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

No. 05-4049
UNITED STATES OF AMERICA,
                                                  Plaintiff-Appellee,
                                 v.

DEWAN ANTHONY HORNE,
                                              Defendant-Appellant.
                          ____________
             Appeal from the United States District Court
     for the Southern District of Indiana, Indianapolis Division.
              No. 05 CR 032—David F. Hamilton, Judge.
                          ____________
   ARGUED DECEMBER 8, 2006—DECIDED FEBRUARY 5, 2007
                          ____________


  Before EASTERBROOK, Chief Judge, and POSNER and RIPPLE,
Circuit Judges.
  POSNER, Circuit Judge. The defendant advertised ficti-
tious vintage cars on eBay. If a person interested in such
cars saw the ad and communicated with the defendant and
they struck a deal, the defendant would offer him the
option of coming to Indianapolis to pick up the car and
pay for it on the spot in cash or the equivalent. With the
aid of a gun-toting accomplice the defendant would
then try to rob the car buff of the cash and anything else
of value; in the only completed robbery, the take in-
cluded the navigation system in the victims’ truck. A jury
2                                              No. 05-4049

convicted the defendant of violating, conspiring to vio-
late, and attempting to violate the Hobbs Act, 18 U.S.C.
§ 1951(a), which so far as bears on this case makes robbery
that “in any way or degree obstructs, delays, or affects
commerce” a federal crime, and also of using a gun in
connection with a crime of violence, in violation of 18
U.S.C. § 924(c)(1)(A). The judge imposed sentences of
112 months for the Hobbs Act violations and 84 months
for the gun violation, for a total of 196 months.
  The defendant argues that his crimes, since they all
occurred in Indianapolis in face-to-face encounters with his
victims and no car or cash or any other object was trans-
ported across state lines, did not affect interstate com-
merce. This ignores the fact that eBay, the online auction
site, is an avenue of interstate commerce, like an inter-
state highway or long-distance telephone service. The
people who buy and sell through eBay are scattered
around the world—indeed most of the vehicle sales made
through eBay are interstate or international. Claire
Atkinson, “eBay Motors—A Viable Remarketing Option
for Fleet?,” Automotive Fleet, Sept. 2006, at www.fleet-
central.com/af/t_inside.cfm?action=article_pick&storyI
D=985, visited Jan. 16, 2007; Edmunds.com, “Buying and
Selling Cars on eBay,” at www.whydowork.com/
resources/articles/selling-a-car-on-ebay.php, visited Dec.
29, 2006; eBizAutos, “eBay Motors Marketing,” at
http://dealers.ebizautos.com/features/ebay_motors.cfm,
visited Dec. 29, 2006. The Internet, which is the communi-
cation channel that people use in transacting through
eBay, crosses state and indeed international boundaries,
and the buy and sell offers communicated over it in this
case created interstate transactions and were affected by
the defendant’s fraud. See United States v. Sullivan, 451
No. 05-4049                                                 3

F.3d 884, 890-91 (D.C. Cir. 2006); United States v. Tykarsky,
446 F.3d 458, 470 (3d Cir. 2006); United States v. MacEwan,
445 F.3d 237, 244-46 and n. 8 (3d Cir. 2006); United States v.
Hornaday, 392 F.3d 1306, 1311 (11th Cir. 2004); ACLU v.
Johnson, 194 F.3d 1149, 1161 n. 9 (10th Cir. 1999). The
government thus had no need to argue that the defendant
had several victims rather than one, that they traveled
from other states, and that they carried their money
across state lines.
  The defendant further argues that it was unconstitu-
tional for the district judge, in deciding how severely to
punish him, to take account of the gun charge of which he
was acquitted. He was convicted with respect to the
gun used in the completed robbery but acquitted with
respect to the gun used in an attempted robbery. The
judge used the latter charge, which he ruled had been
proved by a preponderance of the evidence albeit not by
proof beyond a reasonable doubt, to increase the defen-
dant’s sentencing range.
  The defendant’s argument is wrong. E.g., United States
v. Price, 418 F.3d 771, 787-88 and n. 7 (7th Cir. 2005);
United States v. Dorcely, 454 F.3d 366, 371-73 (D.C. Cir.
2006). All an acquittal means is that the trier of fact,
whether judge or jury, did not think the government had
proved its case beyond a reasonable doubt. The facts that
a sentencing judge finds in determining what sentence
to impose—such facts as the defendant’s criminal his-
tory, his cooperation or lack thereof in the government’s
investigation, and his remorse or lack thereof—need
be found only by a preponderance of the evidence, the
normal civil standard. This has been the rule since before
the guidelines, United States v. Watts, 519 U.S. 148 (1997)
(per curiam); McMillan v. Pennsylvania, 477 U.S. 79, 91-93
4                                                 No. 05-4049

(1986); United States v. Masters, 978 F.2d 281, 286-87 (7th Cir.
1992); United States v. Gooden, 892 F.2d 725, 728 (8th Cir.
1989); see also 18 U.S.C. § 3661, and its constitutionality
was affirmed by the Supreme Court in the McMillan case.
It is inconsistent with giving controlling weight at the
sentencing phase to an acquittal of one or some of the
charges that were before the jury. You can think it slightly
more likely than not that a defendant committed some
crime without thinking it so much more likely that you
would vote to convict him.
  An inference that the jury found the defendant to be
actually innocent of the gun charge would be partic-
ularly far-fetched because there is no doubt that his
accomplice brandished a gun during the attempted rob-
bery in question. The judge thought the acquittal was
due to the fact that the jury had learned from the cross-
examination of one of the defendant’s accomplices that
to convict the defendant of a second gun charge would
subject him to a 25-year mandatory minimum sentence.
  This is not a case in which a jury convicts a defendant of
one very minor crime and acquits him of the serious
crimes with which he was charged, and the judge then
bases the sentence almost entirely on those crimes. We
pointed out in United States v. Reuter, 463 F.3d 792, 793 (7th
Cir. 2006), that 18 U.S.C. § “3553(a)(2)(A) includes among
the factors to be considered in sentencing ‘the need for
the sentence imposed . . . to reflect the seriousness of the
offense, to promote respect for the law, and to provide
just punishment for the offense.’ A judge might reason-
ably conclude that a sentence based almost entirely on
evidence that satisfied only the normal civil standard
of proof would be unlikely to promote respect for the law
or provide just punishment for the offense of conviction.
No. 05-4049                                               5

That would be a judgment for the sentencing judge to
make and we would uphold it so long as it was reason-
able in the circumstances.” The judge in this case used
the gun charge of which the defendant had been ac-
quitted to increase the guidelines range for the Hobbs
Act charges to 97 to 121 months from 51 to 63 months,
and sentenced him to 112 months. Supposing that with-
out this enhancement the judge would have sentenced
him to 57 months (the midpoint of the lower guidelines
range), the difference is 55 months. This is considerable,
but less than half the sentence.
   Nor does the fact that some district judges, unlike the
judge in this case, are refusing to take account of con-
duct of which the defendant is acquitted in determining
his sentence create “unwarranted sentence disparities” of
which our defendant can take advantage in arguing that
his sentence is unreasonable. 18 U.S.C. § 3553(a)(6). Those
judges are mistaken if they think they’re barred from
considering such conduct. If there are unwarranted
disparities as a result, it is the government that should be
complaining, not a defendant who was properly sentenced,
as was the defendant in this case. Nor would the existence
of unwarranted disparities imply, as the defendant be-
lieves, that all future sentences would have to be leveled
down to the most lenient sentences that had been given in
the past. Then a handful of judges—the most lenient—
would control sentencing nationwide.
  It may seem questionable for the judge to have used
the gun charge on which the defendant was acquitted
to enhance the sentence for violating the Hobbs Act
rather than the sentence for using a gun. But section
2B3.1(b)(2) of the guidelines specifies a six-level enhance-
ment (the enhancement that the judge imposed in order
6                                              No. 05-4049

to increase the guidelines range as he did) when a gun
is used, though not fired, in the course of a bank robbery
or attempted bank robbery; there isn’t a guidelines pro-
vision for enhancing a mandatory minimum sentence
under section 924(c) on the basis of a second illegal use
of a gun.
                                                AFFIRMED.

A true Copy:
       Teste:

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




                   USCA-02-C-0072—2-5-07
