                               In the

    United States Court of Appeals
                 For the Seventh Circuit
No. 17-1406

UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,

                                  v.


BYRON J. HOLTON,
                                                Defendant-Appellant.


         Appeal from the United States District Court for the
                     Southern District of Illinois.
         No. 3:15-cr-30016-SMY-1 — Staci M. Yandle, Judge.



   ARGUED OCTOBER 4, 2017 — DECIDED OCTOBER 13, 2017


   Before BAUER, EASTERBROOK, and MANION, Circuit Judges.
    PER CURIAM. Byron Holton pleaded guilty to robbing a
grocery store in southern Illinois while carrying and using a
firearm, and a jury found him guilty of conspiring to commit
Hobbs Act robbery (a robbery affecting interstate commerce).
In sentencing Holton on the conspiracy count, the district judge
imposed a prison term roughly four years above the recom-
2                                                   No. 17-1406

mended Guidelines sentence. The judge based the sentence
on other robberies that Holton committed, and that were
relevant to his conspiracy conviction, but for which he was not
charged. He contends that the district judge abused her
discretion by relying on uncharged conduct as the basis for
imposing an above-Guidelines sentence. Because the Supreme
Court has held that a district judge may consider evidence
of conduct that is relevant to the offense of conviction, even if
that conduct is uncharged, we affirm the judgment.
    We begin with some background. Holton lost his factory
job and, in need of money, agreed with two friends to rob drug
dealers. After the group successfully robbed several drug
dealers, it redirected its efforts to target grocery stores,
including a Shop ‘n Save. Once Holton knocked off this store,
law enforcement agents tracked him down, and he confessed
during questioning to participating in robbing the Shop ‘n
Save.
    In a second superseding indictment, the government
charged Holton with seven counts: one count for conspiring to
commit Hobbs Act robbery in violation of 18 U.S.C. § 1951;
three counts of Hobbs Act robbery for hits on the Shop ‘n Save
and two other stores, Q-Mart and Alps Grocery Store, in
violation of 18 U.S.C. § 1951; and three counts of using a
firearm during each of these grocery store robberies—all
crimes of violence—in violation of 18 U.S.C. § 924(c)(1)(A). He
was not charged with robbing the drug dealers. Holton
pleaded guilty to two counts—Hobbs Act robbery of the Shop
‘n Save and the § 924(c) charge of doing so while using a
firearm—but he went to trial on the other charges. A jury
No. 17-1406                                                   3

found him guilty of conspiracy but acquitted him of the
remaining charges.
    The parties did not contest the judge’s calculations of the
Guidelines ranges for Holton’s crimes. For the § 924(c) offense
for which Holton had pleaded guilty, the judge determined
that it carried at least a seven-year sentence, to be served
consecutively to any other sentence imposed. As to the
convictions for conspiracy and robbing the Shop ‘n Save,
grouped together for Guidelines purposes, see U.S.S.G.
§ 3D1.2(a), the judge declared that the advisory Guidelines
range was 41-51 months based on Holton’s offense level of 20
and criminal history category of III.
    Holton requested a prison term that fell “at the low end” of
the Guidelines range, but focused his sentencing argument
on why he should not receive a term above the Guidelines
range. He argued that it would violate his Fifth and Sixth
Amendment rights if the court decided that acquitted conduct
(the Q-Mart and Alps Grocery Store robberies) and uncharged
conduct (the drug-dealer robberies) justified him receiving an
above-Guidelines sentence. He contended that if the judge
considered this conduct relevant, she would repudiate the
jury’s verdict and unconstitutionally punish him for crimes for
which he was not convicted.
   The government argued that, in considering the factors
under 18 U.S.C. § 3553(a), the court should impose a sentence
of 25 years’ imprisonment because Holton was “one of the
most violent and dangerous criminals in our society.” The
government focused on the expansive nature and circum-
stances of the conspiracy. The government asserted that a
4                                                 No. 17-1406

preponderance of the evidence showed that Holton had
robbed at gunpoint various drug dealers and the Q-Mart and
Alps Grocery Store before the conspiracy led him to commit
the Shop ‘n Save robbery. The government also contended that
an above-Guidelines sentence was needed “to reflect the
danger of bodily harm Holton created” during the robberies
and to protect the public by “incapacitat[ing]” him.
    The district judge imposed prison terms of 96 months for
the conspiracy offense and 51 months for the robbery convic-
tion, to be served concurrently, and 84 months for the § 924(c)
offense, as well as five years’ supervised release. The judge
acknowledged that she had the discretion to consider acquitted
conduct but declined to do so because, she said, that would
“totally denigrate[] the Sixth Amendment and would [] be
tantamount to jury nullification.” But the judge also thought
a sentence within the Guidelines range for the conspiracy
offense would not appropriately reflect the seriousness or
nature of this crime. She explained that based on the trial
evidence, the conspiracy began with “robbing drug dealers”
and “evolved” into robbing other businesses, including the
Shop ‘n Save. Because the drug-dealer robberies were “con-
nected in a substantial way to the conspiracy charge and
conviction,” they were “significantly relevant” to the “nature
and circumstances of that conspiracy” as “uncharged conduct
which I have authority to consider.” The judge ultimately
decided that the drug-dealer robberies warranted a harsher
sentence.
    On appeal, Holton argues that the district judge imposed
a substantively unreasonable sentence by relying on uncharged
conduct (the drug-dealer robberies) as the basis for imposing
No. 17-1406                                                        5

an above-Guidelines sentence on the conspiracy count. He first
contends that the judge wrongly supplanted the jury’s fact-
finding role and improperly used a preponderance-of-the-
evidence standard (instead of beyond a reasonable doubt)
when determining that he robbed drug dealers. In support of
this argument, he quotes Justice Scalia, who, in a dissent from
a denial of certiorari, disapproved of judges finding facts at
sentencing about uncharged or acquitted conduct. According
to Justice Scalia, “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.” Jones
v. United States, 135 S. Ct. 8, 8 (2014) (Scalia, J., dissenting from
the denial of certiorari). In the alternative, Holton asserts that
the district judge wrongly assumed that “if Appellant was
convicted on the conspiracy count, it was proven beyond a
reasonable doubt that Appellant was involved with the
uncharged conduct … .”
    Neither argument is availing. The Supreme Court has long
authorized judges to consider at sentencing criminal conduct
that is relevant to the offense of conviction, even if the defen-
dant was not was convicted for that conduct, “so long as that
conduct has been proved by a preponderance of the evidence.”
United States v. Watts, 519 U.S. 148, 157 (1997). See also United
States v. Heckel, 570 F.3d 791, 797 (7th Cir. 2009). Exercising this
discretion does not violate a defendant’s constitutional rights
because as the Court explained, “sentencing enhancements do
not punish a defendant for crimes of which he was not con-
victed, but rather increase his sentence because of the manner
in which he committed the crime of conviction.” Watts, 519 U.S.
6                                                  No. 17-1406

at 154. The dissent in Jones does not undermine Watts as
controlling authority.
    In this case, the judge’s sentencing of Holton for the
conspiracy conviction complied with Watts. Although she did
not state explicitly that Holton more likely than not robbed
drug dealers, she said enough to show that she reached this
conclusion and therefore did not err. When a judge does
not find explicitly that a defendant committed uncharged
conduct by a preponderance of the evidence, the sentence will
be upheld if “it is clear from the record” that the judge deter-
mined that the defendant is responsible for it. United States v.
White, 737 F.3d 1121, 1141 (7th Cir. 2013) (internal quotation
marks and citation omitted). At sentencing, the judge ex-
plained that the drug-dealer robberies “represent[ed] un-
charged conduct which I have authority to consider.” The trial
evidence, she observed, showed that the robbery conspiracy
had “evolved” from robbing drug dealers to robbing the Shop
‘n Save. The earlier robberies therefore were “significantly
relevant” to her consideration of “the nature and circumstances
of that conspiracy offense.” These statements also rebut
Holton’s alternative argument that the judge incorrectly
assumed that the conspiracy conviction meant that the govern-
ment had proven the drug-dealer robberies beyond a reason-
able doubt. The judge merely decided that the earlier robberies
were relevant to sentencing Holton for the conspiracy offense
and that she was satisfied from the trial evidence that the
conduct had occurred.
    The judgment of the district court is AFFIRMED.
