            United States Court of Appeals
                       For the First Circuit

No. 13-2097

                      UNITED STATES OF AMERICA,

                              Appellee,

                                 v.

                           KEVIN ST. HILL,

                        Defendant, Appellant.



            APPEAL FROM THE UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF MAINE

          [Hon. John A. Woodcock, Jr., U.S. District Judge]


                               Before

                     Torruella, Dyk* and Kayatta,
                           Circuit Judges.


          Stuart W. Tisdale, Jr., with whom Tisdale & Davis, P.A.
was on brief, for appellant.
          Margaret D. McGaughey, Assistant U.S. Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.



                           October 1, 2014




     *
         Of the Federal Circuit, sitting by designation.
             KAYATTA, Circuit Judge. After Kevin St. Hill pled guilty

to distributing oxycodone, the district court found that other

uncharged drug sales by St. Hill were relevant to determining his

guideline sentencing range.       St. Hill appeals, arguing that the

district court applied both the wrong standard and the wrong method

of   comparison   in    determining   what   uncharged   drug   sales   were

relevant to his sentence.      We affirm.

                               I. Background

             In December, 2012, Kevin St. Hill pled guilty (without a

plea bargain) to one count of distributing oxycodone in violation

of 21 U.S.C. § 841 (a)(1) and (b)(1)(C).                 According to the

government's version of the facts, on June 26, 2012, agents from

the Drug Enforcement Agency ("DEA"), along with a confidential

informant ("CI"), decided to purchase $600 worth of oxycodone pills

from St. Hill.    The CI called him, arranged for the sale, and drove

(with a DEA task force agent) to the location in Augusta, Maine,

where the sale was to take place.            Shortly thereafter, a blue

Mustang arrived.       St. Hill emerged from the Mustang, climbed into

the rear passenger seat of the DEA agent's car, and handed the CI

20 oxycodone pills.       The agent then gave St. Hill $600, and St.

Hill left.

             In addition to the facts as we have described them, the

Presentence Investigation Report ("PSR") related that on the day of

the controlled buy, the CI had contacted St. Hill "in an effort to


                                      -2-
purchase cocaine and Oxycodone.        St. Hill agreed to sell Oxycodone

to [the CI], but stated that he did not have any cocaine at that

time.     St. Hill did note that he could obtain cocaine in several

hours."    The PSR also noted that the CI had "identified St. Hill as

a large-scale trafficker of Oxycodone and cocaine in Central

Maine."    St. Hill does not challenge this information on appeal.

Section    1B1.3(a)   of   the    United   States   Sentencing       Guidelines

requires    the   sentencing     judge,    in   calculating    the    guideline

sentencing range, to take into consideration certain "relevant

conduct" other than the offense of conviction.                 Such relevant

conduct includes, for certain offenses such as that to which St.

Hill pled guilty, other drug sales that were "part of the same

course of conduct or common scheme or plan as the offense of

conviction."      U.S. Sentencing Guidelines Manual § 1B1.3(a)(2)

(2012).

            Paragraphs 3 and 4B of St. Hill's PSR described several

other drug sales that the parties agreed constituted relevant

conduct for purposes of calculating St. Hill's guideline sentencing

range.     First, the PSR described a controlled buy on April 18,

2012, when another confidential source pulled up to the home of

Thomas Flynn in Augusta.         St. Hill got into the car and sold the

source 3.7 net grams of cocaine base for $600.                Second, the PSR

explained that a CI (the same one, it appears, who participated in

the controlled buy on June 26, 2012) recounted that he or she


                                     -3-
bought oxycodone from St. Hill three times in one week sometime in

April or May of 2012.     Each time, the CI bought ten 30 mg oxycodone

pills from St. Hill.      All told, the offense of conviction and the

undisputed     relevant   conduct   resulted    in   St.   Hill   being   held

accountable for selling 3.7 grams of cocaine base and roughly 1.46

grams of oxycodone.

              Paragraph 4A of the PSR also attributed to St. Hill a

series   of    drug   sales   totaling   an   additional   76.65   grams   of

oxycodone. St. Hill contested both that the sales were established

by sufficiently reliable evidence and that they were relevant

conduct under the Guidelines.        The section of the PSR discussing

the sales reported as follows:

              Several     confidential   informants    were
              interviewed    regarding  St.   Hill's   drug
              distribution activities. They consistently
              stated that St. Hill was a large-scale
              Oxycodone and cocaine base trafficker, who
              received those substances via shipments from
              New York.       The confidential informants
              reported that St. Hill distributed the drugs
              in the Augusta and Waterville areas of Maine
              along with    four or five other individuals
              from New York. They describe St. Hill as the
              leader of this group of individuals . . . .
              One confidential informant (hereinafter CI-3)
              advised that he/she obtained 30 mg Oxycodone
              pills from St. Hill between January and at
              least May 2012, which he/she subsequently
              resold. CI-3 reported that in January 2012,
              he/she received a conservatively estimated 5
              (30 mg) Oxycodone pills per day for the 31
              days in January. Therefore for the month of
              January 2012, it is conservatively estimated
              that he/she purchased 155 (30 mg Oxycodone
              pills) from St. Hill. CI-3 advised that from
              February 2012 through May 2012, he/she

                                    -4-
             purchased an estimated 20 (30 mg) Oxycodone
             pills per day from St. Hill. Since that period
             contains a total of 120 days, it is estimated
             that he/she purchased 2,400 (30 mg) Oxycodone
             pills from St. Hill between February 2012 and
             May 2012. Therefore, St. Hill is accountable
             for distributing a total of 2,555 (30 mg)
             Oxycodone pills to CI-2 [sic].

             In disputing that the sales discussed in paragraph 4A of

the PSR constituted relevant conduct for sentencing purposes, St.

Hill's   presentence         memorandum       emphasized       that       all    of     the

transactions     other      than   those    in     paragraph    4A    "have      certain

similarities: they are for small quantities of drugs consistent

with personal use, purchased with cash and apparently not intended

for   resale.        They   are    isolated      in    time   and    do    not   involve

continuing agreements to purchase further drugs. Finally, they are

relatively close in time." He argued that the conduct described in

paragraph 4A of the PSR "is not relevant conduct to the offense of

conviction      in   that    the   nature     of      the   conduct   set       forth    in

[paragraph 4A] is different in kind from that in ¶¶ 3 and 4B as to

quantities, methods of distribution, participants, and nature of

the transactions."          He argued that the transactions could not be

relevant conduct because they were neither part of a "common scheme

or plan" nor the "same course of conduct" as the offense of

conviction.

             In a lengthy and detailed order, the district court

rejected St. Hill's arguments and so included the paragraph 4A

information in calculating his base offense level.                        This decision

                                        -5-
increased the Guidelines sentencing range from 30-37 months to

84-105 months.         The court ultimately sentenced St. Hill to 84

months' imprisonment.        St. Hill timely appealed.

              St. Hill pointedly does not argue on appeal that the

Guidelines,     as    properly   applied,      would   not   have   allowed      the

district court to find that the sales described in paragraph 4A of

the PSR were relevant conduct for the purposes of sentencing on his

offense of conviction.             Rather, he argues only that, in two

respects, the district court reached its conclusion by misapplying

the Guidelines standards.             He argues, first, that the district

court applied the wrong legal standard because, according to St.

Hill,   the    district    court      rested   its   finding   that   the      sales

described     in     paragraph   4A    were    relevant   conduct     on   a    test

applicable only to conspiracy offenses (or offenses in which the

conduct of someone other than the defendant is attributed to him

for sentencing purposes).             He argues, second, that the district

court erred because it focused its attention and findings on

whether the conduct reported in paragraph 4A was sufficiently

connected only to the other undisputed relevant conduct, rather

than directly to the offense of conviction.

                           II. Standard of Review

              St. Hill makes no claim that he presented to the district

court the two arguments he now advances on appeal, and we have

found no such presentation.              Accordingly, we review for plain


                                         -6-
error.   United States v. Tavares, 705 F.3d 4, 24 (1st Cir. 2013).

Under that standard, "[s]uccess on appeal requires [St. Hill] to

demonstrate: 1) an error; 2) that was plain or obvious; and which

3) affected his substantial rights; and also 4) seriously impaired

the fairness, integrity, or public reputation of the judicial

proceedings."   United States v. Santiago-Burgos, 750 F.3d 19, 24

(1st Cir. 2014).

                            III. Analysis

A.   The district court found that the paragraph 4A conduct
     was part of the same course of conduct as the offense of
     conviction.

           Guidelines   section   1B1.3(a)(2)   provides   that,   with

"fungible item crimes" like drug dealing, United States v. Blanco,

888 F.2d 907, 911 (1st Cir. 1989) (internal quotation marks

omitted), a defendant's base offense level should be calculated

based not merely on the offense of conviction, but also on, among

other things, "all acts and omissions committed, aided, abetted,

counseled, commanded, induced, procured, or willfully caused by the

defendant" "that were part of the same course of conduct or common

scheme or plan as the offense of conviction." U.S.S.G. § 1B1.3(a).

"'Common scheme or plan' and 'same course of conduct' are two

closely related concepts."    Id. § 1B1.3 cmt. 9.     The Guidelines

commentary specifies that "[f]or two or more offenses to constitute

part of a common scheme or plan, they must be substantially

connected to each other by at least one common factor, such as


                                  -7-
common victims, common accomplices, common purpose, or similar

modus operandi."   Id.   Moreover,

          [o]ffenses that do not qualify as part of a
          common scheme or plan may nonetheless qualify
          as part of the same course of conduct if they
          are sufficiently connected or related to each
          other as to warrant the conclusion that they
          are part of a single episode, spree, or
          ongoing series of offenses. Factors that are
          appropriate to [that] determination . . .
          include the degree of similarity of the
          offenses, the regularity (repetitions) of the
          offenses, and the time interval between the
          offenses. When one of the above factors is
          absent, a stronger presence of at least one of
          the other factors is required.[1]

Id.

          St. Hill argues that the district court applied the

"common scheme or plan" standard when it should have applied the

"same course of conduct" standard.     Under St. Hill's dichotomous

view of the Guidelines standard, a "common scheme or plan" can only

exist in the context of a conspiracy, or at least where someone

else's conduct is being attributed to a defendant for sentencing



      1
        Commentators have expressed some confusion as to why this
section uses the term "offense" rather than, for example,
"conduct." See Thomas W. Hutchison et al., Federal Sentencing Law
and Practice § 1B1.3, authors' cmt. 7(b)(2014 ed.). Although the
Guidelines generally define "offense" to include both the offense
of conviction and all associated relevant conduct, see U.S.S.G.
§ 1B1.1 cmt. n. 1(H), the parties here focus on the use of "offense
of conviction" in § 1B1.3(a)(2), and present no cogent argument
based on the use of "offense" in the Guidelines commentary. Cf.
United States v. Blackwell, 323 F.3d 1256, 1260 (10th Cir. 2003)(in
addressing the victim-status enhancement under U.S.S.G. § 3A1.2,
noting the distinction between the use of "offense" and "offense of
conviction" as it pertains to the inclusion of relevant conduct).

                                 -8-
purposes.    While a conspiracy is certainly a good example of a

"common scheme or plan," and so the phrases are sometimes used

interchangeably, see, e.g., United States v. Wood, 924 F.2d 399,

403-04 (1st Cir. 1991), it is not readily apparent why a conspiracy

in particular, or concerted action in general, is a necessary

element that limits the definition of a common scheme or plan.   In

any event, we need not follow this analysis to its conclusion

because St. Hill's starting premise--that the district court's

finding of relevant conduct hinged on a finding that the conduct

was part of a common scheme or plan--is simply wrong. The district

court plainly said that the sales described in paragraph 4A "should

be included as relevant conduct as part of a common scheme or plan

and part of the same course of conduct under U.S.S.G. § 1B1.3."

(emphasis added).    Nor did the district court rest its conclusion

on factors that are pertinent only to applying the "common scheme

or plan" standard.    The district court expressly considered, for

example, the "commonalities" between the various transactions

(i.e., their similarity) and the time interval between the repeated

offenses.2   So if the conduct was relevant conduct as part of the

"same course of conduct," it matters not whether it was also part


     2
        As noted above, two incidents are only part of the same
course of conduct "if they are sufficiently connected or related to
each other as to warrant the conclusion that they are part of a
single episode, spree, or ongoing series of offenses," which we
determine by assessing, inter alia, "the degree of similarity of
the offenses, the regularity (repetitions) of the offenses, and the
time interval between the offenses." U.S.S.G. § 1B1.3 cmt. 9.

                                 -9-
of a common scheme or plan.    We therefore turn to St. Hill's second

argument--that the district court erred in how it decided that the

conduct described in paragraph 4A was part of the same course of

conduct as the offense of conviction.

B.   There was no plain error in the district court's method
     of finding that the paragraph 4A conduct was part of the
     same course of conduct as the offense of conviction.

           The Guidelines provide that, to be "relevant conduct,"

uncharged conduct must be connected to the offense of conviction.

See United States v. Santos Batista, 239 F.3d 16, 22 (1st Cir.

2001)   ("[A]   defendant   must   not    only   be   responsible   for   any

uncharged acts to be considered in his sentencing, but those acts

also must be linked to the offense of conviction.").                St. Hill

argues that a link sufficient to show the "same course of conduct"

must be proved directly between the ostensibly relevant conduct and

the offense of conviction--not merely between that conduct and some

other relevant conduct.     And, indeed, several courts have so held.

See United States v. Bullock, 454 F.3d 637, 639-42 (7th Cir. 2006)

(noting that connecting disputed relevant conduct to other relevant

conduct "doesn't make it relevant to [the] actual offense of

conviction . . . .   That is, it's relevant only by association with

other relevant conduct, through a kind of criminal transitivity.

That's not good enough."); United States v. Pinnick, 47 F.3d 434,

436, 438-39 (D.C. Cir. 1995) (explaining that "the government must

demonstrate a connection between count three and the offense of


                                   -10-
conviction, not between count three and the other offenses offered

as relevant conduct.").        Cf. also United States v. Rhine, 583 F.3d

878, 885-86 (5th Cir. 2009) (describing the Guidelines as providing

that "[a] separate, unadjudicated offense may be part of a common

scheme or plan--and thus relevant conduct--if it is 'substantially

connected to [the offense of conviction] by at least one common

factor, such as common victims, common accomplices, common purpose,

or   similar      modus   operandi.'"        (quoting     U.S.S.G.   §   1B1.3

cmt. 9(A))(alteration in original)); United States v. Cyr, 337 F.3d

96, 102-03 (1st Cir. 2003) (reasoning that while two prior heroin

convictions were relevant conduct for the instant heroin offense,

it was permissible to treat two Xanax-related convictions imposed

jointly with those two heroin convictions not as relevant conduct).

              On the basis of this reasoning, St. Hill argues that the

district   court    employed    an   improper    method    of   comparison   in

determining that the drug sales described in paragraph 4A were

relevant conduct because it examined their nexus to the other

(undisputed) relevant conduct, rather than to the offense of

conviction.      St. Hill is correct that the district court did not

limit   its     examination    to    comparing   the    sales   described    in

paragraph 4A to only the offense of conviction.              Nor did it limit

its description of the "same course of conduct" to facts that were

manifest in all of the sales. For example, in confirming the scale

of St. Hill's operation, the district court observed that he had


                                      -11-
accomplices, even though those accomplices were not obviously

involved in the offense of conviction. Similarly, in comparing the

details of the drug business (as it found them) to the conduct

described in paragraph 4A, the district court referred to St.

Hill's ostensible practice of possessing firearms, although there

were no firearms obviously involved in the offense of conviction.

See, e.g., U.S.S.G. § 1B1.3 cmt. 9; United States v. Buck, 324 F.3d

786, 797 (5th Cir. 2003).

          We observe, first, that St. Hill's trial counsel did not

object to the district court's approach.     To the contrary, trial

counsel affirmatively invited the district court to examine the

extent to which the paragraph 4A conduct shared traits in common

with the conduct in paragraphs 3 and 4B.    Our review of St. Hill's

contrary position on appeal is therefore for plain error, at best.

United States v. Tavares, 705 F.3d at 24.

          Nor is it plain or obvious that the district court's

acceptance of counsel's invitation actually led it to err.      The

district court ultimately and expressly acknowledged that the

"uncharged conduct must be relevant to the charged conduct."    The

district court also focused, just as St. Hill says it should have,

on the task of explaining whether or not the ostensibly relevant

conduct "should be included in the same course of conduct or common

scheme or plan as the drug trafficking offense for which [St. Hill

stood] convicted."


                               -12-
            Third, even if the district court erred in failing to

limit its comparative analysis to the charged conduct and the

putative relevant conduct, St. Hill fails to demonstrate that any

such error affected his substantial rights.        See United States v.

Dominguez Benitez, 542 U.S. 74, 81 (2004) (plain error must have "a

prejudicial effect on the outcome of a judicial proceeding");

United States v. Gilman, 478 F.3d 440, 447 (1st Cir. 2007) (To

demonstrate prejudice on plain error "[i]n the sentencing context

. . . a defendant must" show "a reasonable probability that, but

for the error, the district court would have imposed a different,

more favorable sentence" (internal quotation marks omitted)).          We

do   not   think   that   St.   Hill   has   demonstrated   a   reasonable

probability that the district court would have reached a different

conclusion by comparing the offense of conviction only to the

paragraph 4A sales.       The district court correctly noted that the

offense of conviction and paragraph 4A sales shared commonalities

in the type of drug, drug units, general price range, geography,

and time frame.       St. Hill does not argue that the offense of

conviction, taken alone, would be insufficient to support a finding

that the paragraph 4A sales were relevant conduct.              He simply

argues that the outcome might have been different under the proper

method of analysis.       That is not enough to demonstrate prejudice

affecting substantial rights.          See Gilman, 478 F.3d 440, 447;

United States v. Carozza, 4 F.3d 70, 88-89 (1st Cir. 1993) (finding


                                   -13-
no prejudice where defendant argued his Guidelines range "might"

have been different had the district court not erred and the

district court's calculation was "in all likelihood" correct).

            Finally, given our plain error review, and St. Hill's

limited focus on whether the right standards and methods were

applied, we need not consider the extent to which the district

court, in applying the correct standard and method, should have

assigned more weight to the differences between the retail-level

deals and the wholesale supply described in paragraph 4A, a matter

not addressed in St. Hill's briefs on appeal.               Cf., e.g., Rhine,

583 F.3d at 889 (finding insufficient similarity between a one-off

$5   drug   sale   to    an    individual    user   and   participation   in   a

drug-trafficking        ring    selling     drugs   wholesale   to   mid-level

dealers).

                                 IV. Conclusion

            For the foregoing reasons, the judgment of the district

court is affirmed.



                        - Concurring Opinion Follows -




                                      -14-
            TORRUELLA,   Circuit    Judge   (Concurring).    I   join   the

court's opinion but write separately to note a disturbing trend in

criminal    prosecutions.     All     too   often,   prosecutors    charge

individuals with relatively minor crimes, carrying correspondingly

short sentences, but then use section 1B1.3(a) of the Sentencing

Guidelines ("Guidelines") to argue for significantly enhanced terms

of imprisonment under the guise of "relevant conduct" -- other

crimes that have not been charged (or, if charged, have led to an

acquittal) and have not been proven beyond a reasonable doubt.3

            The instant case provides a typical example of this

trend.     St. Hill was arrested, charged, and pleaded guilty to

distributing twenty oxycodone pills with a net weight of 0.56

grams.     Applying the Guidelines to just this offense, St. Hill's

base offense level would have been 12.               See U.S. Sentencing

Guidelines Manual ("U.S.S.G.") § 2D1.1(c)(14) (2012). Assuming the

district court's other findings remained unchanged, St. Hill's

total offense level would have been reduced to 9.                With this


     3
         A petition for a writ of certiorari currently pending
before the Supreme Court addresses a subset of these cases in which
acquitted conduct -- for which the jury explicitly found the
defendant not guilty -- is nonetheless used by the judge at
sentencing to increase the defendant's sentence.       In Jones v.
United States, petitioners argue for the ability to lodge an "as
applied" challenge to the substantive reasonableness of their
sentences. According to petitioners, their Guidelines ranges, and
thus sentences, were significantly and unconstitutionally increased
based solely on a judge-found fact which petitioners were acquitted
of at trial -- their involvement in the drug-related conspiracy.
Jones v. United States, 744 F.3d 1362 (D.C. Cir. 2014), petition
for cert. filed, (U.S. May 6, 2014) (No. 13-10026).

                                    -15-
offense   level,      and   a   criminal    history      category   of    IV,   the

Guidelines would have yielded an advisory sentence of 2-8 months.

See id. at Sentencing Table.            However, due to three incidents of

"relevant conduct" -- (1) an alleged sale of 3.7 net grams of

cocaine base to one confidential informant; (2) three alleged ten-

pill oxycodone sales totaling 0.9 grams to a second confidential

informant;      and   (3)   the    76.65    grams   of    wholesale      oxycodone

transactions that are at issue before the court4 with a third

confidential informant -- his base offense level jumped to 28 and

his resulting total offense level became 25.                 This equated to an

advisory Guidelines sentence of 84-105 months of imprisonment.

             In other words, St. Hill was subject to an additional six

to eight years in prison due to isolated drug sales not directly

related to the twenty oxycodone pills which led to his conviction,

all of which he was never arrested for, never charged with, never

pleaded guilty to, and never convicted of by a jury beyond a

reasonable doubt.       This is a prime example of the tail wagging the

dog. Even more disturbing: the government could, if it so chooses,

still charge St. Hill for these uncharged crimes in a separate

proceeding, and he could be convicted and sentenced again without

protection from the Double Jeopardy Clause.                See Witte v. United

States,   515    U.S.   389,      406   (1995)   ("Because    consideration      of


     4
       That St. Hill does not challenge two of the three incidents
of "relevant conduct" does not make the practice any less
disturbing.

                                        -16-
relevant conduct in determining a defendant's sentence within the

legislatively authorized punishment range does not constitute

punishment for that conduct, the instant prosecution does not

violate      the    Double    Jeopardy     Clause's       prohibition      against   the

imposition of multiple punishments for the same offense.").

              This is not to say that section 1B1.3(a)'s "relevant

conduct" considerations have no place in sentencing defendants.

Nor    is    it    to   say   that   various      other    factors    --    such   as   a

defendant's prior convictions, remorse, family responsibilities,

and    civic       contributions      --    are    not     appropriate      sentencing

considerations, or that they must be proven to a jury beyond a

reasonable doubt.         See 18 U.S.C. § 3553(a)(1) (2010) ("The court,

in    determining       the   particular     sentence       to   be   imposed,     shall

consider . . . the history and characteristics of the defendant

. . . ."); U.S.S.G. § 4A1.1 (explaining how prior convictions are

used    to    calculate       a   defendant's      criminal      history    category).

Rather, the point is that if the government wishes to punish a

defendant for certain alleged criminal conduct, then that conduct

should be charged in an indictment.

              Using the "relevant conduct" enhancement on unrelated

narcotics transactions simply because the transactions involve

characteristics common to most, if not all, narcotics transactions

in a given region -- i.e., similar types of narcotics, comparable

amounts of narcotics, comparable prices, a common geography, and


                                           -17-
occurring within a relatively short time frame (and not only hours

or days but extending as long as weeks or months) -- seems to go

far beyond what the Guidelines intended.        This is especially

striking when one considers that the burden of proof for this

"relevant conduct" is not the "beyond a reasonable doubt" standard

required to convict at trial but rather the much lower "by a

preponderance of the evidence" standard.   Compare U.S.S.G. § 6A1.3

cmt. ("The Commission believes that use of a preponderance of the

evidence standard is appropriate to meet due process requirements

and policy concerns in resolving disputes regarding application of

the guidelines to the facts of a case.") with United States v.

Alleyne, 133 S. Ct. 2151, 2156 (2013) ("The Sixth Amendment

. . . . in conjunction with the Due Process Clause, requires that

each element of a crime be proved to the jury beyond a reasonable

doubt.").    See also United States v. Watts, 519 U.S. 148, 156

(1997) (citing the commentary to U.S.S.G. § 6A1.3 and stating that

the Supreme Court has "held that application of the preponderance

standard at sentencing generally satisfies due process").

            Put differently, if the government intends to seek an

increase in a criminal defendant's sentence for conduct that

independently may be subject to criminal liability, the government

should charge that conduct in the indictment.   The Fifth Amendment

requires that "[n]o person shall be . . . deprived of life,

liberty, or property, without due process of law," U.S. Const.


                               -18-
amend. V, while the Sixth Amendment provides an accused with the

right to a trial "by an impartial jury," id. amend. VI.               The

practice of arguing for higher sentences based on uncharged and

untried "relevant conduct" for, at best, tangentially related

narcotics transactions seems like an end-run around these basic

constitutional guarantees afforded to all criminal defendants. Cf.

Alleyne, 133 S. Ct. at 2162 ("When a finding of fact alters the

legally prescribed punishment so as to aggravate it, the fact

necessarily forms a constituent part of a new offense and must be

submitted to the jury.").         The government's role is to ensure

justice, both to the accused and to the public at large; it is not

to maximize conviction rates and argue for the greatest possible

sentence.   And, while it is unclear to me whether this trend is due

to shaky police work resulting in cases that cannot be proven

beyond a reasonable doubt, prosecutorial laziness, or other less

nefarious factors, it remains troubling regardless.

            I am hardly the first to notice or call attention to this

injustice, and I am sure I will not be the last.       See, e.g., United

States v. Ritsema, 31 F.3d 559, 567 (7th Cir. 1994) ("Our point is

only that the relevant conduct provision, interpreted in an overly

broad manner, has the potential of being a coarse instrument

capable of causing years of serious incidental criminality to ride

in   at   sentencing   on   the   coattails   of   a   relatively   minor

conviction."); Susan N. Herman, The Tail that Wagged the Dog:


                                   -19-
Bifurcated Fact-Finding Under the Federal Sentencing Guidelines and

the Limits of Due Process, 66 S. Cal. L. Rev. 289, 292 (1992)

("This   system   also   imposes   strict   procedural   obligations   on

prosecutors who wish to charge a defendant with a particular crime,

but then provides them with a shortcut alternative means of having

a defendant punished for an additional offense that they might not

have been able to prove beyond a reasonable doubt, so long as the

defendant has been convicted of a related offense.").5

           Nevertheless, as a judge, it is my responsibility to

faithfully apply the law as articulated by both the Supreme Court

and this court, and I do not dispute that both the Guidelines and

our interpretation of them currently condone this questionable



     5
        See also United States v. Kikumura, 918 F.2d 1084, 1119-21
(3d Cir. 1990) (Rosenn, J., concurring) (expressing "concern that
the Government's manipulation of [the defendant's] charge and
sentencing illustrates the problem reported by many courts that the
sentencing guidelines have replaced judicial discretion over
sentencing with prosecutorial discretion," which may violate a
defendant's right to due process by allowing the government to
"deliberately collateralize at the charge and trial stage the most
critical element for [a defendant's] sentencing"), overruled by
United States v. Fisher, 502 F.3d 293 (3d Cir. 2007); Fed. Crim.
Procedure Comm. of the Am. Coll. of Trial Lawyers, The American
College of Trial Lawyers Proposed Modifications to the Relevant
Conduct Provisions of the United States Sentencing Guidelines, 38
Am. Crim. L. Rev. 1463, 1465 (2001)("[T]he Committee asserts that
defendants who are charged and convicted of particular criminal
offenses should have their sentences primarily based upon those
offenses, not offenses which the prosecutor has elected not to
charge or try to a judge or jury or of which they have been
acquitted."); id. at 1484 & n.150 (collecting cases in which
"judges have recognized that . . . the operation of the relevant
conduct rules is unjust from the perspective of an ordinary citizen
and therefore invites disrespect for the law").

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process.     See   Witte,       515   U.S.   at   396,     406    (finding     no

constitutional violation where the sentence was based in part on a

cocaine offense that defendant "clearly was neither prosecuted for

nor convicted of"); United States v. Lombard, 102 F.3d 1, 4 (1st

Cir. 1996) (finding no constitutional violation where the district

court "choose[s] 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").                  I nonetheless

question whether this interpretation should be revisited -- either

by the courts or by revisions to the Guidelines.




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