Case: 21-50219 Document: 00516316549 Page: 1 Date Filed: 05/12/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 12, 2022
No. 21-50219
Lyle W. Cayce
Summary Calendar
Clerk
United States of America,
Plaintiff—Appellee,
versus
Gary Paul Karr,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:99-CR-274-1
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
Gary Paul Karr received a five-count indictment for his role in the
deaths of Madalyn Murray O’Hair, Robin Murray O’Hair, and Danny Fry.
While the jury convicted Karr on four of the five counts, it acquitted him of
conspiracy to kidnap. And most importantly for this appeal, the jury found
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-50219 Document: 00516316549 Page: 2 Date Filed: 05/12/2022
No. 21-50219
that his conduct underlying Count 3—traveling in interstate commerce to
commit a crime of violence—did not result in the death of another person.
At resentencing however, the district court applied § 2B3.1(c) of the
Sentencing Guidelines, which cross-references the offense guideline for
murder, U.S.S.G. § 2A1.1. The district court held that a preponderance of
the evidence showed that Karr committed murder. To reach this holding, the
district court relied in part on a 20-year-old out-of-court statement by Karr’s
now-deceased co-conspirator, David Waters.
Karr argues that the district court erred in applying § 2B3.1(c) for two
reasons. First, he argues that this was unconstitutional because it relied on
acquitted conduct. The jury had acquitted him of conduct resulting in the
death of another person, which he argues cannot be reconciled with the
district court’s application of the murder guideline. Karr argues that it
violates the Fifth and Sixth Amendments to consider acquitted conduct at
sentencing. However, Karr concedes that this argument is foreclosed by the
Supreme Court’s holding in United States v. Watts, 519 U.S. 148, 156–57
(1997), and this court’s holdings in United States v. Farias, 469 F.3d 393, 399
(5th Cir. 2006) and United States v. Preston, 544 F. App’x 527, 528 (5th Cir.
2013) (per curiam). Karr merely wishes to preserve the issue for further
review.1
1
Distinguished jurists have called Watts into question. See, e.g., United States v.
Jones, 135 S. Ct. 8, 8–9 (2014) (Scalia, J., joined by Thomas, J., and Ginsberg, J., dissenting
from denial of certiorari) (encouraging the Court to decide whether the Due Process Clause
and the Sixth Amendment’s jury trial right permit judges to sentence defendants based on
uncharged or acquitted conduct); United States v. Sabillon-Umana, 772 F.3d 1328 (10th Cir.
2014) (Gorsuch, J., majority) (citing Justice Scalia’s dissent in Jones); United States v. Bell,
808 F.3d 926, 928 (D.C. Cir. 2015) (Kavanaugh, J., concurring in denial of rehearing en
banc) (“Allowing judges to rely on acquitted or uncharged conduct to impose higher
sentences than they otherwise would impose seems a dubious infringement of the rights to
due process and to a jury trial.”).
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No. 21-50219
Additionally, Karr argues that the district court erred by relying on
Waters’s statement, which was unreliable because Waters was more culpable
and had an incentive to inculpate Karr to secure a more favorable plea
agreement. The district court only had to find that § 2B3.1(c) applied based
on “a preponderance of the relevant and sufficiently reliable evidence”—not
beyond a reasonable doubt. United States v. Barfield, 941 F.3d 757, 762 (5th
Cir. 2019). The district court concluded that even disregarding Waters’s
statement, other evidence in the record supported application of U.S.S.G.
§ 2B3.1(c). Karr only objects to the district court’s reliance on Waters’s
statement and failed to challenge the sufficiency of the other information the
district court relied on. Because Karr abandoned any objection to the district
court’s alternative bases for applying § 2B3.1(c), he would not be entitled to
the relief he seeks even if he is right that Waters’s statement was unreliable.
See United States v. Elashyi, 554 F.3d 480, 494 n.6 (5th Cir. 2008).
AFFIRMED.
Karr argues that Watts never actually decided whether relying on acquitted or
uncharged conduct violates the Fifth and Sixth Amendments. Instead, Karr argues that
Watts focused only on whether the sentencing guidelines and applicable statutes allowed
district courts to do so. Nevertheless, as Karr concedes, our court has held that Watts also
bars challenges based on the Fifth and Sixth Amendments. See Farias, 469 F.3d at 399;
Preston, 544 F. App’x at 528.
3