United States v. Lombard, Jr.

Opinion

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,


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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.



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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


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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


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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


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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


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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. 


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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.  
                                              ___



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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
                                                            _________


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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


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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).


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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-


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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. 
                 _________


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