                          In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 02-3006
UNITED STATES OF AMERICA,
                                          Plaintiff-Appellee,
                             v.

DANIEL P. BOOS,
                                      Defendant-Appellant.
                       ____________

          Appeal from the United States District Court
              for the Western District of Wisconsin.
       No. 01-CR-109-C—Barbara B. Crabb, Chief Judge.
                       ____________
      ARGUED APRIL 1, 2003—DECIDED MAY 15, 2003
                     ____________


  Before FLAUM, Chief Judge, and COFFEY and EVANS,
Circuit Judges.
  EVANS, Circuit Judge. On a November day in 1990, a
backhoe operator at a landfill in Minnesota was shocked
when he saw a severed arm fall out of a plastic bag lodged
in a pile of garbage he was trying to move. The arm car-
ried a distinctive tattoo of a bare-chested woman riding
astride a tiger. The tattoo helped police establish that
the arm belonged to Robert Melby, a member of the Iron
Wings motorcycle “club,” a gang with headquarters in an
old farmhouse in rural Dunn County in northwest Wiscon-
sin. Melby had been “missing” for some 6 months when his
arm was found.
2                                              No. 02-3006

  Melby’s murder eventually became the tail that wagged
the dog in this prosecution a dozen years later of Daniel
Boos, the former president of the Iron Wings. Boos pled
guilty in 2002 to using the Iron Wings’ “clubhouse” to sell
drugs—cocaine and methamphetamine—and being a felon
in possession of firearms. 21 U.S.C. § 856(a)(1) and 18
U.S.C. § 922(g)(1). That set the stage for what turned out
to be the real battleground of the case, the government’s
claim that Boos’ sentence should be significantly en-
hanced because he murdered Melby. After a 2-day hearing,
the district judge was convinced that Boos had done the
deed, so she invoked the guidelines’ murder cross-reference,
U.S.S.G. § 2D1.1(d)(1), which considerably jacked up Boos’
penalty range. Instead of a sentence within a range of 121
to 151 months, Boos received a sentence of 30 years (240
months on one count and 120 on the other, to run consecu-
tively). This enhancement forms the primary basis of
Boos’ appeal.
  Boos argues that requiring proof of the murder only by
a preponderance of the evidence violated his due proc-
ess rights because the application of the murder cross-
reference hiked up his sentence so severely.
  First, relying on Apprendi v. New Jersey, 530 U.S. 466,
477 (2000), Boos claims that applying the cross-reference
essentially adds an element of the crime, and, as such, the
murder must be proved to a jury’s satisfaction beyond a
reasonable doubt. But Apprendi only applies to sentenc-
ing increases beyond the statutory maximum for the
underlying offense. Since Boos’ 30-year sentence was equal
to the combined statutory maximum for the two counts
of his conviction, Apprendi does not apply. See United
States v. Noble, 299 F.3d 907, 909-10 (7th Cir. 2002) (“No-
ble’s 30-year combined sentence does not exceed the
combined maximum for the two counts, so there was no
Apprendi violation.”).
No. 02-3006                                                3

   Boos also argues that, at a minimum, the district court
should have required the government to show clear and
convincing evidence that he killed Melby. Although Boos
admits that the preponderance of the evidence standard
is generally applied when deciding what effect to give
relevant uncharged conduct at sentencing (and, in fact, an
enhancement can be proper for uncharged conduct even
if the defendant previously had been acquitted on charges
for that conduct), see United States v. Watts, 519 U.S. 148,
156-57 (1997), he claims his situation warrants an excep-
tion because his sentence increased so dramatically. Other
circuits have applied a clear and convincing standard in
similar situations. See United States v. Kikumura, 918 F.2d
1084, 1101 (3rd Cir. 1990); United States v. Shonubi, 103
F.3d 1085, 1089 (2nd Cir. 1997).
  At times, we have suggested that a higher standard might
be necessary in the rare instance when a factual finding
will result in a sentencing increase so great “that the
sentencing hearing can fairly be characterized as ‘a tail
which wags the dog of the substantive offense.’ ” United
States v. Corbin, 998 F.2d 1377, 1387 (7th Cir. 1993)
(quoting United States v. Schuster, 948 F.2d 313, 315 (7th
Cir. 1991) (citations omitted)). See also United States
v. Smith, 308 F.3d 726, 748 (7th Cir. 2002) (“[T]he prin-
ciple . . . remains viable.”); United States v. Rodriguez, 67
F.3d 1312, 1322 (7th Cir. 1995) (“Our decisions implicitly
have agreed with Kikumura to the extent that due process
considerations may, at some point, require a greater
showing for a dramatic increase.”); Schuster, 948 F.2d at
315-16 (finding that the difference between a sentence in
the 21-to-27-month range and a 5-year sentence was not
so “exceptional” as to require a higher burden of proof, but
implying that an “exceptional” situation would warrant
a higher burden of proof).
  Despite suggestions in some of our cases, we have never
taken the final step and actually required the prosecution
4                                              No. 02-3006

to meet a clear and convincing evidence standard. In fact,
we have at times been critical of Kikumura’s basic premise.
See United States v. Ewers, 54 F.3d 419, 421 (7th Cir.
1995) (we have “not been sympathetic to the Kikumura
analysis”); United States v. Masters, 978 F.2d 281 (7th Cir.
1992). In Masters, we found:
    A sentence at the top of the statutory range does
    not punish Masters for a crime he didn’t commit; it uses
    all available information about his character and
    dangerousness in choosing the sentence for the crime
    of which he stands convicted. Judges have been consid-
    ering defendants’ activities and character since long
    before there were guidelines, with consistent ap-
    proval from the highest court. This is one reason why
    we have held that judges may take other crimes into
    account when selecting a sentence under the guidelines,
    even if the defendant has been charged with and
    acquitted of those crimes.
978 F.2d at 285 (citations omitted). As a result, we found
that “[a]lthough Kikumura expressed [its] conclusion in
constitutional terms, it is impossible to square such a
holding with McMillan—or with the history of discre-
tionary sentencing in the United States.” Therefore, the
defendant’s due process argument went “nowhere.” Id. at
286 (citing McMillan v. Pennsylvania, 477 U.S. 79 (1986)
and noting that the Supreme Court has also held that
the preponderance standard is appropriate when decid-
ing whether to use other-crimes evidence at trial, see
Huddleston v. United States, 485 U.S. 681, 690 (1988)).
  Despite our castigation of Kikumura’s reasoning in
Masters, we did not reject Kikumura’s holding. That’s
because we were able to “defer until another day the
decision whether development in a common-law fashion
ever would lead to the use of a clear-and-convincing stan-
dard in sentencing,” 978 F.2d at 287, since the finding
No. 02-3006                                                5

of murder resulted in just a 4-level increase. We do not have
that option here, however, as the more than 17 additional
years Boos received from the application of the cross-
reference (more than doubling his sentence) qualifies
as “exceptional.” That seems to put Masters’ anti-Kikumura
train back on the track, ready to run into our suggestions
in Corbin and Schuster that we should require clear and
convincing evidence for drastic sentencing increases.
  As we did in Masters, though, we can pull the emer-
gency brake and avoid the collision of the two seemingly
incongruous lines of cases. That’s because the evidence
against Boos supports a finding of guilt even under a clear
and convincing evidence standard, making the choice of
standard irrelevant. See, e.g., Slaney v. The Int’l Amateur
Athletic Fed’n, 244 F.3d 580, 597 (7th Cir. 2001) (“[A]n
appellate court may affirm the district court’s dismissal
on any ground supported by the record, even if different
from the grounds relied upon by the district court.”).
  Boos argues that the evidence does not support a find-
ing of guilt even under a preponderance of the evidence
standard. Investigators found no blood or bullet frag-
ments in the basement of the Iron Wings clubhouse, where
police think the murder took place (although at the time
of the search they did not know Melby had been killed, so
they were not looking for any signs of the murder).
  In addition, there were no bullets found in the leg police
recovered (the other leg was never found). Boos claims
that contradicts a written description of the killing by
Randy Simonsmeier, the prosecution’s star witness to
whom Boos confessed (Simonsmeier wrote that Boos shot
Melby in the “kneecap’s,” suggesting that both legs should
have contained at least one bullet). Also, no fingerprints
were discovered on the plastic bags containing Melby’s
arm and leg, and police found no plastic bags at the
Iron Wings clubhouse that were like the ones found contain-
ing Melby’s arm and leg.
6                                                No. 02-3006

   Without more physical evidence, prosecutors might have
struggled to prove Boos’ guilt beyond a reasonable doubt
(likely explaining why Boos was never brought up on state
murder charges). But the evidence was sufficient to con-
clude that it is “highly probable” that Boos killed Melby,
thus satisfying both the preponderance of the evidence
and clear and convincing evidence standards. See von
Gonten v. Research Sys. Corp., 739 F.2d 1264, 1268 (7th
Cir. 1984) (“ ‘highly probable’ . . . is the Supreme Court’s
definition of . . . ‘clear and convincing evidence’ ”) (citing
Colorado v. New Mexico, 467 U.S. 310 (1984)).
  The best evidence of Boos’ guilt came from Simonsmeier,
who befriended Boos when the two spent time together in
federal prison. Simonsmeier testified that Boos told him
in detail how he had killed Melby because he thought
Melby, who Boos strongly suspected had been tipping off
police to illegal activities by Iron Wings members, had
stolen $10,000 and some drugs from him. Boos told
Simonsmeier that he lured Melby into the basement of the
Iron Wings clubhouse to confront him. When Melby denied
stealing the money and drugs, Boos shot him in the knee,
and, after Melby again denied the theft, Boos killed him
with a shot to the head. With help from his wife, Carrie,
and Iron Wings member Roger Waite, Boos cleaned up
the mess and cut Melby into pieces, then dropped the
body parts in various Minnesota dumpsters.
  To support his story, Simonsmeier took the investigat-
ing officer to his home and pulled out an undated letter
describing the killing, the fear that caused Simonsmeier
to keep the story to himself, and the guilt he felt in stay-
ing quiet. Waite, who Simonsmeier said “didn’t look too
happy” when he found Boos telling Simonsmeier about
the murder, unwittingly also supported Simonsmeier’s
story. During a taped conversation containing several thinly
veiled references to the murder, Simonsmeier asked Waite
“Who else knows?”, to which Waite replied, “I ain’t got
No. 02-3006                                                7

the slightest. Only thing I know is you do and I’ve never
really liked that.”
   Simonsmeier’s testimony was not the only evidence
against Boos. Iron Wings member William Wilson testified
that Boos told him he could have Melby’s tools because
Melby would not be coming back. He also testified that
Boos and Waite arranged for the septic system at the
Iron Wings clubhouse to be pumped in the summer of
1991, even though it had been pumped the previous year
(it has not been pumped since). Wilson’s wife testified
that Carrie Boos told her that Boos and Waite had killed
Melby and disposed of his body. Several other witnesses
also told tales consistent with Simonsmeier’s story. The
district court found all of the witnesses to be credible
with the exception of Waite, who testified that he and
Boos were not involved in Melby’s murder but “lost any
chance of appearing to be telling the truth when he
said he had never seen defendant deal drugs in the club-
house.” Simonsmeier’s testimony and letter, combined with
Waite’s unintentional corroboration and the testimony of
the supporting witnesses, provided clear and convincing
evidence that Boos committed the murder.
  In addition to his arguments against the application
of the murder cross-reference, Boos claims that the dis-
trict court should not have imposed a 2-level enhance-
ment for obstruction under U.S.S.G. §3C1.1. Boos also
thinks he deserved a 3-level reduction under U.S.S.G.
§3E1.1 for acceptance of responsibility. To prevail on either
claim, Boos must show clear error. See United States v.
Martin, 287 F.3d 609, 616 (7th Cir. 2002).
  The obstruction of justice enhancement stems from Boos’
dealings with Iron Wings member Tony Allen, who was
arrested along with Abraham and Melissa Savage (Boos’
step-son and his wife) on drug charges. Boos suspected
Allen of tipping off police to the Savages’ activities. When
8                                                No. 02-3006

Allen got out of jail, two of his cars, a truck, a motorcycle,
and other valuable items were missing. Boos promised
Allen that he would get his property back if it turned out
that he had not been giving information to police.
  A few months later, Allen was scheduled to testify be-
fore the federal grand jury when Boos cornered Allen
outside the hearing room and asked him about the proceed-
ings. When police later found Boos sitting in a van out-
side the building, he claimed he was there to support
Melissa Savage (his daughter-in-law), who was also sched-
uled to appear that day. But the district court found that
story “just a little bit too much to ask in the way of my
credulity” in part because Boos and Savage were not very
close and they made the several-hour drive to the hear-
ing in separate cars.
   We agree with the district court’s conclusion that Boos’
conduct was “certainly . . . intended to intimidate” Allen.
Boos told Allen that his property would be returned only
if he did not turn out to have given information to po-
lice, then showed up when Allen was scheduled to testify
in an attempt to hammer that point home. Under those
circumstances, we cannot find clear error in the district
court’s conclusions.
  As the district court found, Boos’ attempted intimida-
tion of Allen also doomed his chances for a 3-level reduc-
tion under U.S.S.G. §3E1.1(b) for acceptance of responsi-
bility. “Conduct resulting in an enhancement under
§3C1.1 . . . ordinarily indicates that the defendant has not
accepted responsibility for his criminal conduct. There
may, however, be extraordinary cases in which adjust-
ments under both §§3C1.1 and 3E1.1 may apply.” U.S.S.G.
§3E1.1, cmt. n.4. See also United States v. Keeter, 130 F.3d
297, 299 (7th Cir. 1997). Boos offers no good reason why
this is the sort of “extraordinary case” that would qualify
as an exception to the ordinary rule. The district court,
No. 02-3006                                              9

accordingly, did not err when it declined to find that Boos
accepted responsibility for his conduct. The judgment of
the district court is AFFIRMED.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                  USCA-02-C-0072—5-15-03
