to lock him up
for ten years and that’s not outrageous? I think it is.
So I will be a part of the outrage. Unwillingly. But
I’m going to do it.

The district court found that the government established by
a preponderance of the evidence that the shotgun “was dis-
 UNITED STATES v. DARE 13627
charged in conjunction with the drug transaction.” The court
also concluded, however, that “if the burden of proof is clear
and convincing,” the government’s proof failed. The court
noted that Dare was clearly intoxicated and was unaware that
he used the gun until he was advised of that fact at his
arraignment. The court found there was no clear and convinc-
ing evidence (1) that Dare had intent to intimidate or threaten
the two young men with the shotgun; (2) that the two men
were threatened by the discharge of the shotgun; or (3) that
Dare intended the discharge of the shotgun to be a part of the
drug transaction.

The district court sentenced Dare to a mandatory minimum
of ten years under 18 U.S.C. § 924(c)(1)(A)(iii) for discharg-
ing a gun in conjunction with a drug transaction. The district
court sentenced Dare to zero months imprisonment for the
possession of marijuana.1

Dare filed a Notice of Appeal on May 6, 2004. In his brief,
Dare argued that the district court should have employed a
higher standard of proof at sentencing and that his sentence
violated Apprendi v. New Jersey, 530 U.S. 466 (2000) and
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).
Blakely was decided by the Supreme Court in June 2004, after
Dare was sentenced in April 2004.

We review de novo whether the district court applied the
correct standard of proof. See United States v. Banuelos, 322
F.3d 700, 704 (9th Cir. 2003). Because Dare raised his objec-
tion under Apprendi in the district court, we review his
Apprendi claim de novo. See United States v. Smith, 282 F.3d
758, 771 (9th Cir. 2002).
1
Dare had no prior criminal convictions.
13628 UNITED STATES v. DARE
ANALYSIS

A. Sixth Amendment Protections

[1] Dare argues that he was sentenced in violation of the
Sixth Amendment constitutional protections articulated in
Apprendi, then in Blakely, and most recently in United States
v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005). In Apprendi,
the Court held that “[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the pre-
scribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Apprendi, 530 U.S. at
490. In Blakely, the Court stated, “Our precedents make clear,
however, that the ‘statutory maximum’ for Apprendi purposes
if the maximum sentence a judge may impose solely on the
basis of the facts reflected in the jury verdict or admitted by
the defendant.”. Blakely, 124 S. Ct. at 2537 (emphasis in orig-
inal). In Booker, the Court stated:

Accordingly, we reaffirm our holding in Apprendi:
Any fact (other than a prior conviction) which is
necessary to support a sentence exceeding the maxi-
mum authorized by the facts established by a plea of
guilty or a jury verdict must be admitted by the
defendant or proved to a jury beyond a reasonable
doubt.

Booker, 125 S. Ct. at 756.

The government maintains that Dare’s sentence did not vio-
late the Sixth Amendment and should be affirmed pursuant to
the holding in Harris v. United States, 536 U.S. 545 (2002).
The defendant in Harris sold a small quantity of marijuana in
his pawnshop with an unconcealed pistol at his side. Harris
was arrested for violating drug and firearms laws, including
18 U.S.C. § 924(c)(1)(A). The indictment, similar to the
indictment in this case, said nothing of “brandishing” a fire-
arm and made no reference to subsections of the statute. Har-
 UNITED STATES v. DARE 13629
ris was found guilty at a bench trial of knowingly carrying a
firearm during and in relation to a drug trafficking crime. At
sentencing, Harris disputed that he brandished the gun, just as
Dare disputed that he brandished or discharged the gun in the
present case. The district court in Harris found, by a prepon-
derance of the evidence, that Harris had brandished a gun and
sentenced him to seven years. Harris, 536 U.S. at 551. Harris
maintained that under Jones v. United States, 526 U.S. 227
(1999) (federal carjacking statute interpreted as setting out
elements of separate offenses), brandishing is a separate
offense for which he had not been indicted. Harris also main-
tained that even if brandishing is a sentencing factor, a jury
must find this factor beyond a reasonable doubt. Id.

[2] The Court, in a plurality opinion, stated,
“§ 924(c)(1)(A) defines a single offense” and “[the statute]
regards brandishing and discharging as sentencing factors to
be found by the judge, not offense elements to be found by
the jury.” Harris, 536 U.S. at 556. The Court distinguished
Apprendi on the basis that the judge-found facts in Apprendi
extended the sentence beyond the statutory maximum, while
judge-found facts in Harris only increased the defendant’s
minimum sentence, and did not affect the maximum sentence.
Harris, 536 U.S. at 562-65. The Harris plurality distinguished
Apprendi, stating:

[O]nce the jury finds all those facts, Apprendi says
that the defendant has been convicted of the crime;
the Fifth and Sixth Amendments have been
observed; and the Government has been authorized
to impose any sentence below the maximum. That is
why, as Apprendi noted, “nothing in this history sug-
gests that it is impermissible for judges to exercise
discretion — taking into consideration various fac-
tors relating both to offense and offender — in
imposing a judgment within the range.” Id. at 481,
120 S. Ct. 2348. . . . [T]he judicial factfinding does
not “expose a defendant to a punishment greater than
13630 UNITED STATES v. DARE
that otherwise legally prescribed.” Apprendi, [530
U.S.] at 483, n.10, 120 S. Ct. 2348.

Harris, 536 U.S. at 565 (emphasis in original).

The Harris plurality reaffirmed the holding in McMillan v.
Pennsylvania, 477 U.S. 79 (1986), that a state legislature may
specify the condition for a mandatory minimum sentence for
possession of a firearm without making the condition an ele-
ment of the crime. See Harris, 536 U.S. at 566-67. The Harris
plurality concluded:

Reaffirming McMillan and employing the approach
outlined in that case, we conclude that the federal
provision at issue, 18 U.S.C. § 924(c)(1)(A)(ii), is
constitutional. Basing a 2-year increase in the defen-
dant’s minimum sentence on a judicial finding of
brandishing does not evade the requirements of the
Fifth and Sixth Amendments. Congress “simply took
one factor that has always been considered by sen-
tencing courts to bear on punishment . . . and dic-
tated the precise weight to be given that factor.”
McMillan, 477 U.S. at 89-90, 106 S.Ct. 2411. That
factor need not be alleged in the indictment, submit-
ted to the jury, or proved beyond a reasonable doubt.

Harris, 536 U.S. at 568.

Dare argues that Harris should be distinguished because
Harris’s minimum was increased by two years, from five to
seven years, based upon the court’s determination that Harris
brandished the firearm, whereas his minimum doubled from
five to ten years for discharge of the firearm, thereby raising
constitutional concerns. We cannot limit Harris based upon
the harshness of the sentence imposed under § 924(c). The
Harris plurality stated:

The Fifth and Sixth Amendments ensure that the
defendant “will never get more punishment than he
 UNITED STATES v. DARE 13631
bargained for when he did the crime,” but they do
not promise that he will receive “anything less” than
that. Apprendi, [503 U.S.] at 498, 120 S.Ct. 2348
(Scalia, J., concurring). If the grand jury has alleged,
and the trial jury has found, all the facts necessary to
impose the maximum, the barriers between govern-
ment and defendant fall. The judge may select any
sentence within the range, based on facts not alleged
in the indictment or proved to the jury — even if
those facts are specified by the legislature, and even
if they persuade the judge to choose a much higher
sentence than he or she otherwise would have
imposed. That a fact affects the defendant’s sen-
tence, even dramatically so, does not by itself make
it an element.

Harris, 536 U.S. at 566.

[3] Thus, under Harris, the district court could have sen-
tenced Dare to any sentence within the range of five years to
life without further fact finding. According to Harris, judge-
found facts that increase a sentence under § 924(c) are not in
the jury’s domain because the findings do not increase the
possible sentence beyond the statutory maximum of life
imprisonment. See Harris, 536 U.S. at 557; 536 U.S. 578-79
(Thomas, J., dissenting) (“[T]he constitutional analysis
adopted by the plurality would hold equally true if the manda-
tory minimum for a violation of § 924(c)(1) without brandish-
ing was five years, but the mandatory minimum with
brandishing was life imprisonment.”).

Justice Breyer observed in his concurring opinion in Harris
that one cannot easily distinguish Apprendi from Harris “in
terms of logic.” Harris, 536 U.S. at 569. Justice Thomas
observed in his dissenting opinion in Harris that the fact that
a defendant brandished a firearm “indisputably alters the pre-
scribed range of penalties to which he is exposed under 18
U.S.C. § 924(c)(1)(A).” Harris, 536 U.S. at 575 (Thomas, J.,
13632 UNITED STATES v. DARE
dissenting). Justice Thomas noted, “Whether one raises the
floor or raises the ceiling it is impossible to dispute that the
defendant is exposed to greater punishment than is otherwise
prescribed.” Id. at 579. He stated:

Looking to the principles that animated the decision
in Apprendi and the bases for the historical practice
upon which Apprendi rested (rather than the histori-
cal pedigree of mandatory minimums), there are no
logical grounds for treating facts triggering manda-
tory minimums any differently than facts that
increase the statutory maximum. In either case the
defendant cannot predict the judgment from the face
of the felony, see [Apprendi], 530 U.S. at 478-79,
120 S.Ct. 2348, and the absolute statutory limits of
his punishment change, constituting an increased
penalty.

Id. at 579-80.

We agree that Dare could not predict his punishment from
the face of his indictment or from the facts he admitted in his
plea. For most sentences imposed under § 924(c)(1), the mini-
mum sentence is the maximum sentence, even though the
defendant is exposed to a possible sentence as severe as life
imprisonment.2 Harris, 536 U.S. at 578 (Thomas, J., dissent-
2
Cf. United States v. Harris, 397 F.3d 404, 411-12 (6th Cir. 2005) (“If
we look only at the theoretical possibility of a life sentence for any
§ 924(c) violation, the reasoning of Booker suggests that there is no Sixth
Amendment violation. However, under the Guidelines regime, a life sen-
tence was only possible — absent an upward departure — for a person
who, having previously been convicted for a violation of § 924(c), is again
convicted of violating the subsection, the second time with a very serious
weapon. See 18 U.S.C. § 924(c)(1)(C)(ii) (mandating life sentence only in
the case of a ‘second or subsequent conviction under this subsection’
where ‘the firearm involved is a machinegun or destructive device, or is
equipped with a firearm silencer or firearm muffler’). Given the severe
constraints on imposition of a life sentence in the pre-Booker world, it
would seem strikingly at odds with the principles set forth in Booker to
hold that the sudden advisory nature of the Guidelines prevents the (still
mandatory) provisions of § 924(c) from violating the Sixth Amendment.”)
 UNITED STATES v. DARE 13633
ing) (citing sentencing data); U.S.S.G. § 2K2.4(b). Neverthe-
less, we cannot distinguish the sentence imposed in Harris
from the one imposed in this case.

[4] Dare argues that the constitutional analysis in Harris
was effectively overruled by the plurality in Booker, ___ U.S.
___, 125 S. Ct. at 756. We agree that Harris is difficult to rec-
oncile with the Supreme Court’s recent Sixth Amendment
jurisprudence, but Harris has not been overruled. See United
States v. Cardenas, 405 F.3d 1046, 1048 (9th Cir. 2005)
(“Booker does not bear on mandatory minimums.”); United
States v. Jones, 418 F.3d 726, 732 (7th Cir. 2005) (“Under
Harris, which the Supreme Court did not disturb in Booker,
imposition of the ten-year mandatory minimum sentence for
violation of 924(c)(1)(A)(iii) did not violate the Sixth Amend-
ment.”); United States v. Duncan, 413 F.3d 680, 683 (7th Cir.
2005) (“[N]othing in Booker or Blakely suggests that the
Court reconsidered, much less overruled, its holding in Har-
ris.”); id. at 683 n.3 (collecting cases from other circuits con-
cluding that Booker does not apply to statutory mandatory
minimum sentences).

[5] We cannot question Harris’ authority as binding prece-
dent. Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001)
(“A decision of the Supreme Court will control that corner of
the law unless and until the Supreme Court itself overrules or
modifies it. Judges of the inferior courts may voice their criti-
cisms, but follow it they must.”); Duncan, 413 F.3d at 683-84
(“[E]ven if the logic and spirit of those decisions [Booker and
Blakely] could be interpreted to have eroded the Court’s pre-
vious rationale for permitting mandatory minimum sentences
based on judicial factfinding, it certainly is not our role as an
intermediate appellate court to overrule a decision of the
Supreme Court or even to anticipate such an overruling by the
Court.”).
13634 UNITED STATES v. DARE
B. Standard of Proof

In Harris, the Supreme Court affirmed a mandatory statu-
tory minimum seven year sentence based upon the district
court’s finding by a preponderance of the evidence that Harris
had brandished a gun. Harris, 536 U.S. at 551-52. Dare
argues that because the sentencing factor of “discharging” had
the “disproportionate impact” of doubling his sentence from
five to ten years, the district court erred in utilizing a prepon-
derance of the evidence standard at sentencing.3

[6] As a general rule, the preponderance of the evidence
standard is the appropriate standard for factual findings used
for sentencing. See United States v. Howard, 894 F.2d 1085,
1089 (9th Cir. 1990). However, “ ‘[W]hen a sentencing factor
has an extremely disproportionate effect on the sentence rela-
tive to the offense of conviction,’ the government may have
to satisfy a ‘clear and convincing’ standard.” United States v.
Hopper, 177 F.3d 824, 833 (9th Cir. 1999) (quoting United
States v. Restrepo, 946 F.2d 654, 659 (9th Cir. 1991) (en
banc). In United States v. Jordan, 256 F.3d 922, 928 (9th Cir.
2001), we stated that to determine a disproportionate effect,
we look at the “totality of the circumstances,” including the
several factors relating to disproportionate effect set forth in
United States v. Valensia, 222 F.3d 1173, 1182 (9th Cir.
2000), cert. granted, judgment vacated, and remanded by 532
U.S. 901 (2001). These factors include: (1) whether the
3
Dare additionally argues that the district court erroneously rejected his
argument on the effect of his intoxication. Dare asserts that “brandishing”
under the definition in 18 U.S.C. § 924(c)(4) requires a showing of spe-
cific intent that the display of the firearm was to “make the presence of
the firearm known to another person in order to intimidate that person.”
The district court determined that Dare “discharged” the firearm in rela-
tion to the drug offense and sentenced accordingly. “Discharge” is not
defined in § 924(c). We conclude that a “discharge” requires only a gen-
eral intent. Voluntary intoxication is not a defense to a general intent
offense. See United States v. Jim, 865 F.2d 211, 212-14 (9th Cir. 1989).
The district court did not err in rejecting Dare’s intoxication argument.
 UNITED STATES v. DARE 13635
enhanced sentence falls within the maximum sentence for the
crime alleged in the indictment; (2) whether the enhanced
sentence negates the presumption of innocence or the prose-
cution’s burden of proof for the crime alleged in the indict-
ment; (3) whether the facts offered in support of the
enhancement create new offenses requiring separate punish-
ment; (4) whether the increase in sentence is based on the
extent of a conspiracy; (5) whether an increase in the number
of offense levels is less than or equal to four; and (6) whether
the length of the enhanced sentence more than doubles the
length of the sentence authorized by the initial sentencing
guideline range in a case where the defendant would other-
wise have received a relatively short sentence. Jordan, 256
F.3d at 928 (quoting Valensia, 222 F.3d at 1182).

Dare’s argument for application of a “disproportionate
impact” test would be cognizable under our case law if his
sentence were imposed solely by reference to enhancements
under the federal sentencing guidelines. His sentence, how-
ever, was imposed by virtue of the mandatory minimum
requirements of 18 U.S.C. § 924(c). The sentencing guide-
lines refer to the mandatory minimum sentences under
§ 924(c). See U.S.S.G. § 2K2.4(b) (“[I]f the defendant,
whether or not convicted of another crime, was convicted of
violating section 924(c) . . . the guideline sentence is the mini-
mum term of imprisonment required by statute.”). Thus, the
statutory minimum sentences in § 924(c) bind the district
court, not the sentencing guidelines and enhancements.

[7] To date, we have applied the “disproportionate impact”
test only in the case of federal guideline sentencing enhance-
ments. See United States v. Gonzalez, 365 F.3d 796, 799 (9th
Cir. 2004). The enhancements under the formerly mandatory
federal guidelines increased the defendant’s possible maxi-
mum sentence. See Booker, ___ U.S. ___, 125 S. Ct. at 756.
This case, by contrast, involves only a statutory mandatory
minimum sentence. The judge’s findings did not expose Dare
to a higher maximum statutory sentence, which, under Harris
13636 UNITED STATES v. DARE
and the now advisory guidelines, is life imprisonment based
upon the allegations in the indictment. See Harris, 536 U.S.
at 565 (“The judge may impose the minimum, the maximum,
or any other sentence within the range . . . .”). Therefore,
under Harris, due process concerns do not require that a
higher standard of proof be satisfied.

[8] The question arises whether Dare should be resentenced
following Booker because he was sentenced in 2004 under a
then-mandatory guidelines sentencing system. We decline to
vacate the sentence and remand for resentencing pursuant to
Booker because the outcome of Dare’s resentencing could not
possibly be different. See Jones, 418 F.3d at 732; Duncan,
413 F.3d at 684 (“If Mr. Duncan were to be resentenced, the
district court would still have no discretion to sentence him on
the firearm offense to less than the statutory thirty-year mini-
mum.”). The district court found that the firearm was “dis-
charged” during a drug trafficking crime. This “sentencing
factor,” under § 924(c) and Harris, requires the district court
to sentence the defendant to a mandatory minimum sentence
of ten years. 18 U.S.C. § 924(c)(1)(A)(iii). There was no other
sentencing guidelines range binding the district court that
resulted in statutory Booker error. We have no reason to ques-
tion the district court’s factfinding,4 and it is not our role to
question the mandatory minimum sentences under § 924(c) or
the federal prosecution of this individual case.

AFFIRMED.

4
Cf. United States v. Groce, 398 F.3d 679, 682 n.2 (4th Cir. 2005) (“The
factual conclusion that the gun was brandished did result in the imposition
of a sentence which is higher than the five-year maximum sentence which
was available under the guidelines for the use, carry, or possession of a
gun absent a brandish. However, to the extent this increase in Groce’s sen-
tence is problematic under United States v. Booker, ___ U.S. ___, 125
S. Ct. 738, 160 L. Ed. 2d 621 (2005), any problem will be remedied when
the district court resentences under the advisory guidelines.”).
 UNITED STATES v. DARE 13637
BEA, Circuit Judge, dissenting:

I respectfully dissent. Harris v. United States, 536 U.S. 545
(2002), is no longer good law in cases where a defendant
receives a sentence, based on facts found by a judge other
than a prior conviction, that is higher than the maximum sen-
tence the judge could have imposed based solely on facts
either admitted by the defendant or found by a jury beyond a
reasonable doubt. See United States v. Booker, 125 S. Ct. 738
(2005); Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531
(2004). Blakely and Booker changed our analysis.

First, although we used to consider only the statutory maxi-
mum for a sentence, we must now also consider the maximum
under the Sentencing Guidelines when a defendant has been
sentenced under a mandatory sentencing scheme. Further, we
focus only on whether that fact increased the defendant’s sen-
tence above the maximum guidelines sentence. In other
words, we focus only on the effect of a fact found by a judge
on the defendant’s sentence. We no longer distinguish
between facts which are elements of the crime and those that
are traditionally considered sentencing factors.

Second, any facts that increase a defendant’s sentence
above the maximum guidelines sentence must be proven (1)
to a jury and (2) beyond a reasonable doubt. Here, the fact
that increased Dare’s sentence was found by a judge and only
by a preponderance of the evidence. Accordingly, I think this
case should be remanded for a new sentencing hearing pursu-
ant to United States v. Ameline, 409 F.3d 1073 (9th Cir. June
1, 2005) (en banc).

I. Facts

Dare pleaded guilty to possession of a firearm during the
commission of a drug-trafficking crime. Based on this fact
alone, under the formerly-mandatory Sentencing Guidelines,
the judge was required to sentence Dare to a maximum term
13638 UNITED STATES v. DARE
of imprisonment of 5 years. 18 U.S.C. § 924(c)(1)(A)(i);
U.S.S.G. § 2K2.4.

Once the judge found, by a preponderance of the evidence,
that Dare discharged the firearm during the commission of a
drug-trafficking crime, the judge was required to sentence
Dare to a term of imprisonment of 10 years. 18 U.S.C.
§ 924(c)(1)(A)(iii); U.S.S.G. § 2K2.4(b).

Under the formerly-mandatory Sentencing Guidelines,
Dare’s sentence went from a mandatory sentence of 5 years,
to a mandatory sentence of 10 years based on a fact not
charged in the indictment, admitted by the defendant, nor
found by a jury beyond a reasonable doubt.

Two aspects of the trial judge’s ruling are important to
note. First, this is one of those rare cases in which the trial
judge made it clear that, but for the mandatory Sentencing
Guidelines, he would have imposed a lesser sentence. Second,
the judge did not find that Dare discharged the shotgun during
the course of the offense beyond a reasonable doubt, only by
a preponderance of the evidence.

Before imposing the 10-year sentence, the judge made the
following statements:

I find it outrageous, just like his sons do, that this
man, for 12 grams of marijuana, is going to spend
ten years of his life in a federal prison of the United
States. And at the very most, I could say, well, seven
years is the best deal, and that borders on outra-
geous. But that’s what the law is.

And as you know, there’s an overreach, in my view,
on prosecuting. It is not that the laws should not be
enforced, but there has to be judgment and there has
to be an issue of comity and consideration of what
 UNITED STATES v. DARE 13639
is warranted in terms of the proportionality of the
wrong that’s done.

You have a man who’s lived in a community for 25
years, who is recognized as hard working, honest,
reliable, who would give the shirt off of his back to
anybody, who has given two sons to this country to
defend this country, and we’re going to lock him up
for ten years and that’s not outrageous? I think it is.
So I will be a part of the outrage. Unwillingly. But
I’m going to do it.

I’m going to make a finding of fact here. I’m going
to find that the gun was brandished, I’m going to
find that the gun was discharged. If the burden of
proof is clear and convincing, then I think the gov-
ernment’s proof has failed in this case because of
these factors.

I think, in listening to that tape, that Mr. Dare clearly
was intoxicated. He has testified, and it is uncontro-
verted, he did not even know that the gun was used
until he appeared in front of Judge Erickson and was
advised of that.

I’m going to make a finding that it was his ordinary
practice when people were visiting with him that he
would discharge the weapon, the shotgun, and that
he had no intent, in terms of the actual discharge of
the weapon, of intimidating or threatening either of
the young men that were at his house.

I’m going to make a specific fact finding that neither
of the young men felt that they were threatened by
the discharge of the gun. It is true both of them were
intimidated by the brandishing and the presence of
the gun when he brought it out.
13640 UNITED STATES v. DARE
If the burden of proof is clear and convincing, then
I think the government has failed to demonstrate that
he actually intended the discharge of the gun to be
part of the drug transaction.

If the evidence is by a preponderance of the evi-
dence, as Mr. Van de Wetering has pointed out, then
I believe that those facts that I just stated would indi-
cate they wouldn’t be mitigated and, consequently,
by a preponderance of the evidence, I am going to
find that the gun was discharged as part of the trans-
action.

The thing that supports that is listening to that tape
and the chronicity of the way the events transpired.
I put on this stop watch when that tape started and
it was a very short time from start to finish, it was
less than five minutes that the whole thing came
about. And if that’s what—that was all a single
transaction from that perspective, at least by a pre-
ponderance of the evidence.

Consequently, I’m going to find that there was a dis-
charge in this case.

That doesn’t mitigate any comment I’ve made about
how unfair this is, or the proportionality of the law
or what is going on here.

Emphasis added.

II. Application of Harris after Blakely and Booker

Although these factual findings would have been sufficient
under Harris v. United States, 536 U.S. 545 (2002), they no
longer suffice. In Harris, the defendant was convicted of pos-
session of a firearm in connection with a drug-trafficking
offense in violation of 18 U.S.C. § 924(c)(1)(A)(i) following
 UNITED STATES v. DARE 13641
a bench trial. At sentencing, the judge also found Harris guilty
of brandishing the firearm, and sentenced him to 7 years
under 18 U.S.C. § 924(c)(1)(A)(ii). On appeal, Harris argued
his sentence was unconstitutional because the fact of bran-
dishing a firearm, which increased the mandatory minimum
sentence from 5 to 7 years, was not charged in the indictment,
nor proven beyond a reasonable doubt. The Court focused on
Apprendi v. New Jersey, 530 U.S. 466 (2000), and McMillan
v. Pennsylvania, 477 U.S. 79 (1986), to find that brandishing
a weapon in connection with a drug-trafficking offense was a
fact that was traditionally considered a sentencing enhance-
ment, not an element of a separate crime, and therefore was
not required to be charged in the indictment, nor found by a
jury beyond a reasonable doubt because the 7-year mandatory
minimum sentence for brandishing the firearm was still within
the maximum sentence of life for possession alone. Id. at 553-
57, 568-69. The Court did not address the effect of the 5-year
maximum sentence for possession of a firearm under the Sen-
tencing Guidelines. Only the dissent acknowledged that the
Sentencing Guidelines limited the maximum sentence for pos-
session, but even the dissent did not focus on this factor. Id.
at 578 n.4 (Thomas, J., dissenting).

Harris was decided after Apprendi v. New Jersey, 530 U.S.
466 (2000). In Apprendi, the Court focused only on whether
a fact found by the judge, not the jury, increased the defen-
dant’s sentence above the maximum penalty the defendant
could have received under the applicable statute. Neither
Apprendi nor Harris considered the validity of a sentence
enhancement under the Sentencing Guidelines. Although
Apprendi and Harris may well be good law if the sentence is
claimed to exceed the statutory maximum, the two cases are
inapposite where the claim is solely that the sentence is
improperly enhanced under the Sentencing Guidelines, as dis-
cussed below. The Court expressly declined to consider the
effect its ruling would have on the federal Sentencing Guide-
lines. See Apprendi, 530 U.S. at 497 n. 21.
13642 UNITED STATES v. DARE
I agree that under Harris, Dare’s sentence does not violate
the Constitution because his sentence of 10 years is still
within the statutory range of 5 years to life for possession
alone. See 18 U.S.C. § 924(c)(1)(A)(i). But the reasoning of
Harris was left to one side, and the focus to determine the
constitutionality of the sentence changed, in Blakely v. Wash-
ington, 542 U.S. 296, 124 S. Ct. 2531 (2004).

Blakely was a direct appeal from a 90-month sentence
imposed for a conviction of second degree kidnaping. Blakely
pleaded guilty to kidnaping his estranged wife. The facts
admitted in his plea, standing alone, supported a maximum
sentence of 53 months under Washington’s sentencing guide-
lines. The judge imposed a 90-month sentence, upon a finding
that Blakely had acted with deliberate cruelty, a sentencing
enhancement.

On appeal, the state argued the defendant’s 90-month sen-
tence met the Apprendi standard because it was still within the
statutory maximum of 10 years for kidnaping alone. The
Supreme Court reversed, holding the relevant statutory maxi-
mum for Apprendi purposes is “the maximum sentence a
judge may impose solely on the basis of the facts reflected in
the jury verdict or admitted by the defendant.” 124 S. Ct. at
2537 (italics in original). The Court held that since the Wash-
ington sentencing guidelines were mandatory, the sentencing
judge could not sentence Blakely to more than 53 months
without holding a sentencing hearing and obtaining jury find-
ings on the aggravating factors, even though the statutory
maximum was 10 years. Id. (holding that to determine
whether the judge-found fact increased the defendant’s sen-
tence above the statutory maximum, courts must look at “the
maximum sentence a judge may impose solely on the basis of
the facts reflected in the jury verdict or admitted by the defen-
dant”). The Court did not apply the distinction in Harris
between facts that are elements of the crime, and those that
are traditionally considered sentencing enhancements.
 UNITED STATES v. DARE 13643
Similarly, in United States v. Booker, 125 S. Ct. 738
(2005), the jury found that Booker possessed at least 50 grams
of cocaine with intent to distribute, in violation of 21 U.S.C.
§ 841(a)(1). Id. at 746. That statute provided a minimum sen-
tence of 10 years in prison and a maximum sentence of life.
21 U.S.C. § 841(b)(1)(A)(iii). The federal Sentencing Guide-
lines, however, prescribed a sentencing range of 210 to 262
months in prison. Id.

The judge found, by a preponderance of the evidence, that
Booker possessed an additional 566 grams of crack cocaine.
Id. Under the Sentencing Guidelines, this finding mandated a
sentence of 360 months to life. The judge imposed a sentence
of 360 months—still within the statutory maximum of a life
sentence for possession with intent to distribute of just 50
grams or more as found by the jury, but well above the maxi-
mum of 262 months under the formerly-mandatory Sentenc-
ing Guidelines. Id. The Supreme Court held that this sentence
violated Booker’s Sixth Amendment rights, and remanded the
case for re-sentencing under the now-advisory Sentencing
Guidelines. Id. at 746-56 (Stevens, J.).

Courts around the country have been grappling with similar
questions. In United States v. Harris, 397 F.3d 404 (6th Cir.
2005),5 the defendants were convicted of aiding and abetting
in an attempted possession, with intent to distribute, of a mix-
ture containing cocaine, and aiding and abetting the posses-
sion of a firearm in connection with a drug-trafficking crime.
The statute provided a sentence of 5 years to life for the pos-
session of a firearm in connection with a drug-trafficking
crime. 18 U.S.C. § 924(c)(1)(A)(i). Under the Sentencing
Guidelines, however, the maximum sentence was 5 years.
U.S.S.G. § 2K2.4(b). At sentencing, the judge found that one
of the firearms used during the drug-trafficking crime quali-
fied as a semiautomatic assault weapon, thus enhancing the
5
Not to be confused with Harris v. United States, 536 U.S. 545, 565
(2002).
13644 UNITED STATES v. DARE
defendants’ sentences from 5 years to 10 years. 18 U.S.C.
§ 924(c)(1)(B)(i); U.S.S.G. § 2K2.4(b). The court of appeals
affirmed the convictions in part, but vacated the sentences and
remanded, holding, inter alia, that the enhancement was not
constitutional under Booker.

Although the firearm-type enhancement under 18 U.S.C.
§ 924(c)(1)(B)(i) is different from the enhancement for dis-
charging a firearm under 18 U.S.C. § 924(c)(1)(A)(iii) at issue
here, the same principle applies. See also United States v.
Groce, 398 F.3d 679, 682 n.2 (4th Cir. 2005) (stating that sen-
tences pursuant to Harris v. United States, 536 U.S. 545
(2002) are “problematic” after Booker).

Just recently, a district court facing a similar problem, also
found that, to the extent the cases conflict, Blakely and Booker
have overruled Harris:

[T]he breadth of the holdings in Booker and Blakely
have in fact overruled Harris. The Court has gone
from holding that the Sixth Amendment is impli-
cated in the determination of facts that increase a
statutory maximum (Apprendi) to applying the Sixth
Amendment to all facts “essential to the punish-
ment” (Booker and Blakely). It has extended the
application of the Sixth Amendment from statutory
maximum penalties (Apprendi) to the mandatory
“Guidelines” (Booker). And even if one does not
characterize this group of holdings as overruling
Harris, plainly the reasoning underlying them does
overrule Harris.

United States v. Malouf, 2005 WL 1398624 at *9 (D. Mass.
June 14, 2005) (Gertner, J.) (footnotes omitted).

Further, although a sentence of 10 years is the minimum
sentence upon a finding that the defendant discharged the
weapon during and in relation to a drug trafficking crime,
 UNITED STATES v. DARE 13645
here the finding that Dare discharged the weapon was insuffi-
cient.

Although I appreciate my colleagues’ unwillingness to
depart from Harris until it is explicitly overruled by the
Supreme Court, I read Blakely and Booker as limiting cases
to the extent those cases directly conflict with Blakely and
Booker. For instance, in United States v. Dunnigan, 507 U.S.
87 (1993), the Court held that the sections of the Sentencing
Guidelines requiring a sentence enhancement where the judge
finds that the defendant committed perjury do not violate the
privilege of the accused to testify on her own behalf. This
issue was not involved in Booker. Nevertheless, because the
parties raised the issue, the Court in Booker discussed Dunni-
gan and concluded that:

Applying Blakely to the Guidelines would invalidate
a sentence that relied on such an enhancement if the
resulting sentence was outside the range authorized
by the jury verdict. Nevertheless, there are many sit-
uations in which the district judge might find that the
enhancement is warranted, yet still sentence the
defendant within the range authorized by the jury.
See post, at 774-776. (STEVENS, J., dissenting in
part). Thus, while the reach of Dunnigan may be
limited, we need not overrule it.

Booker, 125 S. Ct. at 753. The same principle holds true here.
While Harris may not be overruled in its entirety, it is limited
by Booker, and Dare’s sentence exceeds the Booker limit. See
also United States v. Gordon, 844 F.2d 1397, 1400 (9th Cir.
1988); Utah-Nevada Co. v. De Lamar, 133 F. 113, 120 (9th
Cir. 1904) (“[T]he Supreme Court of the United States has
since, as well as before, laid down the rules by which we must
be guided; and, if there is a conflict between them, the later
decisions must govern and control our action.”).
13646 UNITED STATES v. DARE
III. Findings by a Preponderance of the Evidence

The trial judge found that Dare discharged the weapon
intentionally, and as part of a drug transaction, but only by a
preponderance of the evidence. The trial judge specifically
held that if the standard were clear and convincing (a lower
standard than beyond a reasonable doubt) he would not find
Dare so discharged the firearm. Blakely and Booker teach us
not only that a defendant is entitled under the Sixth Amend-
ment to have a jury find all facts which enhance his sentence
above the statutory maximum, but also that the defendant is
entitled to have those facts found beyond a reasonable doubt.

Other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the pre-
scribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.

Blakely, 542 U.S. ___, 124 S. Ct. at 2536 (quoting Apprendi,
530 U.S. at 490).

Because the judge found the prosecution did not prove
Dare discharged the firearm by clear and convincing evi-
dence, he necessarily found the prosecution did not prove
Dare discharged the firearm beyond a reasonable doubt. “The
intermediate standard of clear and convincing evidence lies
between a preponderance of the evidence and proof beyond a
reasonable doubt.” Kenyeres v. Ashcroft, 538 U.S. 1301, 1305
(U.S. 2003) (citation and internal quotation marks omitted).

It is understandable that the judge found it more likely than
not that Dare discharged the shotgun into the air in an attempt
to intimidate his visitors into not reporting him to the authori-
ties. But it is just as understandable that the judge did not find
this fact by clear and convincing evidence, let alone beyond
a reasonable doubt, given that Dare was highly intoxicated,
and had the peculiar custom of showing off by firing his shot-
gun when visitors came calling. In fact, shooting his shotgun
 UNITED STATES v. DARE 13647
was such a non-event to Dare that he didn’t even remember
it happened until the Magistrate told him.

Accordingly, we should remand this case to the trial judge
with instructions to impose a new sentence under the now-
discretionary Sentencing Guidelines based solely on his find-
ing that Dare possessed the firearm, a crime that entails a stat-
utory minimum sentence of five years, not ten. 18 U.S.C.
§ 924(c)(1)(A)(i).