United States v. Douglas Alan Barton

R. GUY COLE, JR.,

concurring.

I agree with the majority’s conclusions on each of the three issues before this court: Retroactive application of Booker does not violate the defendant’s due process rights, the sentencing enhancement applied by the district court was supported by a preponderance of evidence, and the defendant’s sentence was reasonable. I write to add an alternative analysis on the first of these issues.

The majority finds no due process concerns of an ex post facto variety in part because Booker provides no guarantee that the Guideline range calculated by a sentencing court will have a critical effect on a defendant’s sentence, given that the court is free to impose a sentence outside of the range. As I understand the defendant’s argument, however, a due process concern exists precisely because there is no longer a guarantee that he will receive a sentence within the appropriate Guideline range.

Nevertheless, I agree that the law provided the defendant sufficiently fair warning to satisfy the Due Process Clause as interpreted by the Supreme Court in Rogers v. Tennessee, 532 U.S. 451 , 121 S.Ct. 1693 , 149 L.Ed.2d 697 (2001). Like the majority, I prefer to rest this conclusion on more than the mere fact that the defendant had fair warning of the statutory maximum for his crime. At the time the defendant committed the conduct in question, he had notice not only of the elements of the crime, and of the seriousness with which the crime was viewed as reflected by the statutory maximum, but also of the factors that would aggravate or mitigate the severity of the offense. The district court sentenced the defendant under the same Guidelines that were in effect before Booker and weighed the same factors. The defendant was therefore on notice not only that the law attached consequences to bank robbery, but also that the law attached additional consequences to, in this case, making a threat of death while performing that bank robbery, or committing that bank robbery after having committed other offenses. In my mind, the fact that the defendant had notice of these factors is more compelling than the fact that he had notice of the statutory maximum for his offense, since Rogers instructs us that one of our primary concerns should be with “attaching criminal penalties to what previously had been innocent conduct.” See Rogers, 532 U.S. at 459 , 121 S.Ct. 1693 . I see no explicit conflict, however, between our Ex Post Facto Clause precedent such as United States v. Kussmaul, 987 F.2d 345, 351-52 (6th Cir.1993), and our sister circuits’ resolution of the Booker retroac-tivity issue under the Due Process Clause, since, as the majority points out, the Supreme Court has set forth different analy-ses for these two spheres of jurisprudence.

Finally, despite the Supreme Court’s instruction to analyze judicial decision-making under the Due Process Clause differently from legislation under the Ex Post Facto Clause, I am not fully convinced that the concerns about “arbitrary and potentially vindictive legislation,” see Weaver v. Graham, 450 U.S. 24, 29 , 101 S.Ct. 960 , 67 L.Ed.2d 17 (1981), that in *661 form Ex Post Facto Clause jurisprudence are completely absent in this unique context, where a court sentencing a defendant after Booker has the opportunity to affect directly and concretely the punishment that will attach to the defendant’s conduct. I believe these concerns are answered, however, by the important role of this court’s reasonableness review, which ensures that a sentencing court will not exercise its new discretion in an arbitrary or vindictive manner.

With these qualifications, I concur in the majority opinion.