United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 13, 2008 Decided June 27, 2008
No. 06-3090
UNITED STATES OF AMERICA,
APPELLEE
v.
TARIK SETTLES,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 05cr00059-01)
Lisa B. Wright, Assistant Federal Public Defender,
argued the cause for appellants. With her on the briefs was
A. J. Kramer, Federal Public Defender.
Muyiwa Bamiduro, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jeffrey A.
Taylor, U.S. Attorney, and Roy W. McLeese III and Florence
Pan, Assistant U.S. Attorneys.
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Before: GINSBURG, BROWN, and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: A jury convicted Tarik
Settles of unlawfully possessing a firearm and ammunition as
a convicted felon. See 18 U.S.C. § 922(g)(1). The District
Court sentenced Settles to 57 months of imprisonment
followed by three years of supervised release. Settles appeals
his sentence, arguing that the District Court
(i) unconstitutionally relied on acquitted conduct in
determining the appropriate sentence and (ii) committed
procedural error under the Supreme Court’s Booker line of
cases by presuming that a sentence within the advisory
Sentencing Guidelines range was reasonable. Because our
precedents establish that a sentencing court may consider
acquitted conduct at sentencing, and because the District
Court here did not impermissibly apply a presumption of
reasonableness to a within-Guidelines sentence, we affirm.
I
The jury convicted Tarik Settles of one count of unlawful
possession of a firearm and ammunition by a convicted felon,
but it acquitted him of possession with intent to distribute
cocaine and of using or carrying a firearm during a drug-
trafficking offense. See 18 U.S.C. § 922(g)(1); 21 U.S.C.
§ 841(a)(1), (b)(1)(B)(ii); 18 U.S.C. § 924(c).
The statutory maximum for Settles’s felon-in-possession
conviction was 10 years. See 18 U.S.C. § 924(a)(2). Under
the advisory U.S. Sentencing Guidelines, Settles’s Guidelines
range for the felon-in-possession conviction was 37 to 46
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months of imprisonment. See U.S. SENTENCING GUIDELINES
MANUAL § 2K2.1(a)(4)(A); U.S.S.G. ch. 5, pt. A.
The probation office’s presentence investigation report
recommended an enhancement for conduct of which the jury
had acquitted Settles: using or possessing a firearm in
connection with possessing with intent to distribute cocaine.
See § 2K2.1(b)(6). As a result of that enhancement, the
adjusted Guidelines range was 57 to 71 months of
imprisonment. See U.S.S.G. ch. 5, pt. A.
After hearing arguments from the parties, the District
Court agreed with the probation office and found that the
Government had proved by a preponderance of the evidence
that Settles had possessed the gun in connection with
possessing with intent to distribute cocaine. Therefore, the
District Court found the advisory Guidelines sentencing range
to be 57 to 71 months. The District Court then considered the
sentencing factors in 18 U.S.C. § 3553(a), heard defense
counsel’s arguments regarding those factors, and listened to
Settles’s request for leniency. The District Court ultimately
sentenced Settles to 57 months in prison followed by three
years of supervised release.
II
On appeal, Settles argues that the District Court’s upward
adjustment to his base offense level under the advisory
Guidelines violated his Fifth and Sixth Amendment rights
because the adjustment was based on conduct of which he had
been acquitted. He also argues that the District Court
committed procedural error under the Booker line of cases by
treating the Guidelines range of 57 to 71 months as
presumptively reasonable.
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The Supreme Court recently set forth the limited role of
appeals courts in reviewing sentences: We review a sentence
under an abuse of discretion standard, ensuring both that the
District Court did not commit a “significant procedural error”
and that the sentence is substantively reasonable. Gall v.
United States, 128 S. Ct. 586, 597 (2007). In assessing
procedural compliance, we ensure that the District Court did
not: incorrectly calculate the advisory Guidelines range, fail
to consider the § 3553(a) factors, rely on clearly erroneous
facts, treat the advisory Guidelines as mandatory, or fail to
explain the chosen sentence and any deviation from the
advisory Guidelines range. Id.
A
Settles argues that the District Court violated the Fifth
and Sixth Amendments to the Constitution by considering
conduct of which he had been acquitted in calculating the
advisory Guidelines range and determining his sentence.
Settles contends in particular that the District Court’s reliance
on acquitted conduct increased his advisory Guidelines range
from 37-46 months to 57-71 months and that the District
Court took that acquitted conduct into account in imposing a
sentence within the advisory Guidelines range. As Settles
concedes, however, long-standing precedents of the Supreme
Court and this Court establish that a sentencing judge may
consider uncharged or even acquitted conduct in calculating
an appropriate sentence, so long as that conduct has been
proved by a preponderance of the evidence and the sentence
does not exceed the statutory maximum for the crime of
conviction. See United States v. Watts, 519 U.S. 148, 156-57
(1997); United States v. Brown, 516 F.3d 1047, 1050-51
(D.C. Cir. 2008); United States v. Dorcely, 454 F.3d 366, 371
(D.C. Cir. 2006); United States v. Boney, 977 F.2d 624, 636
(D.C. Cir. 1992); see also Williams v. New York, 337 U.S.
5
241, 247 (1949). Under those cases, there is no Fifth
Amendment due process problem with this long-standing
sentencing practice. As to the Sixth Amendment, moreover,
the District Court’s reliance on acquitted conduct in
calculating the Guidelines range no longer poses a problem
because the post-Booker Guidelines are only advisory. For
Sixth Amendment purposes, the relevant upper sentencing
limit established by the jury’s finding of guilt is thus the
statutory maximum, not the advisory Guidelines maximum
corresponding to the base offense level. And the Supreme
Court has “never doubted the authority of a judge to exercise
broad discretion in imposing a sentence within a statutory
range.” United States v. Booker, 543 U.S. 220, 233 (2005).
In short, because the conduct in question was proved by a
preponderance of the evidence and because Settles’s sentence
did not exceed the statutory maximum of 10 years, the
District Court’s consideration of acquitted conduct in
sentencing him did not violate the Fifth or Sixth Amendment.
To be sure, we understand why defendants find it unfair
for district courts to rely on acquitted conduct when imposing
a sentence; and we know that defendants find it unfair even
when acquitted conduct is used only to calculate an advisory
Guidelines range because most district judges still give
significant weight to the advisory Guidelines when imposing
a sentence. At his sentencing, Settles himself cogently
explained the point directly to the court: “I just feel as
though, you know, that that’s not right. That I should get
punished for something that the jury and my peers, they found
me not guilty.” May 19 Tr. at 29. Many judges and
commentators have similarly argued that using acquitted
conduct to increase a defendant’s sentence undermines
respect for the law and the jury system. See, e.g., Watts, 519
U.S. at 170 (Kennedy, J., dissenting) (“At the least it ought to
be said that to increase a sentence based on conduct
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underlying a charge for which the defendant was acquitted
does raise concerns about undercutting the verdict of
acquittal . . . .”); United States v. Baylor, 97 F.3d 542, 549-51
(D.C. Cir. 1996) (Wald, J., concurring specially).
For those reasons, Congress or the Sentencing
Commission certainly could conclude as a policy matter that
sentencing courts may not rely on acquitted conduct. But
under binding precedent, the Constitution does not prohibit a
sentencing court from relying on acquitted conduct.
That said, even though district judges are not required to
discount acquitted conduct, the Booker-Rita-Kimbrough-Gall
line of cases may allow district judges to discount acquitted
conduct in particular cases – that is, to vary downward from
the advisory Guidelines range when the district judges do not
find the use of acquitted conduct appropriate. Cf. Kimbrough
v. United States, 128 S. Ct. 558, 570 (2007) (“The
Government acknowledges . . . that, as a general matter,
courts may vary from Guidelines ranges based solely on
policy considerations, including disagreements with the
Guidelines.”) (internal quotation marks and alteration
omitted). Because the District Court here chose not to vary
below the advisory Guidelines range, however, we need not
and do not decide that question.
B
Settles correctly argues that a “sentencing court does not
enjoy the benefit of a legal presumption that the Guidelines
sentence should apply.” Rita v. United States, 127 S. Ct.
2456, 2465 (2007). At the outset, we recognize the surface
incongruity of a system in which district courts cannot apply a
presumption of reasonableness to a within-Guidelines
sentence, while appellate courts can and do apply a
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presumption of reasonableness to a within-Guidelines
sentence. See id.; Dorcely, 454 F.3d at 376 (“[A] sentence
within a properly calculated Guidelines range is entitled to a
rebuttable presumption of reasonableness” on appeal.). In any
event, the District Court in this case applied no such
presumption. Rather, the court arrived at Settles’s within-
Guidelines sentence only after it had reviewed the presentence
investigation report; properly calculated the advisory
Guidelines range; and considered the § 3553(a) sentencing
factors, the parties’ arguments, and Settles’s plea for leniency.
Settles relies on two of the District Court’s statements to
argue that the court inappropriately applied a presumption of
reasonableness to the advisory Guidelines range.
First, after properly calculating the advisory Guidelines
range, the District Court stated that it would “[t]hen . . . turn
to 3553” and consider “whether there are other factors here
that would suggest that the Court should administer or impose
a lesser sentence.” May 19 Tr. at 34. Settles takes those
unremarkable statements to show the District Court’s belief
that the advisory Guidelines created a presumptively correct
sentencing range that “then” had to be overcome by other
factors to justify a variance. But the court said nothing of the
sort. Rather, it merely took the advisory Guidelines range as
a “starting point” and “then considered whether the § 3553(a)
factors warrant a sentence either within or outside this range.”
United States v. Lawson, 494 F.3d 1046, 1058 (D.C. Cir.
2007).
Second, after hearing the parties’ sentencing arguments,
the court concluded as follows: “I can’t find in your situation
a basis to . . . depart downward from the guidelines which I
think under the law is a reasonable one which brings me out
to the bottom of the guidelines.” May 19 Tr. at 41 (emphases
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added). That statement does not suggest that the District
Court applied a presumption of reasonableness to the advisory
Guidelines range that Settles had to overcome. Rather, the
court’s statement that it “think[s]” the range is “reasonable”
demonstrates the court’s independent judgment that a within-
Guidelines sentence in this case was reasonable and
appropriate. See Gall, 128 S. Ct. at 596-97.
***
We affirm the District Court’s judgment.
So ordered.