           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                           2      United States v. Hughes                    No. 02-2026
        ELECTRONIC CITATION: 2004 FED App. 0168P (6th Cir.)
                    File Name: 04a0168p.06                                                       _________________
                                                                                                      COUNSEL
UNITED STATES COURT OF APPEALS
                                                                             ARGUED: Margaret Raben, GUREWITZ & RABEN,
                   FOR THE SIXTH CIRCUIT                                     Detroit, Michigan, for Appellant. Krishna S. Dighe, UNITED
                     _________________                                       STATES ATTORNEY, Detroit, Michigan, for Appellee.
                                                                             ON BRIEF: Margaret Raben, GUREWITZ & RABEN,
 UNITED STATES OF AMERICA , X                                                Detroit, Michigan, for Appellant. Krishna S. Dighe, UNITED
            Plaintiff-Appellee, -                                            STATES ATTORNEY, Detroit, Michigan, for Appellee.
                                   -
                                   -  No. 02-2026                                                _________________
           v.                      -
                                    >                                                                OPINION
                                   ,                                                             _________________
 MARSHALL DWAYNE                   -
 HUGHES ,                          -                                           RYAN, Circuit Judge. The defendant, Marshall Dwayne
         Defendant-Appellant. -                                              Hughes, presents three issues for us to decide, on this, his
                                   -                                         direct appeal from his convictions for theft of government
                                  N                                          property, in violation of 18 U.S.C. § 641, and being a felon in
      Appeal from the United States District Court                           possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
     for the Eastern District of Michigan at Detroit.                        The issues are:
  No. 94-80665—Bernard A. Friedman, District Judge.
                                                                                 1) whether, at sentencing, the district court was bound
                    Argued: January 27, 2004                                        to apply the penalty provision of 18 U.S.C. § 641
                                                                                    that was in effect at the time of sentencing, rather
               Decided and Filed: June 4, 2004                                      than the penalty provision that was in effect at the
                                                                                    time Hughes committed the underlying offense;
Before: MARTIN, RYAN,* and MOORE, Circuit Judges.                                2) whether Hughes was entitled to a three-point
                                                                                    reduction in offense level for acceptance of
                                                                                    responsibility, rather than two points; and
                                                                                 3) whether the district court’s use of the Guidelines’
                                                                                    cross-reference provisions violated Apprendi v. New
                                                                                    Jersey, 530 U.S. 466 (2000).
    *                                                                          We answer all three questions in the negative, as the district
      Although Judge Ryan was not present for the oral argument in this
app eal, he otherwise fully participated in the case and has listened with   court did; therefore, we shall affirm.
care to the tape reco rded oral argume nts.

                                    1
No. 02-2026                    United States v. Hughes       3    4      United States v. Hughes                     No. 02-2026

         I. Factual and Procedural Background                     conviction, the district court should have applied amended
                                                                  18 U.S.C. § 641, which, at the time of sentencing, provided
  The facts are not in dispute. On January 17, 1994, Hughes       for a statutory maximum of one year of imprisonment for the
and an accomplice robbed a U.S. Deputy Marshal in the city        theft of government property whose value did not exceed
of Detroit. While Hughes’s accomplice pointed a gun at the        $1,000, see 18 U.S.C. § 641 (2000), rather than the more
Marshal’s head and back, Hughes took the Marshal’s jewelry,       severe ten-year sentence that was in effect at the time of the
service revolver, money, and leather coat. Hughes and his         commission of the offense.
accomplice then searched and threatened to kill another man
who had been assisting the Marshal. It is undisputed that the        “We examine de novo the purely legal question of whether
stolen service revolver belonged to the U.S. Government and       a new statute applies to pending cases.” Wright v. Morris,
had a value of more than $100, but less than $1,000.              111 F.3d 414, 417 (6th Cir. 1997). For the reasons that
                                                                  follow, we conclude that the district court properly rejected
  Originally, Hughes was convicted and sentenced after a          Hughes’s argument and applied the penalty provision that was
jury found him guilty of theft of government property and         in effect at the time Hughes committed the underlying theft of
being a felon in possession of a firearm. After his conviction    government property.
and sentence were upheld on direct appeal, Hughes sought
habeas relief. The district court denied relief, but this court      In January 1994, when Hughes robbed the U.S. Marshal of
reversed and remanded the case, finding ineffective assistance    his government-owned service revolver, the penalty provision
of counsel at trial. Hughes v. United States, 258 F.3d 453,       of 18 U.S.C. § 641 provided, in pertinent part, that a person
464 (6th Cir. 2001). On remand, Hughes pleaded guilty to          guilty of theft of government property “[s]hall be fined . . . or
both counts, and the district court sentenced him on July 29,     imprisoned not more than ten years, or both; but if the value
2002.                                                             of such property does not exceed the sum of $100, he shall be
                                                                  fined . . . or imprisoned not more than one year, or both.”
  Applying the 1994 Sentencing Guidelines, the district court     18 U.S.C. § 641 (1988). The penalty provision in effect in
found an adjusted offense level of 31 and a guideline range of    July 2002, when Hughes was sentenced, provided for a one-
151-188 months, based on a criminal history category of IV.       year statutory maximum “if the value of such property does
The court sentenced Hughes to 120 months on Count 1, theft        not exceed the sum of $1,000.” 18 U.S.C. § 641 (2000).
of government property, and 68 months on Count 2, being a
felon in possession of a firearm, to be served consecutively.       The general rule, derived from the common law, is that a
The court also imposed a three-year term of supervised            court must “apply the law in effect at the time it renders its
release to follow Hughes’s incarceration and ordered him to       decision, unless doing so would result in manifest injustice or
pay restitution and a special assessment.                         there is statutory direction or legislative history to the
                                                                  contrary.” Bradley v. Sch. Bd. of Richmond, 416 U.S. 696,
                        II. Analysis                              711 (1974). Nevertheless, the general saving clause, found at
                                                                  1 U.S.C. § 109, provides:
                              A.
                                                                        The repeal of any statute shall not have the effect to
  The first issue Hughes presents arises from his claim that,         release or extinguish any penalty, forfeiture, or liability
in determining the appropriate sentence for his theft                 incurred under such statute, unless the repealing Act shall
No. 02-2026                    United States v. Hughes         5   6    United States v. Hughes                     No. 02-2026

  so expressly provide, and such statute shall be treated as       Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653,
  still remaining in force for the purpose of sustaining any       660 (1974) (internal quotation marks and citations omitted).
  proper action or prosecution for the enforcement of such
  penalty, forfeiture, or liability. The expiration of a              In Marrero, the defendant was ineligible for parole under
  temporary statute shall not have the effect to release or        a statute that was in effect at the time he was sentenced. Id.
  extinguish any penalty, forfeiture, or liability incurred        at 655. After the statute was repealed, Marrero initiated
  under such statute, unless the temporary statute shall so        habeas corpus proceedings to determine his parole eligibility
  expressly provide, and such statute shall be treated as          status. Id. The Court held, inter alia, that 1 U.S.C. § 109
  still remaining in force for the purpose of sustaining any       barred the Board of Parole from considering the defendant for
  proper action or prosecution for the enforcement of such         parole. Marrero, 417 U.S. at 659. The Court explicitly noted
  penalty, forfeiture, or liability.                               that the saving clause “bar[s] application of ameliorative
                                                                   criminal sentencing laws repealing harsher ones in force at the
1 U.S.C. § 109 (1997).                                             time of the commission of an offense.” Id. at 661.
   Thus, in evaluating Hughes’s claim, we must consider               Several of our sister circuits have come to the same
whether 18 U.S.C. § 641 imposes a “penalty, forfeiture, or         conclusion. In United States v. Jacobs, 919 F.2d 10 (3d Cir.
liability” saved from release or extinguishment by 1 U.S.C.        1990), the issue before the Third Circuit was “whether a
§ 109. A review of the plain language of the statute, together     defendant [was] eligible for probation based on the offense
with relevant Supreme Court precedent, leads us to the             classification in effect at the time she committed the offense
conclusion that it does.                                           or at the time she was sentenced.” Id. at 10-11. The statute
                                                                   in effect when the defendant committed the offense provided
  Section 641 plainly imposes a penalty for the theft of           that her offense was a Class B felony, with the result that she
government property. The language of the statute, providing        was ineligible for probation. Id. at 11. Prior to her
that a person guilty of theft of government property “[s]hall      sentencing, the statute was amended such that her offense was
be fined . . . or imprisoned,” could hardly be any clearer. The    a Class C felony, which would have made her eligible for
Supreme Court has explained that the saving clause was             probation. Id. The Third Circuit held that “section 109
enacted                                                            applies to amendments of statutory classifications that render
                                                                   a defendant eligible for probation.” Id. at 12. Likewise, in
  to abolish the common-law presumption that the repeal            United States v. Cook, 890 F.2d 672 (4th Cir. 1989), the
  of a criminal statute resulted in the abatement of all           Fourth Circuit held that the saving statute prevented a
  prosecutions which had not reached final disposition in          defendant who was ineligible for probation at the time she
  the highest court authorized to review them.                     committed the offense from benefitting from a statutory
  Common-law abatements resulted not only from                     amendment to the offense classifications that would have
  unequivocal statutory repeals, but also from repeals and         rendered her eligible for probation. Id. at 676. Finally, in a
  re-enactments with different penalties, whether the              case factually similar to Cook, the Eighth Circuit held that a
  re-enacted legislation increased or decreased the                defendant “is not entitled to benefit from changes in a
  penalties. To avoid such abatements—often the product            criminal penalty statute enacted after he committed his
  of legislative inadvertence—Congress enacted 1 U.S.C.            offense.” United States v. O’Meara, 33 F.3d 20, 21 (8th Cir.
  § 109, the general saving clause . . . .                         1994).
No. 02-2026                    United States v. Hughes       7    8     United States v. Hughes                      No. 02-2026

  We hold that the penalty provision of 18 U.S.C. § 641 in          We review the district court’s factual findings for purposes
effect at the time Hughes committed the underlying theft is       of sentencing under the Guidelines for clear error, and we
saved from release or extinguishment by 1 U.S.C. § 109. The       “give due deference to the district court’s application of the
district court properly rejected Hughes’s attempt to take         guidelines to the facts.” United States v. Webb, 335 F.3d 534,
advantage of an ameliorative criminal sentencing law that         537 (6th Cir. 2003) (internal quotation marks and citation
decreased the penalty for the theft of government property        omitted); Robertson, 260 F.3d at 506. “Issues involving the
whose value is greater than $100, but not more than $1,000.       interpretation of Guidelines provisions, however, are legal
                                                                  questions which this court reviews de novo.” Robertson, 260
                              B.                                  F.3d at 506.
  Hughes’s second argument is that he was entitled to a three-      Although the district court found that Hughes was entitled
point reduction in offense level for his acceptance of            to a two-point reduction in offense level for acceptance of
responsibility. He contends that the district court clearly       responsibility, it declined to award a third point for “super
erred in granting him a mere two-point reduction. We              acceptance” of responsibility because “[Hughes] did not
disagree.                                                         admit his involvement in the instant offense in a timely
                                                                  manner. Further, he did not timely notify authorities of his
   United States Sentencing Guideline Section 3E1.1(a)            intention to enter a plea of guilty thereby permitting the
provides that a defendant’s offense level should be decreased     Government to avoid preparing for trial, and permitting the
if he “clearly demonstrates acceptance of responsibility for      Court to allocate its resources efficiently . . . .”
his offense.” U.S.S.G. § 3E1.1(a) (1994). Pursuant to
Section 3E1.1(b), a district court must award an additional          We have carefully examined the record and find no clear
one-point reduction in the offense level of a defendant who       error in the district court’s findings. Hughes was a fugitive
has demonstrated “super acceptance” of responsibility by          for 14 months after he committed these crimes, and he forced
either “(1) timely providing complete information to the          the government to proceed to trial in May 1995. He did not
government concerning his own involvement in the offense;         fully accept responsibility for his acts until it was apparent
or (2) timely notifying authorities of his intention to enter a   that there was overwhelming evidence against him, based on
plea of guilty, thereby permitting the government to avoid        the government’s efforts in preparing and presenting the case
preparing for trial and permitting the court to allocate its      in the first instance. Finally, Hughes did not plead guilty until
resources efficiently.” U.S.S.G. § 3E1.1(b) (1994); see also      three weeks before his second trial was scheduled to begin,
United States v. Robertson, 260 F.3d 500, 507 (6th Cir.           and even then, he attempted to withdraw his guilty plea.
2001). A defendant has the burden of proving, by a                Based on the record before us, we cannot say that the district
preponderance of the evidence, that a reduction under Section     court clearly erred in declining to award Hughes a third point
3E1.1(b) is appropriate. United States v. Benjamin, 138 F.3d      for “super acceptance” of responsibility.
1069, 1075 (6th Cir. 1998). The commentary to Section
3E1.1 notes that conduct qualifying for a reduction under                                        C.
Section 3E1.1(b) will generally “occur particularly early in
the case.” U.S.S.G. § 3E1.1, comment. (n.6) (1994).                 Finally, Hughes argues that the district court violated his
                                                                  Fifth and Sixth Amendment rights by cross-referencing his
                                                                  § 922(g) conviction in accordance with U.S.S.G.
No. 02-2026                     United States v. Hughes         9   10    United States v. Hughes                     No. 02-2026

§§ 2K2.1(c)(1)(A) and 2X1.1(c)(1) to U.S.S.G. § 2B3.1, the            determined that the attempt was expressly covered by the
Sentencing Guideline for robbery. Hughes claims that the              Guidelines’ provision for attempted murder, see U.S.S.G.
district court impermissibly sentenced him as if he had               § 2A2.1(a)(1), which creates a base-offense level of
committed a crime, robbery, for which he was never charged            twenty-eight.
and for which no jury found him guilty beyond a reasonable
doubt. He argues that the Guidelines may not be applied in          Id. at 297.
this manner, unless a jury first finds beyond a reasonable
doubt that he engaged in the alleged conduct. He relies on             Helton argued that the district court impermissibly and
United States v. Stubbs, 279 F.3d 402 (6th Cir. 2002), and          unconstitutionally “sentenced him as if he had committed a
Apprendi v. New Jersey, 530 U.S. 466 (2000), to support this        crime (attempted murder) for which he was never charged and
argument.                                                           for which no jury found him guilty beyond a reasonable
                                                                    doubt.” Id. at 299. He argued that applying the Guidelines in
  We review the district court’s legal conclusions de novo          this manner to increase his sentence, where a jury had not first
and its fact-finding for clear error. United States v. Griffis,     found beyond a reasonable doubt that he engaged in the
282 F.3d 443, 446 (6th Cir. 2002).                                  alleged conduct, violated his Fifth and Sixth Amendment
                                                                    rights. Id. He relied on Stubbs and Apprendi to support his
   The district court adopted the recommendation of the             argument. Id.
Probation Department and cross-referenced Hughes’s
§ 922(g) conviction for being a felon in possession of a              In addressing Helton’s constitutional challenges to the
firearm in accordance with U.S.S.G. § 2K2.1(c)(1)(A), which         district court’s use of the cross-references, we noted that
directed the application of § 2X1.1(c), which, in turn, directed    “Stubbs . . . is no longer good law. Neither that decision nor
the application of § 2B3.1. Section 2B3.1, the Guideline            the precedents upon which it relied have survived a recent
provision for robbery, creates a base offense level of 20. See      Supreme Court decision delineating the scope of Apprendi.”
U.S.S.G. § 2B3.1 (1994). The court added 13 points for              Id. (internal citations omitted). The Helton court went on to
various adjustments and specific offense characteristics, and       explain:
credited the defendant with two points for acceptance of
responsibility.                                                       [O]nce the jury has determined guilt, the district court
                                                                      may sentence the defendant to the statutory minimum,
  Hughes’s argument that the district court’s use of the              the statutory maximum, or anything in between, based on
Guidelines’ cross-reference provisions violated his Fifth and         its (proper) application of the Guidelines and based on its
Sixth Amendment rights is without merit. We rejected an               (permissible) preponderance-of-the-evidence findings
identical claim in United States v. Helton, 349 F.3d 295 (6th         under the Guidelines. So long as the judge does not
Cir. 2003). In sentencing the defendant in that case,                 sentence the defendant beyond the maximum levels
                                                                      authorized by the statute under which the defendant was
  the district court cross-referenced his § 922(g) conviction         convicted, Harris [v. United States, 536 U.S. 545
  for possession of a firearm in accordance with U.S.S.G.             (2002),] makes clear that the district court does not run
  § 2K2.1(c)(1)(A), concluding that he had used the                   afoul of Apprendi or the constitutional rights that it
  firearm in connection with an attempt to commit another             protects.
  offense. Under U.S.S.G. § 2X1.1(c), the district court
No. 02-2026                   United States v. Hughes    11

Id.
  The Helton court concluded that so long “[a]s no single
sentence exceed[s] the maximum permitted by statute under
any of the . . . counts on which the jury convicted [the
defendant, the defendant’s] constitutional challenge cannot
succeed.” Id. at 300.
  Hughes’s argument is identical in all material respects to
the argument this court rejected in Helton. As the statutory
maximum for each of Hughes’s counts of conviction was 120
months, see 18 U.S.C. § 924(a)(2); 18 U.S.C. § 641 (1988),
and as it is undisputed that no single sentence exceeded the
maximum permitted by statute, the district court’s decision
must be affirmed. See Helton, 349 F.3d at 300.
                     III. Conclusion
  For the foregoing reasons, we AFFIRM the district court’s
judgment.
