United States v. Lombard, Jr.

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,

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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.

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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

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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

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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

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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

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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.

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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.

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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

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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

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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).

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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-

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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.

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