
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1541                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                                 HENRY LOMBARD, JR.,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Cyr and Boudin, Circuit Judges.                                           ______________                                 ____________________            Jane Elizabeth  Lee with  whom Ronald Bourget,  by Appointment  of            ___________________            ______________        the Court, and Bourget and Bourget, P.A. were on briefs for appellant.                       _________________________            F. Mark Terison, Assistant  United States Attorney,  with whom Jay            _______________                                                ___        P.  McCloskey, United  States Attorney,  was on  brief for  the United        _____________        States.                                 ____________________                                   December 4, 1996                                 ____________________                 BOUDIN, Circuit  Judge.   This court earlier  upheld the                         ______________            convictions of defendant Henry Lombard; but the court vacated            the life sentence imposed  on one of the counts  and remanded            for   resentencing,  holding  that  the  district  court  had            authority to depart  downward.  United States  v. Lombard, 72                                            _____________     _______            F.3d 170, 187 (1st Cir. 1995) ("Lombard  I").  On remand, the                                            __________            district  court reimposed  the original  sentence.   This new            appeal  raises  a  constitutional  claim  that  Lombard  made            earlier but was not decided on the initial appeal.                                          I.                 The facts are set forth at  length in Lombard I, 72 F.3d                                                       _________            at 172-76, and only the briefest summary is needed to set the            stage.   Lombard and  his half-brother, Hubert  Hartley, were            tried in Maine state court for murdering two acquaintances as            they slept  in Hartley's Maine cabin  on Thanksgiving morning            in  1990.   Despite something  close to  eyewitness testimony            from Hartley's girlfriend, both  men were acquitted by juries            in separate trials in 1992.                 A federal  grand jury then indicted  Lombard and Hartley            for different crimes  relating to the same episode.   Lombard            and Hartley  were charged with  conspiracy, 18 U.S.C.    371,            the  conspiracy  having  multiple  objectives: to  possess  a            firearm in violation  of the felon in  possession statute, 18            U.S.C.    922(g), to travel interstate  to avoid prosecution,            18  U.S.C.   1073, and to remove evidence to prevent seizure,                                         -2-                                         -2-            18 U.S.C.   2232(a).  Lombard  was also charged substantively            under the felon in possession statute and Hartley with aiding            and abetting this crime.                 The  defendants  were  tried  together  on  the  federal            charges  in  1993.    Much  of  the  evidence  concerned  the            commission  of the  same  killings for  which  they had  been            acquitted,  the evidence  being  relevant inter  alia to  the                                                      ___________            flight and removal of evidence charges.   Hartley pled guilty            at the close of the government's case.  Lombard was convicted            on both of the  counts directed against him:   conspiracy and            felon-in-possession.  Lombard's convictions were sustained in            Lombard I and are not now before us.            _________                 At  sentencing, Lombard--without regard to the murders--            was  subject  to a  statutory sentence  of  15 years  to life            because his  prior convictions  brought him within  the armed            career  criminal statute.   18  U.S.C.    924(e).   Under the            Sentencing   Guidelines,  again  without   reference  to  the            murders, the  guideline  sentencing  range  would  have  been            roughly  between 20 and 30 years.   U.S.S.G.   4B1.4; id. ch.                                                                  ___            5, pt. A.1   However,  Lombard had so  many criminal  history            points  over  the  number  needed for  the  highest  criminal                                            ____________________                 1Although the sentencing took  place in September  1994,            the district court applied  the November 1990 edition  of the            guidelines  in order  to  avoid any  ex post  facto problems.                                                 __ ____  _____            United States  v.  Prezioso, 989  F.2d  52, 53-54  (1st  Cir.            _____________      ________            1993).  All references are to that edition.                                         -3-                                         -3-            history  category that  an upward  departure might  have been            imposed.  U.S.S.G.   4A1.3.                 However, the ordinary guideline computation went by  the            boards. The felon in possession guideline provides that where            the firearm is  used in connection with  another offense, the            base  level should be that of the "object" offense.  U.S.S.G.                2K2.1(c)(2),  2X1.1.   The  base  level for  premeditated            murder requires  a life sentence.  Id.   2A1.1; ch. 5, pt. A.                                               ___            Because the  district court found  by a preponderance  of the            evidence that  Lombard had participated  in the  premeditated            murders, the court imposed a life sentence on Lombard.                 On  appeal in Lombard I, this court took note of several                               _________            unusual circumstances,  including the impact on  the sentence            of the uncharged murders,  Lombard's prior acquittal of those            murders, the qualitative  difference between  murder and  the            offense  of  conviction,  and  the extreme  penalty  of  life            imprisonment.   Expressing  but not  resolving constitutional            concerns, the court then  held that these special facts  gave            the   district  court   discretionary  authority   to  depart            downward,  U.S.S.G.     5K2.0,  and remanded  to  permit  the            district court to consider such a departure.  72 F.3d at 184-            85.                    At  the resentencing,  the district  court said  that it            fully   understood  (and   had  understood   previously)  its            authority  to  depart  downward.    But  the  court  remained                                         -4-                                         -4-            convinced that "the appropriate sentence in  this case is the            sentence that  was imposed  initially," and it  reimposed the            life sentence.   Lombard now appeals again,  stating that the            single question  presented  is  whether  the  district  court            violated his "due process right  to proof beyond a reasonable            doubt" as to the murders when it reimposed the life sentence.                                         II.                 At the threshold,  the government  asserts, somewhat  to            our  surprise, that "appellate  jurisdiction does not exist."            Its stated reason  is that  a discretionary  decision by  the            sentencing judge declining to depart from the guideline range            is not subject  to appeal.   While the  premise is  generally            sound, United States  v. Romolo,  937 F.2d 20,  22 (1st  Cir.                   _____________     ______            1991),  Lombard  has  explicitly declined  to  challenge  the            refusal   to  depart;   rather,   he  wants   to  renew   his            constitutional  challenge  to  the  use  of  the  murders  to            establish the guideline range for his sentence.                   There is  nothing outre about the  distinction.  Lombard            is challenging  his sentence, and the  sentence--as many do--            depended  on several  determinants:  here,  the armed  career            criminal  statute, various  decisions  made  in applying  the            guidelines   including   the   finding   that   Lombard   had            participated  in  the  murders,  and  lastly a  discretionary            decision  by  the  district  judge  not  to  depart from  the                                         -5-                                         -5-            guideline  range.   That this  last decision  is unreviewable            hardly precludes review of other parts of the equation.                 A challenge  to the constitutionality  of the guidelines            as applied is certainly a permitted subject for an appeal, 18            U.S.C.   3742(a), and  presents an issue that we  consider de                                                                       __            novo.  United States  v. Carson, 988 F.2d 80, 82  (9th Cir.),            ____   _____________     ______            cert. denied, 510 U.S. 847 (1993).  Of course, there might be            _____ ______            a  law-of-the-case   bar  to  the  appeal,   although  not  a            jurisdictional  one, if  this  court had  fully rejected  the            constitutional claims in  Lombard I.   But Lombard I  plainly                                      _________        _________            said  that constitutional  concerns  did exist  but might  be                                                 ___            mooted by the remand.  72 F.3d at 184-85.                 For reasons we will address in due course, Lombard  does            not place much weight on the  element in this case that would            strike non-lawyers  as the most  troubling: that he  has been            given  a life sentence based  on a finding  that he committed            the  two murders of which he was earlier acquitted.  Instead,            he  argues  that  the   district  court  erred  by  using   a            "preponderance of the evidence" standard to determine that he            had in fact  committed the  prior murders and  then by  using            this finding to sentence  Lombard as if he had  committed the            murders.                 The  framework  for  federal  sentencing   is  familiar.            Departures aside,  the guidelines require  the district court            to calculate  the  guideline  range based  not  only  on  the                                         -6-                                         -6-            conduct comprising  the federal crime of  conviction but also            on "relevant" albeit "uncharged" conduct--here, the murders--            that  the   sentencing  court  finds   actually  occurred  in            connection with that crime.   U.S.S.G.    1B1.3; 2K2.1(c)(2).            And ordinarily the facts at sentencing need be proved only by            a preponderance  of the evidence.   McMillan v. Pennsylvania,                                                ________    ____________            477 U.S. 79, 91 (1986); United States v. Carrozza, 4 F.3d 70,                                    _____________    ________            80-81 (1st Cir. 1993), cert. denied, 114 S. Ct. 1644 (1994).                                   _____ ______                 The use  of uncharged  conduct at sentencing  stems from            the  longstanding  view  that  the judge  should  employ  all            relevant information  that helps to decide  where, within the            broad range  usually fixed by statute,  this defendant should                                                    ____            be sentenced.   United States  v. Tucker, 404  U.S. 443,  446                            _____________     ______            (1972);  18 U.S.C.    3577.   As  for the  lower standard  of            proof, courts sometimes say that "guilt" is the crucial event            that  alone requires  proof  beyond a  reasonable doubt,  and            sometimes  that more  procedural  constraints would  bog down            sentencing.  See, e.g., McMillan, 477 U.S. at 92 n.8.                         ___  ____  ________                 In  the  face  of   historical  practice  and   judicial            precedent,  a  frontal attack  on  these  practices would  be            difficult, and Lombard does not  attempt it.  Rather, quoting            "the tail that wags  the dog" metaphor in McMillan,  477 U.S.                                                      ________            at 88,  Lombard says that  due process requires the  use of a            "beyond a reasonable doubt" standard in cases where, as here,            the  finding that the uncharged  crime occurred has so severe                                         -7-                                         -7-            an effect  on the sentence.     He adds that  in view of  the            jury's prior acquittal,  there must be a reasonable  doubt in            this case.                 This  is not an argument that would likely have had much            success prior to  the guidelines, cf. Patterson  v. New York,                                              ___ _________     ________            432 U.S.  197, 214 (1977),  but the  guidelines provide  some            basis for reconsidering  the issue.   In the past,  uncharged            conduct was  merely a  background fact, like  the defendant's            criminal record or his habit of kicking his dog, that a judge            might  consider  in  making  the  highly  discretionary,  and            largely ad hoc, decision as to sentence.  The guidelines have            altered matters in at least one significant respect.                 We  now  have a  regime  that, aiming  to  provide equal            treatment, requires the sentencing  judge to make findings as                       ________            to relevant uncharged conduct and absent a departure requires                                                                 ________            the  judge to  sentence on  that basis  within a  very narrow            range.   See 18 U.S.C.    3553(b); U.S.S.G.     1B1.1, 1B1.2,                     ___            5C1.1(a).    Thus  a   finding  of  an  uncharged  crime   at            sentencing, and the compulsory fixing of the sentence on that            basis,  makes the  sentencing itself  now look  somewhat more            like a  conviction for that uncharged  crime--but without the            benefit of the criminal standard of proof beyond a reasonable            doubt or, for  that matter,  an indictment or  jury trial  on            that crime.                                          -8-                                         -8-                 Most courts have been  less, or not at all,  troubled by            use of the uncharged  conduct that has only a  limited effect            on the sentence  or is  qualitatively the same  crime as  the            offense of  conviction (such as other related  drug sales) or            both.  See, e.g., United States v. Wright, 873 F.2d 437, 441-                   ___  ____  _____________    ______            42 (1st Cir. 1989).  As the impact and qualitative difference            grow,  courts  become  more  concerned.    The  reference  in            McMillan,  477  U.S.  at  88,  to  the  risk  of  the  "tail"            ________            (sentencing) "wagging the dog" (the substantive  offense) has            often  been  taken to  suggest that  the Supreme  Court might            endorse some outer limit.2                 The  guidelines'  substantive  provisions were,  in  the            main, intended  to impose  sentencing results very  much like            those that prevailed in the  pre-guidelines era.  See Stephen                                                              ___            Breyer,  The  Federal  Sentencing  Guidelines   and  the  Key                     ____________________________________________________            Compromises Upon Which  They Rest,  17 Hofstra L.  Rev. 1,  8            _________________________________            (1988).  The pertinent change, as we  have noted, is that the            guidelines  are  compulsory.    But for  Lombard  the  latter            element has been largely  removed by our decision  in Lombard                                                                  _______            I,  which restored  to the  district court  its pre-guideline            _            discretion  to decide whether and  how far to  give weight to            the murders.                                            ____________________                 2The reference was in fact  directed to a problem rather            different than our  own, namely,  the alleged  danger that  a            state legislature  might "tailor[]" its substantive  crime to            shift  into   the  sentencing  phase  an   element  that  was            traditionally part of the crime.  Id.                                                ___                                         -9-                                         -9-                 True, the district court may (and here did) still choose            to  give  weight to  the  uncharged  offenses  in fixing  the            sentence  within  the  statutory  range  if  it  finds  by  a            preponderance of  evidence that  they occurred; but  this was            always  permitted  by  longstanding  practice   and  explicit            Supreme  Court authority.   Wisconsin  v. Mitchell,  508 U.S.                                        _________     ________            476,  485 (1993);  Williams v.  New York,  337 U.S.  241, 246                               ________     ________            (1949).   There is no  indication that the  Supreme Court has            altered its  position on this  issue.  If  anything, McMillan                                                                 ________            reinforced that  position in upholding  a mandatory  sentence            enhancement based on uncharged conduct.                  Some may think that even the status quo ante  is at odds                                              _______________            with due  process and that uncharged conduct  should never be            considered without criminal-trial safeguards.  But the choice            then  may be,  in substance,  between turning  the sentencing            into a  new criminal  trial or  ignoring provable facts  that            most people think relevant in deciding who  deserves more and            who  less punishment.   See Breyer, supra,  at 9-12.   If the                                    ___         _____            Constitution is now taken to forbid "real offense" sentencing            unless criminal-trial  procedures  are applied,  that  ruling            must come from a higher court.                   The  only  circuit court  squarely  to  impose a  higher            standard  of  proof  in  certain  sentencings  is  the  Third            Circuit.   There, in United States v. Kikumura, 918 F.2d 1084                                 _____________    ________            (3d Cir. 1990), the  court held that an upward  departure due                                                            _________                                         -10-                                         -10-            to uncharged conduct should be based  on clear and convincing            evidence where  the  finding had  an  extraordinary  impact--            there, "a twelve-fold, 330-month departure from the median of            an applicable sentencing range."   Id. at 1102.   This ruling                                               ___            was premised on a  reading of the guidelines informed  by due            process concerns  and has  been much discussed  but generally            not  followed.  See United  States v. Masters,  978 F.2d 281,                            ___ ______________    _______            286 (7th Cir. 1992).                 Lombard does  not urge this halfway house in the present            case.  In truth, most judges are unlikely to see a great gulf            between  a preponderance and "clear and convincing" evidence.            Based upon the sentencing  transcripts and the trial evidence            in this case, the  district court would probably find,  as to            Lombard, that  the latter standard had  been amply met.    By            contrast, the "beyond a  reasonable doubt" standard is widely            regarded  as making  a substantial  difference and,  for this            very reason, courts have been  very cautious in extending  it            to new realms.  Cf. Masters, 978 F.2d at 286-87.                            ___ _______                 In  all  events,  given  Supreme  Court  precedents,  we            conclude that the Constitution  does not require a heightened            proof standard in a case such as ours.  Policy is a different            matter:   on this score, one can argue about imposing greater            safeguards for sentencing decisions that severely  affect the            defendant.   But  if you  asked trial  judges, most  would be            likely  to say that what they mainly needed was more latitude                                         -11-                                         -11-            and fewer constraints.  Cf. Koon v. United States, 116 S. Ct.                                    ___ ____    _____________            2035,  2046-47 (1996); United States v. Rivera, 994 F.2d 942,                                   _____________    ______            951-52 (1st Cir. 1993).                                         III.                 Finally, we think it  essential to say a word  about the            matter  that troubled the court in Lombard I but that Lombard                                               _________            has chosen not  to stress,  at least in  his legal  argument:            the use of acquitted  conduct to enlarge his sentence.   This            certainly  accorded with  the guidelines.   In  their present            form they  draw no distinction between  relevant conduct that            is  uncharged and relevant conduct of which the defendant has            actually been  acquitted.   Absent a  departure, all  must be            given the  weight assigned  by  the guidelines.   U.S.S.G.               1B1.3; United States v.  Mocciola, 891 F.2d 13, 16  (1st Cir.                   _____________     ________            1989).  The question is why.                 The explanation for including acquitted conduct  has the            usual charm of lawyer's logic.   It is said that there  is no            technical inconsistency between a prior acquittal and the use            of the very same  acquitted conduct at sentencing  to enlarge            the  sentence,  because  the   jury  merely  found  that  the            defendant  had not  been proved  guilty "beyond  a reasonable            doubt";  the  sentencing  judge,  by  contrast,  finds  by  a            preponderance of the evidence  that the acquitted conduct did            occur.  See, e.g., United States v. Isom, 886 F.2d 736, 738 &                    ___  ____  _____________    ____            n.3 (4th Cir. 1989).                                         -12-                                         -12-                 This syllogism has been expressly adopted by the Supreme            Court  in another context, Dowling v. United States, 493 U.S.                                       _______    _____________            342,  349 (1990),  and  is regularly  followed  by the  lower            courts, including  ours, in  sentencing and elsewhere.   See,                                                                     ___            e.g., Rossetti v.  Curran, 80  F.3d 1, 5-6  (1st Cir.  1996).            ____  ________     ______            Presumably, it is because  of these precedents, emphasized in            Lombard  I, that Lombard has  not challenged the syllogism or            __________            stressed  the fact that the uncharged conduct in this case is            also acquitted conduct.   As a matter of constitutional  law,            the syllogism is "rational"  enough (as well as  binding upon            us).                  Yet,  many   judges  think   that  the  guidelines   are            manifestly unwise, as  a matter of  policy, in requiring  the            use of acquitted conduct  in calculating the guideline range.            See  United  States v.  Lanoue, 71  F.3d  966, 984  (1st Cir.            ___  ______________     ______            1995).   A lawyer can  explain the distinction logically but,            as a matter of public  perception and acceptance, the  result            can often invite disrespect for the sentencing process.  This            threat is aggravated insofar as the guidelines compel--rather            than merely permit--the practice.                 Certainly  situations exist  where the  sentencing court            might persuasively explain the use of acquitted conduct.  For            example, a  defendant might be acquitted  because of reliable            evidence suppressed  by a Fourth  Amendment exclusionary rule            or the  defendant might later  be shown  to be guilty  by co-                                         -13-                                         -13-            conspirator  testimony  not  available  at the  time  of  the            earlier  trial.    But   the  present  regime  commands  that            acquitted conduct  be taken into account  and severely limits            the  court's ability  to disregard  it.   That a  practice is            constitutional does not make it wise.                 Affirmed.                  _________                                         -14-                                         -14-
