United States v. Hughes

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 4, 2004
• Docket: 02-2026
• Status: Published

Opinion

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.

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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.