                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0142n.06
                           Filed: February 18, 2009

                                           No. 07-5011

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                        )
                                                 )
       Plaintiff-Appellee,                       )
                                                 )
v.                                               )    ON APPEAL FROM THE UNITED
                                                 )    STATES DISTRICT COURT FOR THE
SHONTADONTA BROOKS,                              )    WESTERN DISTRICT OF TENNESSEE
                                                 )
       Defendant-Appellant.                      )



       Before: CLAY, SUTTON and McKEAGUE, Circuit Judges.


       SUTTON, Circuit Judge. Shontadonta Brooks pleaded guilty to possessing a shotgun while

a felon and now appeals the resulting 120-month sentence. Because the district court permissibly

increased the length of his sentence after finding that he had used the gun to kidnap and rape a

woman, we affirm.


                                                 I.


       A federal grand jury indicted Brooks on two counts arising from an assault on July 24, 2004:

being a felon in possession of a firearm, see 18 U.S.C. § 922(g), and possessing an unregistered

shotgun with a less-than-eighteen-inch barrel, see 26 U.S.C. §§ 5841, 5861(d), 5871. In exchange

for Brooks’ guilty plea to the felon-in-possession charge, the government dropped the sawed-off

shotgun charge. As a result of this same incident, state prosecutors filed state-law charges against

Brooks. After a trial on these charges, a jury acquitted Brooks of two charges (aggravated kidnaping

and aggravated rape) and convicted him of one (assault).
No. 07-5011
United States v. Brooks

       At sentencing on Brooks’ federal charge, the court heard testimony from the victim of the

crime, Marissa Robinson, who stated that, on the night of July 24, 2004, Brooks had abducted her

at gunpoint and raped her in his car. Despite the state-court acquittals for aggravated kidnaping and

aggravated rape, the district court concluded that Brooks had kidnaped and raped Robinson. Relying

in part on this finding, the court determined that the relevant federal sentencing guidelines range

would be 324–405 months. It then noted, however, that it could not impose a sentence higher than

the congressional statutory maximum of 120 months for the possession offense and therefore
imposed a ten-year sentence. 18 U.S.C. § 924(a)(2). Brooks appeals his sentence but does not

challenge his underlying guilty plea.


                                                  II.


       Brooks first argues that the district court violated his Sixth Amendment right to a jury trial

by relying upon acquitted conduct to increase his sentence. But this court recently rejected the same

argument. “So long as the defendant receives a sentence at or below the statutory ceiling,” we held,

the district court does not violate a defendant’s right to a jury trial by “looking to other facts,

including acquitted conduct, when selecting a sentence within that statutory range.” United States

v. White, 551 F.3d 381, 385 (6th Cir. 2008) (en banc). In finding these sentencing facts using a

preponderance-of-the-evidence standard, the district court acted consistently with these requirements.

See id. at 385–86; United States v. Mickens, 453 F.3d 668, 673 (6th Cir. 2006).


       In view of White, we need not address another issue lurking here: whether, even if the Sixth

Amendment prohibited a federal sentencing judge from relying on conduct that formed the basis for

a jury’s acquittal in a federal criminal trial (the fact pattern in White), the same bar would extend to

conduct underlying a state-court jury’s acquittal (the fact pattern here). On the one hand, the dual-

sovereign exception to the Fifth Amendment’s Double Jeopardy Clause might suggest that a failed


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United States v. Brooks

state-court prosecution would have no impact on a later federal-sentencing proceeding. Under that

doctrine, the federal government may try and convict a defendant of an offense in federal court even

after he has been acquitted of the same conduct in a state-court criminal trial arising from a state

government’s criminal prosecution—and vice versa. See Abbate v. United States, 359 U.S. 187,

194–95 (1959); United States v. Jackson, 473 F.3d 660, 669 (6th Cir. 2007). On the other hand,

were the Supreme Court to hold that federally acquitted conduct could not be considered in federal

sentencing, its reasoning could extend to state-court acquittals as well. Given the existence of White,
we leave the issue for another day.


       In the alternative, Brooks argues that, even if the district court was allowed to consider

acquitted conduct, there was insufficient evidence of the alleged abduction and rape to sustain the

court’s finding. We reverse such findings only if they are clearly erroneous, United States v. Smith,

549 F.3d 355, 361 (6th Cir. 2008), a standard Brooks has failed to meet. The victim gave a first-

hand account of the abduction and rape. And a nurse trained in sexual forensic examinations

testified that the victim’s injuries to the soft pallette of her mouth and to her posterior fourchette

were “consistent with rape.” JA 71. Although Brooks insists that the sex was consensual and that

Robinson’s testimony was motivated by a desire to obtain compensation from him, the district court

disbelieved him—a conclusion it could permissibly reach on this record, see United States v. Hadley,

431 F.3d 484, 514 (6th Cir. 2005).


       Attempting to rebut the court’s credibility finding, Brooks argues that the alleged rape was

physically improbable because Robinson testified that it lasted for “two to three hours,” JA 40, that

it took place in the front seat of his car and that he kept the shotgun pointed at her at all times. But

the victim also testified that she was not consulting her watch during the assault, and physical

evidence backed up Robinson’s testimony, leaving us with the conclusion that the district court did

not clearly err in finding that what Robinson said happened did happen.

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United States v. Brooks

                                       III.


       For these reasons, we affirm.




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