 United States Court of Appeals
       FOR THE DISTRICT OF COLUMBIA CIRCUIT



             FILED: DECEMBER 22, 2015

                     No. 08-3037

             UNITED STATES OF AMERICA,
                     APPELLEE

                          v.

       GREGORY BELL, ALSO KNOWN AS BOY-BOY,
              ALSO KNOWN AS BUNGA,
                    APPELLANT


              Consolidated with 11-3032


          On Petitions for Rehearing En Banc


Before: GARLAND, Chief Judge; HENDERSON, ROGERS,
TATEL, BROWN, GRIFFITH, KAVANAUGH*, SRINIVASAN,
MILLETT**, PILLARD, and WILKINS, Circuit Judges.
                                2
                         ORDER

    Upon consideration of the petitions of appellant Bell in
No. 08-3037 and appellant Wilson in No. 11-3032 for
rehearing en banc, the responses thereto, and the absence of a
request by any member of the court for a vote, it is

   ORDERED that the petitions be denied.

                         Per Curiam

                                     FOR THE COURT:
                                     Mark J. Langer, Clerk

                                BY: /s/
                                    Ken Meadows
                                    Deputy Clerk

* A statement by Circuit Judge Kavanaugh, concurring in
the denial of the petition of appellant Bell in No. 08-3037, is
attached.

** A statement by Circuit Judge Millett, concurring in the
denial of the petition of appellant Bell in No. 08-3037, is
attached.
     KAVANAUGH, Circuit Judge, concurring in the denial of
rehearing en banc: Judge Millett’s thoughtful concurrence in the
denial of rehearing en banc highlights one of the oddities of
sentencing law that has long existed and that remains after United
States v. Booker, 543 U.S. 220 (2005). I write separately to
underscore that the problem identified by Judge Millett may be
addressed by individual district judges at sentencing.

     Here’s the issue: Based on a defendant’s conduct apart from
the conduct encompassed by the offense of conviction – in other
words, based on a defendant’s uncharged or acquitted conduct – a
judge may impose a sentence higher than the sentence the judge
would have imposed absent consideration of that uncharged or
acquitted conduct. The judge may do so as long as the factual
finding regarding that conduct does not increase the statutory
sentencing range for the offense of conviction alone. The Sixth
Amendment’s Jury Trial Clause is deemed satisfied because the
judge’s factual finding does not increase the statutory sentencing
range established by the jury’s finding of guilt on the offense of
conviction. See Booker, 543 U.S. at 267 (remedial opinion). And
the Fifth Amendment’s Due Process Clause is deemed satisfied
because a judge finds the relevant conduct in a traditional
adversarial procedure. See McMillan v. Pennsylvania, 477 U.S.
79, 91-93 (1986).

    Judge Millett cogently expresses her concern about
sentencing judges’ reliance on acquitted conduct at sentencing.
Even though the Sentencing Guidelines are now advisory, rather
than mandatory, she advocates barring consideration of acquitted
conduct in calculating the advisory Guidelines offense level.

     I share Judge Millett’s overarching concern about the use of
acquitted conduct at sentencing, as I have written before. See,
e.g., United States v. Settles, 530 F.3d 920, 923-24 (D.C. Cir.
2008); see also United States v. Henry, 472 F.3d 910, 918-22
(D.C. Cir. 2007) (Kavanaugh, J., concurring). Of course,
resolving that concern as a constitutional matter would likely
                                    2
require a significant revamp of criminal sentencing jurisprudence
– a revamp that the Supreme Court lurched toward in cases such
as Blakely v. Washington, 542 U.S. 296 (2004), but backed away
from in its remedial opinion in Booker.

     Taken to its logical conclusion, the Blakely approach would
require a jury to find beyond a reasonable doubt the conduct used
to set or increase a defendant’s sentence, at least in structured or
guided-discretion sentencing regimes. A judge could not rely on
acquitted conduct to increase a sentence, even if the judge found
the conduct proved by a preponderance of the evidence. A judge
likewise could not rely on uncharged conduct to increase a
sentence, even if the judge found the conduct proved by a
preponderance of the evidence.

     At least as a matter of policy, if not also as a matter of
constitutional law, I would have little problem with a new federal
sentencing regime along those lines. 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. If you have a right to
have a jury find beyond a reasonable doubt the facts that make
you guilty, and if you otherwise would receive, for example, a
five-year sentence, why don’t you have a right to have a jury find
beyond a reasonable doubt the facts that increase that five-year
sentence to, say, a 20-year sentence? Cf. In re Winship, 397 U.S.
358 (1970).

     But that would be a constitutional rule far different from the
one we now have or have historically had. As the Supreme Court
has said many times: “We have never doubted the authority of a
judge to exercise broad discretion in imposing a sentence within a
statutory range. . . . For when a trial judge exercises his discretion
to select a specific sentence within a defined range, the defendant
has no right to a jury determination of the facts that the judge
                                  3
deems relevant.” Booker, 543 U.S. at 233; see also Williams v.
New York, 337 U.S. 241, 246-52 (1949). To quote a recent case:
“While such findings of fact may lead judges to select sentences
that are more severe than the ones they would have selected
without those facts, the Sixth Amendment does not govern that
element of sentencing. . . . We have long recognized that broad
sentencing discretion, informed by judicial factfinding, does not
violate the Sixth Amendment.” Alleyne v. United States, 133 S.
Ct. 2151, 2161 n.2, 2163 (2013).

     Given the Supreme Court’s case law, it likely will take some
combination of Congress and the Sentencing Commission to
systematically change federal sentencing to preclude use of
acquitted or uncharged conduct.

     Importantly, however, even in the absence of a change of
course by the Supreme Court, or action by Congress or the
Sentencing Commission, federal district judges have power in
individual cases to disclaim reliance on acquitted or uncharged
conduct. To be sure, when calculating the advisory Guidelines
range, district judges may have to factor in relevant conduct,
including acquitted or uncharged conduct. But those Guidelines
are only advisory, as the Supreme Court has emphasized. So
district judges may then vary the sentence downward to avoid
basing any part of the ultimate sentence on acquitted or
uncharged conduct. In other words, individual district judges
possess the authority to address the concern articulated by Judge
Millett. See generally Rita v. United States, 551 U.S. 338, 350-56
(2007); Gall v. United States, 552 U.S. 38, 49-50 (2007);
Kimbrough v. United States, 552 U.S. 85, 108-10 (2007); United
States v. White, 551 F.3d 381, 386 (6th Cir. 2008); cf. United
States v. Gardellini, 545 F.3d 1089, 1091-97 (D.C. Cir. 2008). In
my view, district judges would do well to heed Judge Millett’s
concern in appropriate cases.
     MILLETT, Circuit Judge, concurring in the denial of
rehearing en banc: This case is one in an “unbroken string of
cases” encroaching on the Sixth Amendment right to a trial by
jury, Jones v. United States, 135 S. Ct. 8, 9 (2014) (Scalia, J.,
joined by Thomas & Ginsburg, JJ., dissenting from the denial
of certiorari). The government indicted Gregory Bell for a
“mélange” of crimes, “including conspiracy and crack
distribution.” Panel Op. 2. Bell exercised his constitutional
right to a trial by jury on those charges, and the jury acquitted
Bell of ten of the thirteen charges against him, “including all
narcotics and racketeering conspiracy charges.” Panel Op. 3.
The jury convicted Bell of only three crack cocaine
distribution charges that together added up to just 5 grams.

     Because Bell had no significant criminal history and the
amount of cocaine was relatively small, Bell’s Sentencing
Guidelines range for the offense of conviction would have
been 51 to 63 months. At sentencing, however, the district
court found that Bell had engaged in the very cocaine
conspiracy of which the jury had acquitted him, and sentenced
Bell to 192 months in prison—a sentence that was over 300%
above the top of the Guidelines range for the crimes of which
he was actually convicted.

    In a constitutional system that relies upon the jury as the
“great bulwark of [our] civil and political liberties,” Apprendi
v. New Jersey, 530 U.S. 466, 477 (2000) (quoting 2 J. Story,
Commentaries on the Constitution of the United States 540–
541 (4th ed. 1873)), it is hard to describe Bell’s sentence as
anything other than a “perverse result,” United States v.
Watts, 519 U.S. 148, 164 (1997) (Stevens, J., dissenting). The
foundational role of the jury is to stand as a neutral arbiter
between the defendant and a government bent on depriving
him of his liberty. But when the central justification the
government offers for such an extraordinary increase in the
length of imprisonment is the very conduct for which the jury
                                 2
acquitted the defendant, that liberty-protecting bulwark
becomes little more than a speed bump at sentencing.

     The problem here is not so much the panel opinion. The
decision applies prior precedent from this circuit (consistent
with that of other circuits) establishing that—at least as a
general rule—“a sentencing court may base a sentence on
acquitted conduct without offending the defendant’s Sixth
Amendment right to trial by jury.” United States v. Dorcely,
454 F.3d 366, 371 (D.C. Cir. 2006). I agree with Justices
Scalia, Thomas, and Ginsburg, though, that the circuit case
law’s incursion on the Sixth Amendment “has gone on long
enough,” Jones, 135 S. Ct. at 9 (dissenting from denial of
certiorari); see also 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 underlying a charge for which the
defendant was acquitted does raise concerns about
undercutting the verdict of acquittal.”). For multiple reasons,
the time is ripe for the Supreme Court to resolve the
contradictions in Sixth Amendment and sentencing precedent,
and to do so in a manner that ensures that a jury’s judgment of
acquittal will safeguard liberty as certainly as a jury’s
judgment of conviction permits its deprivation.

     First, allowing a judge to dramatically increase a
defendant’s sentence based on jury-acquitted conduct is at
war with the fundamental purpose of the Sixth Amendment’s
jury-trial guarantee. The Constitution affords defendants the
“right to a speedy and public trial, by an impartial jury.” U.S.
CONST. Amend. VI. That right is “designed to guard against a
spirit of oppression and tyranny on the part of rulers[.]”
United States v. Gaudin, 515 U.S. 506, 510–511 (1995)
(quotation marks omitted); see also Duncan v. Louisiana, 391
U.S. 145, 155 (1968) (“A right to jury trial is granted to
criminal defendants in order to prevent oppression by the
                                 3
Government.”). Accordingly, before depriving a defendant of
liberty, the government must obtain permission from the
defendant’s fellow citizens, who must be persuaded
themselves that the defendant committed each element of the
charged crime beyond a reasonable doubt. That jury-trial
right is “no mere procedural formality,” but rather a
“fundamental reservation of power in our constitutional
structure.” Blakely v. Washington, 542 U.S. 296, 306 (2004).

     Yet as the law now stands, prosecutors can brush off the
jury’s judgment by persuading judges to use the very same
facts the jury rejected at trial to multiply the duration of a
defendant’s loss of liberty threefold. In that regime, the jury
is largely “relegated to making a determination that the
defendant at some point did something wrong, a mere
preliminary to a judicial inquisition into the facts of the crime
the State actually seeks to punish” at sentencing. Blakely, 542
U.S. at 307.

     To be sure, the Supreme Court has generally permitted
judicial fact-finding by a preponderance of the evidence at
sentencing that goes beyond what the jury’s verdict
encompasses, including facts about character, criminal
history, cooperation, and even some unadjudicated conduct.
See United States v. O’Brien, 560 U.S. 218, 224 (2010)
(“Sentencing factors * * * can be proved to a judge at
sentencing by a preponderance of the evidence.”). But
allowing judges to materially increase the length of
imprisonment based on facts that were submitted directly to
and rejected by the jury in the same criminal case is too deep
of an incursion into the jury’s constitutional role. “[W]hen a
court considers acquitted conduct it is expressly considering
facts that the jury verdict not only failed to authorize; it
considers facts of which the jury expressly disapproved.”
United States v. Pimental, 367 F. Supp. 2d 143, 152 (D. Mass.
                                4
2005); see also United States v. DiFrancesco, 449 U.S. 117,
129 (1980) (“An acquittal is accorded special weight.”);
United States v. Scott, 437 U.S. 82, 91 (1978) (“[T]he law
attaches particular significance to an acquittal.”).

     The oft-voiced response, of course, is that the different
treatment arises because a jury must find that the defendant
committed charged conduct beyond a reasonable doubt, while
a judge is permitted to find conduct relevant to sentencing
under the lesser preponderance-of-the-evidence standard. The
problem with relying on that distinction in this setting is that
the whole reason the Constitution imposes that strict beyond-
a-reasonable-doubt standard is that it would be
constitutionally intolerable, amounting “to a lack of
fundamental fairness,” for an individual to be convicted and
then “imprisoned for years on the strength of the same
evidence as would suffice in a civil case.” In re Winship, 397
U.S. 358, 364 (1970). In other words, proof beyond a
reasonable doubt is what we demand from the government as
an indispensable precondition to depriving an individual of
liberty for the alleged conduct. Constructing a regime in
which the judge deprives the defendant of liberty on the basis
of the very same factual allegations that the jury specifically
found did not meet our constitutional standard for a
deprivation of liberty puts the guilt and sentencing halves of a
criminal case at war with each other.

    The other explanation commonly proffered is that, as
long as the final sentence does not exceed the statutorily
authorized maximum length of incarceration for the offense of
conviction, the defendant is only being sentenced for the
crime he committed. That blinks reality when, as here, the
sentence imposed so far exceeds the Guidelines range
warranted for the crime of conviction itself that the sentence
would likely be substantively unreasonable unless the
                                 5
acquitted conduct is punished too. After all, “it is not the
abstract dignity of the statutory maximum that is at stake in
the Supreme Court’s Sixth Amendment jurisprudence, but the
integrity of the jury right itself, the cornerstone of our
criminal justice system.” United States v. Faust, 456 F.3d
1342, 1350 (11th Cir. 2006) (Barkett, J., concurring
specially).

     Second, while the panel understandably rows with the
tide of past decisions allowing the use of acquitted conduct at
sentencing, my reading of more recent Sixth Amendment
precedent from the Supreme Court casts substantial doubt on
the continuing vitality of that categorical rule, at least when
acquitted conduct causes a dramatic and otherwise
substantively unreasonable increase in a sentence. In Alleyne
v. United States, 133 S. Ct. 2151 (2013), the Court held that
the Sixth Amendment does not allow a judge, absent a jury, to
find any fact that “alter[s] the prescribed range of sentences to
which a defendant is exposed and do[es] so in a manner that
aggravates the punishment.” Id. at 2158. In so holding, the
Court rejected the rule in Harris v. United States, 536 U.S.
545 (2002), that allowed judges to find facts which increased
a defendant’s mandatory minimum sentence, but not the
maximum sentence. Id. at 2158.

     While Alleyne’s requirement that the jury, not a judge,
find facts fixing the permissible sentencing range applies to
statutory limitations, it is hard to understand why the same
principle would not apply to dramatic departures from the
Sentencing Guidelines range based on acquitted conduct.
After all, the Supreme Court has held that, as a matter of law,
a sentence within the Guidelines range is presumptively
reasonable and lawful, and any “major departure” from that
range requires “significant justification.” Gall v. United
States, 552 U.S. 38, 50, 51 (2007); see also id. at 49 (“[A]
                                6
district court should begin all sentencing proceedings by
correctly calculating the applicable Guidelines range,” and if
a sentence falls within the Guidelines range, “the appellate
court may * * * apply a presumption of reasonableness.”).

     Because the Sentencing Guidelines have “force as the
framework for sentencing,” Peugh v. United States, 133 S. Ct.
2072, 2083 (2013), and because, in the usual case, “the judge
will use the Guidelines range as the starting point in the
analysis and impose a sentence within the range,” Freeman v.
United States, 131 S. Ct. 2685, 2692 (2011), the Guidelines
demark the de facto boundaries of a legally authorized
sentence in the mine run of cases. Given that reality, the
Sixth Amendment should not tolerate the use of acquitted
conduct specifically rejected by the jury to provide the
required “significant justification” for tripling a defendant’s
sentence. See Jones, 135 S. Ct. at 8–9 (Scalia, J., joined by
Thomas and Ginsburg, JJ., dissenting from the denial of
certiorari) (“It unavoidably follows that any fact necessary to
prevent a sentence from being substantively unreasonable—
thereby exposing the defendant to the longer sentence—is an
element that must be either admitted by the defendant or
found by the jury. It may not be found by a judge,” especially
when “a jury acquitted them of that offense.”).

     Third, the Constitution generally affords the prosecution
one shot at convicting a defendant of charged conduct. But
counting acquitted conduct at sentencing gives the
government a second bite at the apple. Sentencing has
become the forum in which the prosecutor asks the judge to
multiply a defendant’s sentence many times over based on
conduct for which the defendant was just acquitted by the
jury. See United States v. Canania, 532 F.3d 764, 776 (8th
Cir. 2008) (Bright, J., concurring) (“[W]e have a sentencing
regime that allows the Government to try its case not once but
                                 7
twice. The first time before a jury; the second before a
judge.”).

     At the same time, factoring acquitted conduct into
sentencing decisions imposes almost insurmountable pressure
on defendants to forgo their constitutional right to a trial by
jury. Defendants will face all the risks of conviction, with no
practical upside to acquittal unless they run the board and are
absolved of all charges.

     In short, allowing jury-acquitted conduct to increase a
defendant’s sentence places defendants and their attorneys
between a proverbial rock and a hard place: a hard-fought
partial victory—even, as here, a substantial win on the
majority of counts—can be rendered practically meaningless
when that acquitted conduct nonetheless produces a
drastically lengthened sentence. Even our court, though
bound by precedent, has acknowledged the unfairness
inherent in that result. See, e.g., United States v. Jones, 744
F.3d 1362, 1369 (D.C. Cir.) (“[W]e understand why
appellants find sentencing based on acquitted conduct
unfair.”), cert. denied, 135 S. Ct. 8 (2014); United States v.
Settles, 530 F.3d 920, 923–924 (D.C. Cir. 2008) (“[W]e
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.”).

                               ***

   While I am deeply concerned about the use of acquitted
conduct in this case, I concur in the denial of rehearing en
banc. That is because only the Supreme Court can resolve the
contradictions in the current state of the law, by either
                                8
“put[ting] an end to the unbroken string of cases disregarding
the Sixth Amendment” or “eliminat[ing] the Sixth
Amendment difficulty by acknowledging that all sentences
below the statutory maximum are substantively reasonable.”
Jones, 135 S. Ct. at 9 (Scalia, J., joined by Thomas and
Ginsburg, JJ., dissenting from denial of certiorari). Though I
am not certain Bell’s argument is directly foreclosed by
Supreme Court precedent, my colleagues on the panel have
done their best to navigate existing precedent, recognizing
that the Supreme Court has thus far declined to address this
issue. Going en banc would only delay affording the
Supreme Court another opportunity to take up this important,
frequently recurring, and troubling contradiction in sentencing
law.
