Petition for Writ of Certiorari — Masters v. United States

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Bupreme Court, U.S,

FILED

92-1341 | FEB 5 1993

OFFICE OF THE CLERK

eel

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1992

ALAN MASTERS,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

PATRICK A. TUITE*

BRENT D. STRATTON

Tuite, Stratton & Menaker

105 West Adams Street

31st Floor

Chicago, IL 60603

312/ 641-1022

*Counsel of Record

QUESTIONS PRESENTED FOR REVIEW

1. Do consecutive maximum twenty year

sentences for racketeering and

racketeering conspiracy convictions that

involve identical conduct violate the

Fifth Amendment prohibition against

double punishment for the same offense?

2. Do consecutive maximum twenty year

sentences for a pre-Guidelines

racketeering conviction and a Guidelines

racketeering conspiracy conviction

violate the Sentencing Guidelines where:

(a) the Guidelines prohibit

consecutive sentences for conspiracy and

the object of the conspiracy; and

(6b) the Guidelines' goal of

punishing post-November 1, 1987 conduct

is not served because no conduct occurred

after the Guidelines' effective date

except for the continued concealment of

the conspiracy?

3. Is the Due Process Clause of the

Constitution violated by a sentencing

judge's finding that the Sentencing

Guidelines mandate a consecutive maximum

twenty year sentence instead of a

concurrent five year sentence where:

(a) the judge's decision is based

on a factual finding by only a

preponderance of evidence; and

(b) the finding is based on

conduct that the jury found the defendant

did not commit?

PARTIES TO THE PROCEEDINGS

Petitioner Alan Masters was defendant-

appellant before the United States Court

of Appeals for the Seventh Circuit.

Respondent before this Court, the United

States of America, was plaintiff-appellee

below and commenced the prosecution

against Petitioner.

TABLE OF CONTENTS

Page

Questions Presented for Review... i-ii

Parties to the Proceedings....... iii

TOOLS GCE COMNTOMNTH. occcvcccscveseers iv-v

TAaSlS CF AUTNOTITLIOB.. wc cccvcvccces vi-viii

OBEREGM BOLO. cc cscs ccctecessecer 2

SUPLOGLOCAOMs cc ccessecsesvzessccss 2

Constitutional Provisions and

Statutes Involved.............2.. 3

Statement of the Case............

I. Proceedings before Remand for

ROSSONTONGANG . se cccscccececvzes 4-10

II. Resentencing Hearing......... 10-12

III. Court of Appeals Decision

Following Resentencing...... 12-15

Reasons for Granting the Petition

I. This Court Should Resolve the

Uncertainty as to Whether the

Double Jeopardy Clause Permits

Consecutive Sentences for

Multiple Convictions Based on

TGONTAICAL COMBNGE. ccccccncecs 16-36

Il.

Ill.

This Court Should Grant

Petitioner's Writ to Resolve

the Conflicts Within the

Sentencing Guidelines with Respect

to the Propriety of Consecutive

Sentences for Guidelines and

Ppre-Guidelines CountS...-+++s-. 36-43

This Court Should Resolve the

Split in the Circuits as to

Whether a Sentencing Judge Must

Consider Conduct of Which the

Defendant Was Acquitted But Which

the Judge Finds to Have Occurred

By Only 4 Preponderance of

Evidence...-ceeresseereeee*® 44-45

A. Reliance on Acquitted

Conduct..--+e2eerseee%? 45-49

B. Use of a Preponderance

Standard of Proof...---- 50-65

ConcluSion...ccccorssoserrrrrree® 65

Appendix...--+sssrsserrrrre® A-1 - A-38

TABLE OF AUTHORITIES

Cases Page

Albernaz v. United States,

Sou UB. Bae CAPER) o ccc 14,17,29,31

Blockburger v. United States,

284 U.S. 299 (1932)........ 17,19,20

Garrett v. United States,

471 U.S. 773 (1985S). ccc cccees 29,30

Heflin v. United States,

moe U.B« GAS LADOR Decsscces 17,22,29

Jeffers v. United States,

432 U.S. 137 (1977).......4-- passim

McMillan v. Pennsylvania,

Pe Gas FE CEP e sak ceoenseess passim

Miller v. Florida,

mes Sola Se CADET va ccacceses passim

Missouri v. Hunter,

459 U.S. 359 (1983)..... 14,17,28,31

Mullaney v. Wilbur,

421 U.S. 684 (1975)..... 93,54,56,62

North Carolina v. Pearce,

££ A ib) Be ly eee ee 19

Prince v. United States,

352 U.S. 322 (1957)........... 17,29

United States v. Brady,

928 F.2d 844

(Oth Cir. 1991)..--eeeeeeeeces 48,49

United States v. Felix,

_Jiz s.ct. 1377,

118 L.Ed.2d 25 (1992)..--++-- passim

United States v. Kikumura,

918 F.2d 1084

(3d Cir. 1990)... --eeeeeeeeees 15,62

United States v. Masters,

924 F.2d 1362

(7th Cir.)

cert. denied,

U.S.

eee

TTT 8.64. 2010 (1991). .00- 0000 9,42

United States v. Masters,

978 F.2d 281

(7th Cir. 1992)..---eeeseereeees 16

United States v. Niven,

952 F.2d 289

(Oth Cir. 1991)..----eeeeeeees 17,34

United States v. Scarano,

975 F.2d 580

(9th Cir. 1992)..---+-eeee> 17, 33,38

United States v. Sutton,

642 F.2d 1001

(6th Cir. 1980),

cert. denied,

453 U.S. 912 (1981)..---++eeee- 18,26

United States v. Townley,

929 F.2d 365

(8th Cir. 1991)... cc eee cree e veces 63

United States v. Turkette,

452 U.S. 576 (1981)... eee eeees 21

Whalen v. United States,

455 U.S. 684 (1980)...... “se cccces 19

In Re Winship,

397 U.S. 358 (1970)........2.4.. 54,55

viii

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1992

ALAN MASTERS,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

The Petitioner, Alan Masters, petitions for

a writ of certiorari to review the judgment of

the United States Court of Appeals for the

Seventh Circuit entered in this case.

OPINION BELOW

The opinion of the Court of Appeals is

reported at 978 F.2d 281, and is

reproduced in the Appendix to this

Petition at pages A-1 - A-32.

JURISDICTIONAL STATEMEN%

On October 14, 1992, the United States

Court of Appeals for the Seventh Circuit

affirmed Petitioner's sentence. On

November 9, 1992, the Court of Appeals

denied rehearing and rehearing en banc.

This Court's jurisdiction is invoked

under 28 U.S.C. Section 1254.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

Amendment V to the Constitution of the

United States:

...nor shall any person be subject for

the same offence to be twice put in

jeopardy of life or limb...nor be

deprived of life, liberty, or property,

without due process of law....

U.S.C. Section 994(1)(2):

The Commission shall insure that the

guidelines promulgated pursuant to

subsection (a)(1) reflect...the

general inappropriateness of posing

consecutive terms of imprisonment for

an offense of conspiring to commit an

offense or soliciting commission of an

offense and for an offense that was

the sole object of the conspiracy or

solicitation.

Sentencing Guidelines Sections 2A2.1

(1988 version), 3D1.2, 5Gl.1, and 5G1.2

are set out in the Appendix at A-34 - A-

38.

rs |

STATEMENT OF THE CASE

I. Proceedings before Remand for

Resentencing

Petitioner was charged in June 1988 in

a four-count indictment that alleged

violations of 18 U.S.C. Section 1962(c),

1962(d), and 1341. (R. 1). The district

court had jurisdiction over Petitioner's

case under 18 U.S.C. Section 3231.

Count One charged Petitioner and two

others with racketeering, i.e. being a

member of an association-in-fact

enterprise which committed certain

racketeering acts. Racketeering Act

Number Five of Count One charged that

Petitioner (a) planned and solicited the

murder of his wife, Dianne Masters; (b)

conspired with others to murder, and

procured and aided and abetted the

murder; and (c) participated in

concealing the murder. (R. 1).

Racketeering Acts One through Four

alleged bribery violations, and Number

Six alleged mail fraud stemming from

Petitioner's obtaining proceeds from his

wife's life insurance policy. (R. 1).

Count Two charged Petitioner and the

same two others with racketeering

conspiracy, and incorporated the same

enterprise and the same pattern of

racketeering acts set out in Count One,

including the homicide of the

Petitioner's wife. (R. 1)

Counts Three and Four charged

Petitioner with mail fraud in that he

made false statements on a claim for

proceeds from the insurance policy in his

wife's name. (R. 1) The government

alleged that Petitioner's statement on

the claim that the cause of his wife's

death was under investigation was false

because Masters had himself killed his

wife.

The indictment described the alleged

racketeering enterprise which was charged

identically in Counts One and Two, as

follows: "Defendants ALAN MASTERS,

MICHAEL J. CORBITT and JAMES D. KEATING,

and the Law Offices of ALAN MASTERS,

P.C., the Willow Springs Police

Department [Corbitt's employer], and the

Cook County Sheriff's Police Department

[Keating's employer] formed and were an

association-in-fact and constituted an

enterprise as that term is defined in

Title 18 United States Code, Section

1961(4)...."

The jury found Petitioner guilty of

Counts One and Two and not guilty of

Counts Three and Four. (R. 165, 166)

The jury returned a special verdict on

Counts One and Two. (R. 165) The special

verdict on Count One listed all six

Racketeering Acts and subdivided

Number Five into (a), (b), and (c).

Number Six was subdivided into six parts,

corresponding to the six mailings that

were in furtherance of the alleged mail

fraud conduct (charged in Counts Three

and Four)(R. 165).

In pertinent part the special verdict

stated: "In finding defendant Alan

Masters GUILTY of Count One of the

Indictment, we find beyond a reasonable

doubt that he committed the following

~~ sedl

checked Racketeering Activities of the

charged enterprise...." (R. 165) The

jury checked Numbers One through Four and

part (a) of Number Five (charging the

solicitation to murder Dianne Masters).

(R. 165) The jury did not check parts

(b) and (c) of Number Five (charging

the murder of Dianne Masters and

concealment of her death) or any of the

six parts of Number Six (the mailings

regarding insurance). (R. 165) The

special verdict for Count Two (RICO

conspiracy) did not subdivide Numbers

Five and Six; consistent with its verdict

on Count One, the jury checked Numbers

One through Five and did not check Number

Six. (R. 165)

In a forfeiture hearing held after the

return of the jury verdicts, the jury was

asked to find but did not find against

Masters on the special forfeiture verdict

regarding property of Dianne Masters that

Petitioner gained upon her death and

which the government contended he should

forfeit because he procured her murder.

(R. 165).

On appeal, the Court of Appeals

affirmed Petitioner's convictions on

Counts One and Two. See United States v.

Masters, 924 F.2d 1362 (7th Cir.), cert.

denied, 111 S.Ct. 2019 (1991). In

rejecting one of Petitioner's challenges

to an evidentiary ruling by the district

court, recognizing the jury's decision,

the court stated: "And if there was

error here, it was harmless, since it

went to a charge -- conspiracy to murder,

as distinct from conspiracy to solicit

and conceal -~- on which the defendants

were acquitted." Id. at 1368. The court

also vacated Petitioner's sentence on

Count Two (the racketeering conspiracy

count) and remanded the case to the

Gistrict court to make a finding as to

whether the conspiracy extended past

November 1, 1987, thus requiring that the

conspiracy count be sentenced under the

Sentencing Guidelines. Id. at 1369.

II. Resentencing Hearing

The parties did not dispute that the

government had alleged a conspiracy that

extended past November 1, 1987. (R. 279)

The district court found that an offense

level of 43 (life imprisonment) would

apply to resentencing Petitioner on Count

ceeded

Two. (R. 289) The district court

explained that Level 43 was the

applicable offense level because, despite

the jury's verdict, he found by a

preponderance of the evidence that

Petitioner was liable for the murder of

his wife. (R. 302 at 9) Thus, the court

ruled that Section 2Al1.1 of the

Sentencing Guidelines, which governs

first degree murder, applied to

Petitioner's case. (R. 302 at 9-10).*

Finally, the district court ruled

that, to vindicate the Guidelines, the

sentence on Count Two, based on the

statutory maximum of a life sentence on

an offense level of 43, must be a twenty-

*The district court said that he would

reach Level 43 by two alternate routes,

which are explained in the appellate

court's opinion, that are not pertinent

to this writ.

year sentence to run consecutively to the

previously imposed 20 year maximum

sentence on the pre-Guidelines

racketeering conviction. (R. 302 at 71).

III. Court of Appeals Decision

Following Resentencing

On October 14, 1992, the United States

Court of Appeals for the Seventh Circuit

affirmed the Guidelines sentence imposed

on Count Two. See 978 F.2d 281 (opinion

reproduced in Appendix at A-1l - A-32). On

November 9, 1992, the Court of Appeals

Genied rehearing and rehearing in banc.

In its opinion, the Court of Appeals

held that the district court properly

found that Section 2Al.1, which applies

to murder and carries a base offense

level of 43, was the appropriate

guideline section for Count Two. See 978

biieeieneeeeeereenceeeeeeel

F.2d at 284. (A-10 - A-13). The Court

also upheld the district court's decision

to run the Guidelines sentence

consecutive to the pre-Guidelines

sentence, citing Section 5G1.2(d), which

governs sentencing on multiple counts of

conviction under the Guidelines. See id.

(A-11).

The Court of Appeals next rejected

Petitioner's argument that consecutive

maximum sentences for racketeering and

racketeering conspiracy violate the

Double Jeopardy Clause. Id. at 285. (A-

15 - A-18). Citing United States v.

Felix, U.S. , 232 $.Ct. 1377, 116

L.Ed.2da 25 (1992), the court Claimed that

separate punishment for choate and

inchoate crimes always is permissible.

Id. (A-15 - A-16) Citing Missouri v.

Hunter, 459 U.S. 359 (1983) and Albernaz

v. United States, 450 U.S. 333 (1981),

the court also contended that cumulative

punishment at a single trial never

violates the Double Jeopardy Clause. Id.

(A-16)

The Court of Appeals next ruled that

the jury's finding that Petitioner did

not conspire to murder and conceal the

murder of his wife did not bar the

district judge from finding that

Petitioner was responsible for the murder

and basing Petitioner's sentence on that

finding. 978 F.2d at 285. (A-19 - A-22).

Finally, the court rejected

Petitioner's call for a standard of proof

greater than a preponderance of evidence

when the factua) findings at sentencing

result in dramatic increases in the

length of sentence. The

court recognized that its holding

conflicted with United States v.

Kikumura, 918 F.2d 1084 (3d Cir. 1990),

but opined that Kikumura is inconsistent

with McMillan v. Pennsylvania, 479 U.S.

79 (1986). See id. (A-22 - A-25).

REASONS FOR GRANTING THE PETITION

I. This Court Should Resolve the

Uncertainty as to Whether the

Double Jeopardy Clause Permits

Consecutive Sentences for

Multiple Convictions Based on

Identical Conduct.

Petitioner was sentenced to two

consecutive twenty-year maximum sentences

for racketeering and racketeering

conspiracy. The conduct that violated

the racketeering statute (18 U.S.C.

Section 1962)(c)) was the identical conduct

that violated the racketeering conspiracy

statute (18 U.S.C. Section 1962(d)). The

Court of Appeals claimed that decisions

cf this Court foreclose Petitioner's

argument that consecutive sentences

violated the Double Jeopardy Clause. See

United States v. Masters, 978 F.2d 281,

285 (7th Cir. 1992)(citing United States

v. Felix, U.S. , 112 S.Ct. 1377, 118

L.Ed.2d 25 (1992); Missouri v. Hunter,

459 U.S. 359 (1983); Albernaz v. United

States, 450 U.S. 333 (1981); Blockburger

vy. United States, 284 U.S. 299 (1932) )(A-

-15 - A-17). Petitioner asserts that if these

decisions are to be interpreted as

permitting consecutive sentences for

identical conduct charged under multiple

statutes, then those decisions of this

Court are in conflict with Jeffers v.-

United States, 432 U.S. 137 (1977),

Heflin v. United States, 358 U.S. 415

(1959), and Prince v. United States, 312

U.S. 322 (1957). In addition,

the lower court's decision is in conflict

with United States v.- Scarano, 975 F.2d

580 (9th Cir. 1992), United States v.

Niven, 952 F.2d 289 (9th Cir. 1991) and

Aries

United States v. Sutton, 642 F.2d 1001

(6th Cir. 1980), cert. denied, 453 U.S.

912 (1981) in assessing the double jeopardy

ramifications of consecutive sentences

for identical conduct. This Court should

grant certiorari in Petitioner's case to

resolve these conflicts and the

uncertainty as to when consecutive

sentences are permitted.

Although the Court of Appeals asserts

that the decisions of this Court

unquestionably reject a double jeopardy

challenge to consecutive sentences for

racketeering and racketeering conspiracy,

several decisions of this Court in fact

support Petitioner's position. As a

starting point, the Double Jeopardy

Clause of the Fifth Amendment "protects

against multiple punishments for the same

offense." North Carolina v. Pearce, 395

U.S. 711, 717 (1969). The test for

determining whether conduct can be

punished twice was stated in Blockburger

vy. United States, 284 U.S. 299, 304

(1932): "The applicable rule is that,

where the same act or transaction

constitutes a violation of two distinct

statutory provisions, the test to be

applied to determine whether there

are two offenses or only one is whether

each provision requires proof of an

additional fact which the other does

not." This Court more recently has

explained that the assumption "underlying

the rule is that Congress ordinarily does

not intend to punish the same offense

under two different statutes." Whalen v.

United States, 455 U.S. 684, 692 (1980).

"Accordingly, where two statutory

provisions proscribe ‘the same offense, '

they are construed not to authorize

cumulative punishment in the absence of a

Clear indication of contrary legislative

intent." Id.

Although the Blockburger analysis

examines the statutory elements of two

offenses, this Court often has looked to

the actual offenses charged and to the

government's evidence in determining the

propriety of cumulative punishment. In

Jeffers v. United States, 432 U.S. 137

(1977), this Court barred consecutive

sentences for violations of Sections 846

(conspiracy) and 848 (continuing criminal

enterprise) of Title 21 of United States

Code. This Court looked beyond the

statutory elements to the common law

meanings of "conspiracy" and "concerted

action" and to the government's actual

evidence. See 432 U.S. at 147-57 & n.16.

This Court held that the requirement of

"concerted action" necessarily requires

"proof of an agreement among the persons

involved in the continuing criminal

enterprise." 432 U.S. at 150. Even

though Section 848 does not on its face

require a conspiracy or an agreement,

this Court held that the common meaning

of the phrase “in concert" is agreement

or cooperative action. See id. at 148-49

& n.14; see also United States v.

Turkette, 452 U.S. 576

(1981)(association-in-fact racketeering

enterprise is a “group of persons

Saitama

associated together, for a common purpose

of engaging in a course of conduct"). In

the instant case Petitioner was charged

with being a member of an association-in-

fact racketeering enterprise.

This Court had earlier applied the

same double jeopardy analysis in

invalidating consecutive sentences under

the federal bank robbery statutes. In

Heflin v. United States, 358 U.S. 415,

419-20 (1959), this Court held that

double jeopardy is violated by the

imposition of consecutive sentences for

the use of a dangerous weapon while

robbing a bank under 18 U.S.C. Section

2313(d) and receipt of money taken from a

bank under 18 U.S.C. Section 2113(c).

This Court so held despite the presence

—

of different elements in the two sections

of the statute. See id.; see also Prince

v. United States, 352 U.S. 322, 327-29

(1957)(under 18 U.S.C. Section 2113,

offense of entering a bank with felonious

intent merges with offense of bank

robbery if bank robbery is consummated,

thus prohibiting consecutive sentences,

despite different elements).

The analytical similarity between

racketeering and racketeering conspiracy

is comparable to the similarity between

conspiracy in continuing criminal

enterprise in the Jeffers case. AS

charged in Petitioner's case, the

racketeering count required the same

element of agreement that is an element

of racketeering conspiracy. The

indictment against Petitioner alleged an

association-in-fact enterprise that

consisted of Petitioner, Michael Corbitt,

James Keating and the three legal

entities with which those individuals

were associated. The racketeering

conspiracy count charged that Petitioner,

Corbitt and Keating agreed to conduct the

affairs of that association-in-fact

enterprise through a pattern of

racketeering activity. The agreement

needed to form the conspiracy also was

necessary to the formation and continued

existence of the association-in-fact.

The only way the government could prove

the existence of the association-in-fact

was to prove that Petitioner, Corbitt and

Keating agreed, either explicitly or

implicitly, to form the enterprise which

‘iaiieaieieiiumaaiaai

the government charged was formed to

commit the criminal acts alleged. Just

as the defendants in Jeffers could not

act in concert with one another without

agreeing to do so, see 432 U.S. at 149-

50, Petitioner, Corbitt and Keating could

not associate with one another without

agreeing to do so.

The Court of Appeals erroneously

construes Petitioner's double jeopardy

argument as relying solely on "an

identity of evidence." See 978 F.2d at

285 (A-17). To the contrary, Petitioner

consistently has argued that the elements

of the racketeering and racketeering

conspiracy counts were essentially the

same, particularly given the analytical

similarity between 4 conspiracy and an

agreement to form an association-in-fact

enterprise.

However, despite the focus on the

elements of two offenses, the courts

frequently look to the charges and proof

presented at trial in determining whether

two offenses are distinct. Indeed, this

Court noted in Jeffers: “The two

indictments in this case are remarkably

similar in detail. It is clear that the

identical agreement and transactions over

the identical time period were involved

in the two cases." 432 U.S. at 150

n.16.

Similarly, in United States v. Sutton,

642 F.2d 1001, 1040 (6th Cir. 1980),

cert. denied, 453 U.S. 912 (1981), the

Court specifically held that "the proofs

in this record showing these defendants

violated Section 1962(c) and 1962(d)

[racketeering and racketeering

conspiracy] were identical. Under these

circumstances, We believe that the

conspiracy convictions under Section

1962(d) merge with the Section 1962(c)

convictions for the purposes of

sentence." And, in United States v-

Felix, __U.S.-__es 112 $.Ct. 1377, 118

L.Ed.2d 25 (1992), in which this Court

rejected a double jeopardy challenge to 4

subsequent prosecution, this Court noted

the many differences between the conduct

charged in the two indictments: "The

actual crimes charged in each case were

different in both time and place; there

was absolutely no common conduct linking

the alleged offenses." See u.S. at

112 $.Cct. at , 118 L.Ed.2d at 33.

——— —_———-

———=——

In Petitioner's case, the conduct

charged in the two counts and the

evidence presented in support of those

charges could not be more identical. Not

one allegation contained in the

racketeering count was not also contained

in the conspiracy count, and vice versa.

Although the Court of Appeals is correct

in saying that an identity of evidence

alone will not support a double jeopardy

Claim, here the identity of evidence,

combined with the identity of

allegations, combined with the virtual

identity of elements does support

Petitioner's double jeopardy argument.

The Court of Appeals for the Seventh

Circuit claims that this Court's

decisions in Felix, Missouri v. Hunter,

iii ci aia

459 U.S. 359 (1983), and Albernaz v.

United States, 450 U.S. 333 (1981)

preclude Petitioner's double jeopardy

challenge to the consecutive sentences.

If the Court of Appeals is correct, then

these decisions are in conflict with

Jeffers, Heflin and Prince. However,

Petitioner does not believe that Felix,

Hunter and Albernaz preclude his claim.

Although this Court stated in Felix that

a substantive offense in a conspiracy to

commit that offense are not the same for

double jeopardy purposes, see 118 L.Ed.2d

at 36, that statement was in the context

of a subsequent prosecution case. The

issue of consecutive sentences for choate

and inchoate offenses was not raised in

Felix. Even Garrett v. United States,

471 U.S. 773 (1985), which this Court

cited in Felix, does not preclude

Petitioner's claim. Garrett involved

cumulative punishment for a continuing

criminal enterprise conviction and a

separate conviction for an offense that

was a predicate of the CCE count.*

Garrett would control if Petitioner had

been given consecutive sentences for

racketeering and for 4 separate

conviction for one of the predicate

*There is even a question as to whether

consecutive sentences of this nature were

involved in Garrett. As Justice Stevens

noted in his dissenting opinion, Garrett

received a five year sentence for a

predicate conviction in Washington, a

consecutive fourteen year sentence for

predicate convictions in Florida, and a

forty-year concurrent sentence on the CCE

count. See 471 U.S. 773 at 807 n.27.

The majority opinion suggests that the

forty-year sentence was concurrent with

the fourteen-year term but consecutive to

the five-year term. See id. at 775, 777.

racketeering activities, e.g., bribery or

conspiracy to murder. However, what

raises the double jeopardy concern in

Petitioner's case is that he received

consecutive maximum sentences for

racketeering and racketeering conspiracy

convictions that involved identical

conduct.

Missouri v. Hunter also does not

control here. Although Hunter involved a

single prosecution, the defendant

received concurrent sentences for the two

offenses that he claimed violated the

Double Jeopardy Clause. See 459 U.S. at

361-62. Finally, Albernaz involved

consecutive sentences, but they were

imposed on two separate conspiracy counts

charged under two separate conspiracy

statutes. See 450 U.S. at 334. One

statute prohibited the importation of

marijuana into the United States and the

other statute prohibited distribution of

marijuana within the United States. See

id. In contrast, the indictment in

Petitioner's case involved but one course

of conduct that was charged in two

separate counts. The essence of Count

One was that Petitioner agreed to

associate in fact with his co-defendants

for the purpose of engaging in

racketeering activity. The essence of

Count Two was that Petitioner agreed to

agree to associate in fact with the co-

Gefendants for the same purpose. The two

counts could not be more the same.

Petitioner's case also presents a

variation on the double jeopardy issue

because the racketeering count was pre-

Guidelines and the racketeering

conspiracy count was sentenced under the

Guidelines. The decision of the Court of

Appeals stands in conflict with decisions

of other circuits that have held that the

Double Jeopardy Clause does not permit a

court to impose a consecutive Guidelines

sentence based on conduct that was

already was considered in a pre-Guidelines

sentence. In United States v. Scarano,

975 F.2a 580 (9th Cir. 1992), the Court

vacated the defendant's sentences for

social security fraud and mail fraud

because the "district court both

incorporated the losses from count two

[pre-Guidelines] into its calculation of

total losses for its Guidelines sentence

on count one, and imposed consecutive

sentences." Id. at 586; see also United

States v. Niven, 952 F.2d 289, 293 (9th

Cir. 1991)("inclusion of the pre-

Guidelines portion of the total loss when

determining both the pre-Guidelines and

Guidelines sentences potentially violates

the Double Jeopardy Clause," where the

sentences run consecutive).

In Petitioner's case, the conduct that

was used to determine that he receive a

consecutive maximum Guidelines sentence

also was used to determine that

Petitioner receive the statutory maximum

on the pre-Guidelines count. As noted

repeatedly, the conduct alleged in the

two counts was identical, and the

government neither charged nor proved any

conduct of the Petitioner occurring after

the effective date of the Guidelines

(November 1, 1987). The racketeering

conspiracy count extended past that date

only based on the government's allegation

that the conspirators agreed to conceal

their actions up to the date of the

indictment in 1988 (and indefinitely).

Therefore, this Court should grant

Petitioner's writ to resolve the split in

the circuits as to whether consecutive

sentences for identical conduct contained

in pre-Guidelines and Guidelines counts

violates the Double Jeopardy Clause.

This Court also should grant Petitioner's

writ to resolve the uncertainty as to

whether consecutive sentences are

permitted for racketeering and

racketeering conspiracy, particularly

where the racketeering count is

predicated on an association-in-fact

enterprise.

II. This Court Should Grant Petitioner's

Writ to Resolve the Conflicts Within

the Sentencing Guidelines With Respect

to the Propriety of Consecutive

Sentences for Guidelines and Pre-

Guidelines Counts.

Even if the consecutive sentences

imposed in this case did not violate the

Double Jeopardy Clause of the

Constitution, Petitioner contends that

the Sentencing Guidelines do not permit

the consecutive sentences imposed here.

The Court of Appeals held, without

Giscussion, that Section 5G1.2(d)

requires that Petitioner's sentences run

consecutive because the statutory

maximums of twenty years on each count

are less than the prescribed sentence of

life imprisonment for level 43, which the

district court determined applicable to

Petitioner's Count Two conviction under

the Guidelines. See 978 F.2d at 284 (A-

11). Because the court's intepretations

carry broad ramifications for the

imposition of consecutive sentences under

the Guidelines, this Court should grant

Petitioner's writ to correct the lower

court's erroneous reading of the

Guidelines.

The lower court's interpretation and

application of the Guidelines is

erroneous in three ways. The court's

first error is in assuming that Section

5G1.2(d) automatically applies where one

count is under the Guidelines and the

other is pre-Guidelines. By their very

nature, the Guidelines apply only to

offenses occurring after November l,

1987. Thus, Section 5G1.2 applies only

to sentencing on multiple counts of

conviction, where all counts are under

the Guidelines. The Court of Appeals

erroneously assumed that Section 5G1.2

must apply where one count is pre-

Guidelines. Nothing in the Guidelines

supports that conclusion by the Court of

Appeals. In fact, decisions from other

courts have made clear that the decision

to run a Guidelines count consecutive to

a pre-Guidelines count is a discretionary

one for the sentencing judge. See, e.g.,

United States v. Scarano, 975 F.2d 580,

586 (9th Cir. 1992).

Second, the Court of Appeals

erroneously assumed that, if Section

5G1.2 can apply to combinations of

Guidelines and pre-Guidelines counts,

no other sections of the Guidelines

also apply t > such combinations. If

Section 5G1.2 applies even to pre-

Guidelines counts, then other sections,

such as those governing the grouping of

counts, also must apply.

Third, the Court also erroneously

concludes, albeit implicitly, that the

dictates of Section 5G1.2 necessarily

override the application of all other

sections of the Guidelines. With respect

to other Guidelines sections that apply

to Petitioner's case (despite the

inclusion of a pre-Guidelines count), the

starting point is 28 U.S.C. Section

994(1)(2), which states in pertinent

part: "The Commission shall insure that

the guidelines promulgated pursuant to

subsection (a)(1) reflect...the general

inappropriateness of imposing consecutive

terms of imprisonment for an offense of

conspiring to commit an offense or

soliciting commission of an offense and

for an offense that was the sole object

of the conspiracy or solicitation."

The Sentencing Commission's directive

is implemented in Section 3D1.2, which

governs the grouping of closely-related

counts. Application Note 4 to Section

3D1.2 states in part: "When one count

charges a conspiracy or solicitation and

the other charges a substantive offense

that was the sole object of the

conspiracy or solicitation, the counts

will be grouped together."

If Section 3D1.2 is applied to

Petitioner's case, the two counts for

which he was sentenced clearly would be

grouped together. After applying the

balance of Section 3D, Section 3D1.5

dictates that a sentencing judge use the

combined offense level, after grouping,

to determine the sentence in accordance

with the provisions of Chapter 5.

Because grouping the two counts would

result in a single count of conviction,

Section 5Gl.1{a) would apply, resulting

in the statutorily authorized maximum

sentence of 20 years as the Guidelines

sentence. And, applying the previously

described restrictions on consecutive

sentences for conspiracy and substantive

offenses, the Guidelines sentence would

run concurrently to the pre-Guidelines

sentence.

This approach is particularly

appropriate in Petitioner's case because

a consecutive Guidelines sentence was not

necessary to punish conduct that occurred

after the effective date of the

Guidelines and thus could not be punished

within the scope of the pre-Guidelines

count. As noted earlier, the indictment

in this case alleged no conduct after

November 1, 1987, except a continuing

conspiracy of silence. In fact, as the

Court of Appeals noted in Petitioner's

first appeal to the Seventh Circuit, the

application of Section 5G1.2 is designed

to give "maximum effect to the Guidelines

within their intended domain, i.e.,

crimes committed after November 1, 1987."

See United States v. Masters, 924 F.2d

1362, 1369 (7th Cir.), cert. denied,

__U.S.___, 111 S.Ct. 2019 (1991).

Petitioner engaged in no conduct after

November 1, 1987, although the conspiracy

continued as one of concealment after

that date. Thus, a consecutive sentence

is not needed to give maximum effect to.

the Guidelines within their intended

domain. Because all of Petitioner's

conduct that was charged under the

Guidelines count also was charged under

the pre-Guidelines count (in fact the

concealment of the conspiracy began in

1982 and ran up to November l, 1987 and

then beyond), giving maximum effect to

the Guidelines is achieved by a

concurrent sentence on the Guidelines

count.

III. This Court Should Resolve the

Split in the Circuits as to

Whether a Sentencing Judge Must

Consider Conduct of Which the

Defendant was Acquitted But Which

the Judge Finds to Have Occurred

By Only a Preponderance of Evidence.

The sentencing judge in Petitioner's

case determined that Petitioner should

receive the statutory maximum sentence on

the Guidelines count and that the

Guidelines sentence must run

consecutively to the pre-Guidelines

sentence. The sentencing judge based

this determination on a factual finding,

by only a preponderance of evidence, that

Petitioner was responsible for the murder

of his wife, even though the jury found

that Petitioner was not so liable. The

Court of Appeals upheld the sentencing

judge's decision in both respects:

approving the reliance on acquitted

conduct and factual findings by only 4

preponderance of evidence. See 978 F.2d

at 285-87 (A-19 - A-32). The lower

court's decision is in conflict in both

respects with decisions from other

circuits. Given the tremendous

signficance of sentencing hearings under

the Sentencing Guidelines and the

mandatory nature of factual findings

under the Guidelines, this Court must

resolve the split in the circuits on

these important issues and clarify what a

sentencing judge can rely on and by what

standard a judge makes factual

determinations.

A. Reliance on Acquitted Conduct

The flaws in the lower court's

approval of the use of acquitted conduct

case, makes a factual finding that the

defendant committed murder, even though

the jury found that he was not

responsible for the murder, then the

Sentencing Guidelines mandate that the

judge sentence him as if he had been

convicted of murder. That is what

violates due process, and it is that

difference between Guidelines sentencing

and pre-Guidelines sentencing that the

Court of Appeals failed to recognize.

Second, the lower court also failed to

see the distinction between using

acquitted conduct to merely select a

sentence within a guideline range and

using acquitted conduct to select an

entirely different and more serious

guideline section. Petitioner does not

dispute that all relevant conduct under

makes a factual finding that the

defendant committed murder, even though

the jury found that he was not

responsible for the murder, then the

Sentencing Guidelines mandate that the

judge sentence him as if he had been

convicted of murder. That is what

violates due process, and it is that

difference between Guidelines sentencing

and pre-Guidelines sentencing that the

Court of Appeals failed to recognize.

Second, the lower court also failed to

see the distinction between using

acquitted conduct to merely select a

sentence within a guideline range and

using acquitted conduct to select an

entirely different and more serious

guideline section. Petitioner does not

dispute that all relevant conduct under

Section 1B1.3 should be considered in

selecting a sentence within a guideline

range. What Petitioner's case presents,

however, is a radically different

scenario. In Petitioner's case, the

sentencing judge used acquitted conduct

to select an entirely different guideline

section -- murder instead of conspiracy

to commit murder -- which resulted in a

Gramatic increase in the sentence

mandated by the new guideline section.

The lower court's approval of the use

of acquitted conduct in this manner not

only violates due process, it puts the

court's decision in conflict with United

States .. Brady, 928 F.2d 844 (9th Cir.

1991). In Brady, the court persuasively

stated:

We would pervert our system of

justice if we allowed a defendant to

suffer punishment for a criminal

charge for which he or she was

acquitted. The Guidelines recognize

that voluntary manslaughter is to be

punished less severely than murder

by setting a lower base offense

level for voluntary manslaughter

than for murder. A sentencing judge

should not be allowed to circumvent

this statutory directive by making a

finding of fact -- under any

standard of proof -- that the jury

has necessarily rejected by its

judgment of acquittal. ;

928 F.2d at 851. Although the court in

Brady based its decision on statutory and

not constitutional grounds, see id. at

852 n.14, the tone of the Brady decision

is clearly consistent with Petitioner's

due process argument. This Court should

grant Petitioner's writ to resolve this

split in the circuits concerning the use

of acquitted conduct under the

Guidelines.

B. Use of a Preponderance Standard

of Proof

Even if the reliance on acquitted

conduct does not violate the

Constitution, the use of a preponderance

standard for factual findings does

violate due process where the result of

those findings is a dramatic increase in

the sentence. The lower court's

rejection of Petitioner's argument again

puts its decision in conflict with the

decisions of other circuits. This Court

should grant Petitioner's writ to resolve

that split in the circuits and to clarify

this critical issue concerning standard

of proof at Guidelines sentencing

hearings.

Citing this Court's decision in

McMillan v. Pennsylvania, 477 U.S. 79

(1986), the lower court claims that 4

preponderance standard at a sentencing

hearing always satisfies due process.

See 978 F.2d at 286 (A-22). Not only did the

Court of Appeals again ignore the

difference between Guidelines sentencing,

which mandates a particular sentence

based on a factual finding, and pre-

Guideline sentencing, where factual

findings did not mandate a particular

result, but the Court of Appeals

oversimplified this Court's decision in

McMillan.

In McMillan, this Court made it clear

that the government's power to enhance 4a

sentence on the basis of a factor proved

by a preponderance of evidence does not

allow the government to punish a

defendant for an offense without proving

the elements of that offense beyond a

reasonable doubt. See 477 U.S. at 84-90.

Although this Court upheld in McMillan

the imposition of a minimum sentence on

the basis of a sentencing factor, other

language in the decision clearly

indicated that this Court would not have

approved sentencing on a preponderance

standard for an entirely distinct offense

that carried a dramatically longer

sentence. This Court noted that the

statute in question in McMillan "only

becomes applicable after the defendant

has been duly convicted of the crime for

which he is to be punished." 477 U.S. at

87. The statute "neither alters the

maximum penalty for the crime committed

nor creates a separate offense calling

for a separate penalty..-.-" Id. at 87-

88. The statute ""ups the ante' for the

defendant only by raising to five years

the minimum sentence which may be imposed

within the statutory plan. The statute

gives no impression of having been

tailored to permit the [sentencing

factor] finding to be a tail which wags

the dog of the substantive offense." Id.

at 88.

Elsewhere in McMillan, this Court

noted that the statute there was

different than the statute invalidated in

Mullaney v. Wilbur, 421 U.S. 684 (1975).

In Mullaney, "once the State proved the

elements which Maine required it to prove

beyond a reasonable doubt, the defendant

faced 'a differential in sentencing range

from a nominal fine to a mandatory life

sentence.'" 477 U.S. at 87 (quoting

Mullaney, 421 U.S. at 700).

Although Mullaney involved a statute

that required a defendant to prove a

mitigating factor at trial, the analysis

in Mullaney applies as well to the

sentencing process. In Mullaney, this

Court noted that the State of Maine

sought to limit the holding of In re

Winship, 397 U.S. 358 (1970) "to those

facts which, if not proved, would wholly

exonerate the defendant." 421 U.S. at

697. This Court responded:

This analysis fails to recognize

that the criminal law of Maine, like

that of other jurisdictions, is

concerned not only with guilt or

innocence in the abstract, but also

with the degree of criminal

culpability. Maine has chosen to

distinguish those who kill in the

heat of passion from those who kill

in the absence of this factor.

Because the former are less

"blameworth[y],"...they are subject

to substantially less severe

penaities....

The safeguards of due process are

not rendered unavailing simply

because a determination may already

have been reached that would

stigmatize the defendant and that

might lead to a significant

impairment of personal liberty. The

fact remains that the consequences

resulting from a verdict of murder,

as compared with a verdict of

manslaughter, a@iffers significantly.

Indeed, when viewed in terms of the

potential difference in restrictions

of personal liberty attendant to

each conviction, the distinction

established by Maine between murder

and manslaughter may be of greater

importance than the difference

between guilt or innocence for many

lesser crimes.

Moreover, if Winship were limited

to those facts that constitute a

crime as defined by state law, a

state could undermine many of the

interests that decision sought to

protect without effecting any

substantive change in its law. It

would only be necessary to redefine

the elements that constitute

different crimes, characterizing

them as factors that bear solely on

;

: 55

the extent of punishment.

421 U.S. at 697-98 (citation omitted).

This Court's language in Mullaney

speaks volumes in Petitioner's case.

Under the lower court's interpretation

and application of the Guidelines,

Petitioner can be punished for murder,

even though the government has

established liability for murder only by

a preponderance of evidence after a jury

refused to convict beyond a reasonable

doubt. Rather than being a distinct

offense -- indeed the most serious

imaginable -- that the government must

prove beyond a reasonable doubt, the

murder became nothing more than a

sentencing factor that is used to

Getermine the extent of Petitioner's

punishment under the Guidelines. Under

the lower court's interpretation of the

Guidelines, a defendant convicted of one

offense can be sentenced on the basis of

every other offense having some

connection to the offense of conviction,

even though the defendant was never

charged, tried or convicted of the other

offenses. For example, 4 defendant could

be convicted of 20 counts of mail fraud

(based on 20 separate mailings) that

relate to the collection of life

insurance proceeds, and then be sentenced

to 100 years in prison (five year maximum

sentences on each count, all running

consecutively), based on 4 finding by 4

preponderance of evidence that the

defendant was responsible for the murder

of the life insurance policyholder.

}

Petitioner's case implicates the Due

Process Clause because of the dramatic

increase in his sentence based only on a

preponderance of evidence finding. As

Petitioner contended below, his

Guidelines sentence should have been

based on Section 2A2.1 of the 1988

version of the Guidelines, which was the

version in effect at the time of

Petitioner's original sentencing in 1989.*

*The trial court applied the version of

the Guidelines that became effective

November 1, 1990, which were in effect at

the time of Petitioner's resentencing in

1991. The 1991 Guidelines moved

conspiracy to commit murder from Section

-2A2.1 to a new section 2A1.5. Section

2A1.5 increased the base offense level

from 20 to 28, and directed that

conspiracies that resulted in the death

of a victim be sentenced under the first

degree murder guideline section, 2Al1.1.

The lower courts rejected Petitioner's

argument that the Ex Post Facto Clause of

the Constitution barred the sentencing

judge from applying the new guideline,

since it dramatically increased the

footnote cont'd

offense level for conspiracy to commit

murder. See Miller v. Florida, 482 U.S.

423 (1987); see also Questions Most

Frequently Asked About the Sentencing

Guidelines, Appendix E at Question No. 71

(November 1990). The lower court's

conclusion that Amendment 311, which

changed the offense level for a

conspiracy to commit murder, was merely a

Clarifying amendment and thus could be

applied retroactively, is definitively

rebutted by the commentary to Amendment

311: “This amendment restructures

Section 2A2.1 and increases the offense

level for attempted murder and assault

with attempt to commit murder where the

intended offense, if successful, would

have constituted first degree murder to

better reflect the seriousness of this

conduct. For the same reason, the

enhancement for an offense involving the

offer or receipt of anything of pecuniary

value for undertaking the murder is

increased. For greater clarity, an

additional guideline (Section 2A1.5) is

inserted to cover conspiracy or

solicitation to commit murder." Because

the newer version of the Guidelines

dramatically increased the sentence for

conspiracy to commit murder, its

application in Petitioner's case violated

the Ex Post Facto Clause. This Court

should grant Petitioner's writ if for no

other reason than to clarify this aspect

of the Sentencing Guidelines.

Under the 1988 version of Section

2A2.1, the base offense level for

conspiracy or solicitation to commit

murder is 20. Various enhancements are

listed, but the commentary clearly states

that the enhancements do not apply where

the offense of conviction is a mere

solicitation. Thus, Petitioner has

consistently contended that his base

offense level under Section 2A2.1 would

be 20. Even conceding two separate two-

level increases that the sentencing judge

derived from Chapter 3 of the Guidelines

(two-level increase for being an

organizer and two-level increase for

obstructing the investigation),

Petitioner's offense level would be 24,

which( would result in a sentence of 51-63

months, to run concurrently to his Count

PILES SEI ADAEIRE

‘

One sentence of twenty years.

In contrast, simply by making a

factual finding by a preponderance of

evidence that Petitioner was responsible

for his wife's murder, the sentencing

judge was compelled by the Guidelines to

assign Petitioner an offense level of 43,

which calls for life imprisonment under

the Guidelines. The trial court then

concluded that, in order to approach a

sentence of life imprisonment, the Court

had to sentence Petitioner to the

statutory maximum of twenty years and

then run that sentence consecutively to

the pre-Guidelines sentence. Thus, based

only on a finding by a preponderance of

evidence, the sentencing judge inflated

Petitioner's sentence from no increase at

all (5 years concurrent with the pre-

Guidelines sentence) to twenty years

which was then added to the pre-

Guidelines sentence. When the Guidelines

result in such a dramatic increase in a

sentence such as in Petitioner's case,

the factual findings at sentencing become

the "tail which wags the dog of the

substantive offense." McMillan v.

Pennsylvania, 477 U.S. at 88. That

inbalance in the process is what this

Court found violative of due process in

Mullaney and is equally violative of due

process here.

The lower court's opinion also is in

conflict with the decisions of other

circuits on this issue. In United States

v. Kikumura, 918 F.2d 1084, 1100-02 (3d

Cir. 1990), the court held that a clear

and convincing standard of proof must be

used before a judge can impose such a

dramatic increase in a Guidelines

sentence. Likewise, in United States v.

Townley, 929 F.2d 365, 369-70 (8th Cir.

1991), the court was faced with an

eighteen-level increase in the

defendant's base offense level and a

seven-fold increase in the permissible

sentencing range. Although not

explicitly adopting 4 clear and

convincing standard, the court stated in

Townley that "due process conceivably

could require more than a mere

preponderance....We do not foreclose the

possibility that in an exceptional case,

such as this one, the clear and

convincing standard adopted by our sister

circuit might apply." Id. at 369, 370.

Petitioner's case presents one of the

most important issues to come out of the

Sentencing Guidelines. Because the

results of factual findings mandate the

selection of specific offense levels, the

questions of the standard of proof and

the reliance on acquitted conduct are of

Supreme importance. One simple factual

finding, rejected by the jury, has

resulted in a mandatory and dramatic

increase in a defendant's sentence,

despite the lack of any evidence beyond a

preponderance. Petitioner has been

sentenced as if convicted of the most

serious offense imaginable, despite the

jury's rejection of the government's

proof. This Court should grant

Petitioner's writ to correct this

—————-

injustice and prevent the Sentencing

Guidelines from being so wrongly

interpreted for future defendants.

CONCLUSION

Wherefore, Petitioner respectfully

prays that this Honorable Court grant

this Petition and issue a writ of

certiorari to review the judgment of the

United States Court of Appeals for the

Seventh Circuit.

Respectfully submitted,

i a cf Pa Iedl.

pi A., Tuite* ©

» Ba dt

Med D \J PAN - _

‘cule Stratton

Tuite, Stratton! & Menaker

105 West Adams Street

3lst Floor

Chicago, IL 60603

312/ 641-1022

*Counsel of Record

HORA!

APPENDIX

Table of Contents

Opinions and Orders

Opinion, United States Court

of Appeals for the Seventh

Circuit, October 14, 1992........ A-1

Order, United States Court

of Appeals for the Seventh

Circuit, November 9, 1992........ A-33

Sentencing Guidelines Sections

2A2.1 Assault with Intent to

Commit Murder: Conspiracy

or Solicitation to Commit

PRE occ eseceeeonveseese A-34

3D1.2 Groups of Closely-Related

COUNTB. ccc cccccvccccccccs A-35

9G1.1 Sentencing on a Single Count

TT OL Cree A-36

9G1.2 Sentence on Multiple Counts

OF CONVICTION. ..ccccccves A-37

{Opinion of the United States Court of

Appeals for the Seventh Circuit in United

States v. Masters]

Before BAUER, Chief Judge, EASTERBROOK,

Circuit Judge, and WOOD, Jr., Senior Circuit

Judge.

EASTERBROOK, Circuit Judge.

Judges and genies have this in common:

by granting supplicants exactly what they

wish for, they may produce misery and

regret. Eakin v. Continental Illinois

National Bank, 875 F.2d 114, 118 (7th

Cir. 1989). Alan Masters, sentenced to

40 years in prison for racketeering

activities that ran the gamut from

protecting bookies to soliciting the

murder of his wife, asked to be

resentenced under the sentencing

guidelines. He had received the maximum

sentence for the crimes of which he had

been convicted (consecutive 20-year

A-i

terms) and believed that the guidelines

required a lower sentence. We granted

his wish. 924 F.2d 1362, 1369 (7th Cir.

1991). Once again the district court

selected a 40-year term--but with a big

difference. Under the first sentence,

Masters was eligible for parole after 10

years, and a well-behaved prisoner had to

be released after serving two-thirds of

his sentence, shortened by 120 days of

good time credit per year. 18 U.S.C.

Sections 4161, 4205(a), 4206(d) (1976)

ed.). Imprisonment under the Sentencing

Reform Act of of 1984, by contrast, comes

without possibility of parole, and a

prisoner earns good time at a maximum

rate of 54 days per year. 18 U.S.C.

Section 3624(b). Masters now rues his

request and appeals again. So does his

henchman James Keating, who on the first

appeal adopted Masters' arguments but now

disclaims any desire for a guideline

sentence.

On the first apoeal Keating adopted all

of Masters' arguments, adding a few of

his own. We understood him to seek

resentencing under the guidelines and

remanded so that the district judge could

determine whether the conspiracy ended -

befcre November 1, 1987, the date the new

sentencing system took effect. Keating

did not seek rehearing, and in the

district court he clamored for the

benefit of the guidelines--until he saw

how the prosecutor calculated the

guideline sentence for Masters. Then he

yanked his request and insisted that he

A-3

had never wanted resentencing. Too late.

By adopting all of Masters' arguments on

the first appeal, Keating invited what

happened. If he believed that we

misunderstood the effect of this

adoption, he should have asked the first

panel to rescind the portion of the

judgment remanding his case. Instead he

embraced the remand, and the

recalculation, until the numbers turned

sour.

Masters concedes that his criminal

enterprise continued into the period

covered by the Sentencing Reform Act.

Keating submits that he dropped out

before November 1, 1987. The jury

convicted Keating on an indictment

charging that the conspiracy continued

A-4

through mid-1988. Never during trial, at

the initial sentencing, or on the first

appeal, did Keating say that he withdrew

at any earlier date. In his initial

filing after remand, Keating told the

district court: "There is no evidence

that your Petitioner withdrew from the

conspiracy. Therefore, the conspiracy

continued after November 1, 1987."

Keating changed his tune when he realized

the effect of the guidelines, but he was

right on the facts: there is no evidence

that he withdrew, and the district judge

so found. He took no step to end the

criminal adventure or report its

operations to the authorities, did not

make a clear break of it and thus did not

withdraw under the demanding standard of

the criminal law. United States v.

Patel, 879 F.2d 292 (7th Cir. 1989). As

Keating's remaining arguments track

Masters', we need not mention him again.

Masters was convicted of racketeering

and conspiracy to commit racketeering.

Only the latter offense lasted into the

guideline era. Masters contends that a

court should start with Section 2El.1,

which applies to racketeering

conspiracies. That guideline provides a

base offense level of 19 or the level

appropriate to the substantive crime,

whichever is greater. Because in

Masters' view that offense was

solicitation to commit murder, the

substantive guideline is Section 2A2.1.

(Rather, was Section 2A2.1, as that

guideline existed before amendment 311.)

Guideline 2A2.1 provided a base offense

level of 20. Masters submits that

because Section 2El.1 lists no

adjustments, none can be made. Combining

an offense level of 20 with his criminal

history category of I produces a

guideline range of 33-41 months. Because

he received more than that for the

racketeering offense, Masters concludes

‘that the guideline sentence for the

conspiracy is effectively zero, running

concurrently with the substantive RICO

sentence. See U.S.S.G. Section 5G1.2(c).

The district judge Saw things

‘differently. He calculated the sentence

in three ways, each of which produced 40

years' imprisonment. Each of the three

depends to some degree on his finding

that Masters "is directly responsible for

the murder of his wife." The judge so

found even though the jury did not answer

a special interrogatory asking about the

murder. Masters contends that this

omission produced an implicit acquittal,

an argument to which we return.

1. Section 2E1.1(a)(2) calls for use

of "the offense level applicable to the

underlying racketeering activity." Not

the base offense level, as Masters would

have it, but the whole offense level.

Guideline 2X1.1(a) drives home this

point, providing that in cases of

attempt, solicitation, and conspiracy

that fall outside other guidelines, the

court should use the “base offense level

from the guideline for the substantive

offense, plus any adjustments from such

A-8

guideline for any intended offense

conduct that can be established with

reasonable certainty." Then Section

2X1.1(b) provides some increases on top

of the "base" level computed in this way,

Starting from the base of 20 in the

former version of Section 2A2.1, the

district judge added 2 levels for more

than minimal planning (Section

2A2.1(b)(1)), 9 levels for the use of a

firearm to inflict bodily injury on

Dianne Masters (Section 2A2.1(b)(2),

(3)), and 2 more levels for paying money

to other persons in connection with the

crime (Section 2A2.1(b)(4)). Thus the

district judge arrived at 33 within

Section 2A2.1 itself. Then he turned to

generally applicable enhancements: 2

levels because Mrs. Masters was

A-9

physically restrained (Section 3Al1.3), 2

levels because Masters was the organizer

or leader of the conspiracy (Section

3B1.1(c)), and 2 levels for obstruction

of justice (Section 3Cl.1). Level 39

yields a sentencing range of 262-327

months. Nothing in the computation thus

far reflects the victim's death. Because

Dianne Masters died and Alan Masters was

responsible, the judge concluded that an

upward departure to 480 months is

appropriate. See U.S.S.G. Section 5K2.1,

providing that departure is in order when

a death results.

2. Section 2El.1(a)(2) refers to "the

offense level applicable to the

underlying racketeering activity."

Instead of turning to the guideline for

conspiracy to commit murder, as in the

prior method, one may turn to the

guideline for murder, Section 2Al.1. The

base offense level for murder is 43.

Life imprisonment is the sentence

prescribed for level 43 offenses. To

come as close to life imprisonment as

possible, the court gave consecutive

maximum sentences on each count, for a

total of 40 years. Guideline 5G1.2(d)

requires this approach.

3. Amendment 311, effective

November 1, 1990, moved conspiracy to

commit murder from Section 2A1.5. This

guideline Says that "{i]f the offense

resulted in the death of a victim, apply

Section 2Al.1 (First Degree Murder)."

U.S.S.G. Section 2A1.5(c)(1). That takes

us straight to Method 2. Congress

A-11l

nite

provided that courts must apply the

guidelines "that are in effect on the

date the defendant is sentenced". 18

U.S.C. Section 3553(a)(4). Masters was

sentenced before amendment 311 but

resentenced after its adoption. He

contends that ii on post facto clause of

the Constitution prevents the court from

applying this amendment to him. But see

United States v. Bader, 956 F.2d 708 (7th

Cir. 1992). Sidestepping this

contention, the district court treated

amendment 311 as clarifying rather than

changing the law--as demonstrating, in

other words, that Method 2 has been the

right one ail along.

Like the district judge, we conclude

that Method 2 is proper. Methods 1 and 3

A-12

- reinforce the result, demonstrating the

(rough) internal consistency of the

guidelines. Masters insists that the

guidelines implement a charge-offense

system and observes that he was neither

charged with nor convicted of murder.

True enough, the Sentencing Commission

rejected real-offense sentencing as

impractical, see Stephen Breyer, The

Federal Sentencing Guidelines and the Key

Compromises Upon Which They Rest, 17

Hofstra L.Rev. 1, 8-12 (1988); Ilene H.

Nagel, Structuring Sentencing Discretion:

The New Federal Sentencing Guidelines, 80

J.Crim.L. & Criminology 883, 914-25

(1990). The guidelines start with the

offense of conviction. U.S.S.G. Section

1B1.2(a); United States v. Missick, 875

F.2d 1294, 1302 (7th Cir. 1989). But

A-13°4

real-offense principles influence not

only the aggravating and mitigating

factors but also the definition of

relevant conduct under Section 1B1.3.

William W. Wilkins, Jr. & John R. Steer,

Relevant Conduct: The Cornerstone of the

Federal Sentencing Guidelines, 41

S.C.L.Rev. 495 (1990); Nagel, 80

J.Crim.L. & Criminology at 925-27. For

example, the guidelines use the full

quantity of drugs sold or loot stolen in

a single scheme or course of conduct, not

just the amount the prosecutor names in

the indictment, to determine the

seriousness of an offense. U.S.S.G.

Section 1Bl1.3(a)(2); United States v.

White, 888 F.2d 490 (7th Cir. 1989).

Cross-references within the guidelines

A-13-2

introduce real-offense principles into

the charge-offense system. United States

v. Davern, 970 F.2d 1490 (6th Cir.

1992)(in banc). Section 2El.1(a)(2),

which requires the court to use "the

offense level applicable to the underlying

racketeering activity", speaks of the

underlying activity and not an underlying

conviction. Often there will be no other

conviction, and the existence of one in

this case does not change the nature of

the cross-reference. Section

1B1.3(a)(iii) says that "cross references

in Chapter Two ... shall be determined on

the basis of the following: (1) all acts

and omissions committed and aided or

abetted by the defendant ... that

occurred during the commission of the

offense of conviction". The murder of

A-14

Dianne Masters occurred during the

racketeering conspiracy. So Section

2El1.1(a)(2), read from the perspective of

Section 1B1.3(a), directs the court to

the murder guideline rather than the

solicitation guideline. At least it does

this if the court's finding that Masters

is responsible for his wife's murder is

sustainable, and the process is otherwise

consistent with the Constitution.

Masters tries to knock out the

entire guideline sentence with the

argument that consecutive terms for

racketeering and racketeering conspiracy

violate the double jeopardy clause. How

could this be, given the ancient

principle that choate and inchoate crimes

may be punished separately? United

States v. Felix, U.S. , a8 8.

1377, 118 L.Ed.2d 25 (1992). An overlap

in the evidence used to prove the two

crimes does not matter; the elements of

the offense, and not the evidence used to

prove these elements, identify separate

crimes. Id. U.S. at - ,» 112

S.Ct. at 1382-83. Then there is the

further rule that cumulative punishment

is always consistent with the double

jeopardy clause, provided there is but a

Single trial. Missouri v. Hunter, 459

U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535

(1983); Albernaz v. United States, 450

U.S. 333, 343-44, 101 S.Ct. 1137, 1144-

45, 67 L.Ed.2d 275 (1981). According to

Masters, because racketeering is an

organized activity, it is impossible to

be a racketeer and not be a conspirator.

A-16

Provided there is only one trial, it is a

matter of nomenclature whether the

legislature says that a particular

enterprise violates two laws, each

punishable by 20 years' imprisonment, or

one law punishable by 40 years'

imprisonment. Masters does not contend

that consecutive sentences for

racketeering and racketeering conspiracy

are impermissible under the "elements"

approach used since Blockburger v. United

States, 284 U.S. 299, 52 S.Ct. 180, 76

L.Ed. 306 (1932), to decide when criminal

statutes establish separate offenses. He

urges identity of evidence, not identity

of elements. Felix, Albernaz, and

Hunter, sink that contention.

To make headway, Masters needs to

A-17

upset the district judge's finding that

he is responsible for the murder of his

wife. Plenty of evidence supports the

finding, but Masters insists that the

judge had no business reexamining the

jury's acquittal. The judge submitted to

the jury a set of verdict forms listing

"racketeering activities" in which

Masters may have engaged. The jurors

checked off lines indicating findings

that Masters planned and solicited the

murder of his wife and participated in

the overall racketeering enterprise.

They left blank a line concerning the

actual murder. Masters treats this

omission as a finding that he is not

responsible; the prosecutor replies that

the jury, having found all it needed to,

Gecided not to resolve the question.

A-18

Green v. United States, 355 U.S. 184,

78 S.Ct. 221, 2 L.Ed.2d 199 (1957), which

uses an “implicit acquittal" approach

similar to the one Masters espouses,

could limit the prosecutor's ability to

try Masters for the crime of murder. But

of course the prosecutor does not want to

try him for that offense. Our dispute

concerns the selection of a sentence for

the crime of conspiracy. A sentence at

the top of the statutory range does not

punish Masters for a crime he didn't

commit; it uses all available information

about his character and dangerousness in

choosing the sentence for the crime of

which he stands convicted. Judges have

been considering defendants' activities

and character since long before there

A-19

were guidelines, with consistent approval

from the highest court. E.g., Roberts v.

United States, 445 U.S. 552, 100 S.Ct.

1358, 63 L.Ed.2d 622 (1980); United

States v. Grayson, 438 U.S. 41, 98 S.Ct.

2610, 57 L.Ed.2d 582 (1978); Williams v.

Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3

L.Ed.2d 516 (1959); Williams v. New York,

337 U.S. 241 (1949); see also Chapman v.

United States, U.S. », ee BcGSa

1919, 114 L.Ed.2d 524 (1991); United

States v. Pinto, 875 F.2d 143 (7th Cir.

1989). This is one reason why we have

held that judges may take other crimes

into account when selecting a sentence

under the guidelines, even if the

defendant has been charged with and

acquitted of those crimes. United States

v. Fonner, 920 F.2d 1330, 1332-34 (7th

Cir. 1990); see also, e.g., United States

v. Morrison, 946 F.2d 484, 501 (7th Cir.

1991); United States v. Welch, 945 F.2d

1378, 1385 (7th Cir. 1991); United States

v. Lawrence, 934 F.2d 868, 873-74 (7th

Cir. 1991), id. at 875 (concurring

opinion). An acquittal means that the

charge was not proven beyond a reasonable

doubt; it does not mean that the

defendant didn't do it. Dowling v.

United States, 493 U.S. 342, 110 S.Ct.

668, 107 L.Ed.2d 708 (1990). We

recognize that a divided panel of the

ninth circuit has forbidden district

judges to consider conduct of which a

person has been acquitted, United States

v. Brady, 928 F.2d 844 (9th Cir. 1991),

but we have previously announced our

disagreement with that court's

conclusion. United States v. Smith, 953

F.2d 1060, 1066 (7th Cir. 1992).

All that remains is Masters' contention

that in considering whether a defendant

committed some other offense, courts

should use a standard more exacting than

the preponderance of the evidence. As a

constitutional argument this goes

nowhere. McMillan v. Pennsylvania, 477

U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67

(1986), hoids that the preponderance

standard satisfies the due process

clause. We have applied this holding to

sentencing under the federal guidelines.

United States v. Ebbole, 917 F.2d 1495

(7th Cir. 1990). Similarly, the Supreme

Court has concluded that the

preponderance standard is appropriate

when deciding whether to use other crimes

evidence at trial. Huddleston v. United

States, 485 U.S. 681, 690 (1988). The

district judge used the preponderance

standard when concluding that Masters is

responsible for his wife's murder, and

this was entirely proper. Conviction at

trial supplies all of the justification

the Constitution requires for depriving

the defendant of liberty for any term up

to the maximum prescribed by statute.

How much of that time to grant back in

sentencing, and what procedures to use

when doing so, are legislative rather

than constitutional choices given

McMillan and its many predecessors.

Contemporaneously with our decision in

Ebbole, the third circuit concluded that

A-23

when the findings made at sentencing

transform the offense of conviction into

something much more grave, and with a

much more severe penalty, the court sould

use an enhanced burden of persuasion.

United States v. Kikumura, 918 F.2d 1084,

1098-1102 (3d Cir. 1990). Kikumura was

convicted of transporting explosives

across state lines, with a guideine range

of 27-33 months. The district judge

concluded that Kikumura planned to use

the bombs to kill scores of people and

departed upward to the statutory maximum

sentence, 30 years. This twelve-fold

increase in the punishment, the court of

appeals concluded, required greater

confidence than the preponderance of the

evidence.

Although Kikumura expressed this

conclusion in constitutional terms, it is

impossible to square such a holding with

McMillan--or with the history of

discretionary sentencing in the United

States. Before November 1, 1987, some

federal judges regularly sentenced

defendants to the maximum terms provided

by law, and tacked sentences

consecutively, on hunch and whim. A few

even acquired sobriquets such as "Maximum

John" (Judge Sirica, of Watergate fame).

Others rejected deterrence and desert as

justifications of imprisonment and gave

sentences reflecting disparate views

about rehabilitation. States

occasionally adopted indeterminate

sentencing systems. For some years in

California every felony carried a term of

life, with release in the discretion of

the Adult Authority. Zero-to-life

sentences meant that everything lay in

the hands of persons who were scarcely

obliged to consider evidence, let alone

to weigh it carefully. See Marvin

Zalman, The Rise and Fall of the

Indeterminate Sentence, 24 Wayne L.Rev.

45 (1977). The guidelines represent a

reaction against vesting such discretion

in the hands of persons who may have

Gramatically different ideas about

punishment. Yet they hardly exemplify a

consensus that in 1987 what had been the

norm in 20th Century sentencing became

constitutionally repulsive. See United

States v. Silverman, 976 F.2d 1502 (6th

Cir. 1992)(in banc)(constitutional rules

applicable to pre-guideline sentencing,

including the preponderance standard,

still govern); United States v. Galloway,

976 F.2d 414 (8th Cir. 1992)(in

banc)(same); United States v. Restrepo,

946 F.2d 654 (9th Cir. 1991)(in

banc)(same); cf. United States v. Wise,

976 F.2d 393 (8th Cir. 1992) (in banc)

(confrontation clause does not apply at

sentencing under the guidelines). While

sentencing practices have cycled, from

fixed terms in the 19th Century to

discretion in the middle 20th Century to

quided discretion in the late 20th

Century, the due process clause has

remainec the same. It is statutes,

rules, practices, and ideas about

criminology that have changed. Rather

than treating the Constitution as

A-27

paraffin that may be poured into a mold

suiting current tastes, courts properly

look to these statutes, rules, and

practices. The living legal community,

and not an imagined decision imputed to

those long departed, is responsible for

contemporary sentencing practices.

No one can deny that the guidelines,

coupled with recent increases in the

maximum terms for many offenses, have

increased the importance of sentencing

vis-a-vis trials. We have indicated some

sympathy with the conclusion that when

sentencing becomes the dog and the trial

the tail, judges should borrow some of

the devices used at trial to protect the

defendant's interests and improve

accuracy (two objectives that are not

A-28

always compatible). See United States v.

Trujillo, 959 F.2d 1377, 1382 (7th Cir.

1992); United States v. Schuster, 948

F.2d 313, 315 (7th Cir. 1991). Cf.

United States v. Jewel, 947 F.2d 224, 238

(7th Cir. 1991)(concurring opinion).

Neither the Sentencing Reform Act nor the

guidelines specifies a burden of

persuasion, so courts must devise their

own. We are free to modify this standard

as wisdom gained from experience

suggests. But the preponderance standard

remains the norm--in sentencing, as in

almost all litigation, because it treats

errors in either direction as equally

costly. Grogan v. Garner, U.S. ‘

, 111 S.Ct. 654, 659, 112 L.Ed.2d 755

(1991); Herman & MacLean v. Huddleston,

459 U.S. 375, 390, 103 S.Ct. 683, 691-92,

A-29

74 L.Ed.2d 548 (1983). An excessive

sentence injures the defendant, but an

insufficient sentence injures society,

especially persons who may be victims of

crime tomorrow if courts do too little to

Geter and incapacitate criminals today.

Nothing about Masters' sentencing

suggests any need for an enhanced burden

of persuasion. Taking an offender's

other crimes into account is, as we have

remarked, an old practice indeed. The

Gistrict judge obviously took the murder

into account when imposing consecutive

20-year terms in what he supposed was a

pre-guideine sentence. On remand, the

district judge reimposed these terms

under the guidelines. Here we find no

Gramatic alteration of the roles of trial

A-30

ican catia eaiastmiliaatiieiaainiiaiadi ili

and sentence. True, the guideline

sentence means no parole and lesser good-

time credits, but these statutory changes

dod not alter the balance between trial

and sentencing. Working through the

guideines after the fashion of Method 1

also shows the difference between our

case and Kikumura: instead of departing

upward by an order of magnitude, the

district judge here used the finding of

murder to support a four-level departure,

from level 39 to level 43. So we may

defer until another day the decision

whether development in a common-law

fashion ever would lead to the use of a

clear-and-convincing standard in

sentencing. Finding murder by a

preponderance of the evidence violated

none of Masters' rights.

A-31

AFFIRMED.

( JUDGMENT ON PETITION FOR REHEARING AND

SUGGESTION OF REHEARING EN BANC OF THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT).

Entered on November 9, 1992

Case no. 91-2985

Before BAUER, Chief Judge, EASTERBROOK,

Circuit Judge and WOOD, Senior Circuit

Judge.

PER CURIAM:

Defendant-Appellant filed a petition

for rehearing and suggestion of rehearing

en banc on October 28, 1992. No judge in

regular active service has requested a

vote on the suggestion of rehearing en

banc, and all of the judges on the panel

have voted to deny rehearing. The

petition for rehearing is therefore

DENIED.

SENTENCING GUIDELINES SECTIONS

2A2.1 Assault with Intent to Commit

Murder:

Conspiracy or Solicitation

to Commit Murder; Attempted Murder

(a) Base Offense Level: 20

(bob) Specific Offense

Characteristics

(1)

(2)

(3)

If an assault involved

more than minimal

planning, increase by 2

levels.

(A) If a firearm was

discharged, increase by

5 levels; (B) if a

firearm or a dangerous

weapon was otherwise

used, increase by 4

levels; (C) if a

firearm or other

dangerous weapon was

brandished or its use

was threatened,

increase by 3 levels.

If the victim sustained

bodily injury, increase

the offense level

according to the

seriousness of the

injury:

Degree of Increase in

Bodily Injury Level

(A) Bodily Injury add 2

(B) Serious Bodily

Injury add 4

Life-Threatening

Bodily Injury add 6

3D1.2.

(4) If a conspiracy or

assault was motivated

by a payment or offer

of money or other thing

of value, increase by 2

levels.

Groups of Closely-Related Counts

All counts involving

substantially the same harm shall

be grouped together into a single

Group. A count for which the

statute mandates imposition of a

consecutive sentence is excluded

from such Groups for purposes of

Sections 3D1.2-3D1.5. Counts

involve substantially the same

harm within the meaning of this

rule:

(a) When counts involve the same

victim and the same act or

transaction.

(b) When counts involve the same

victim and two or more acts

A-35

or transactions connected by

a common criminal objective

or constituting part of a

common scheme or plan,

including, but not limited

to:

(1) A count charging

conspiracy or

solicitation and a

count charging any

substantive offense

that was the sole

object of the

conspiracy or

solicitation. 28

U.S.C. Section

994(1)(2).

9G1.1. Sentencing on a Single Count of

Conviction.

(a) Where the statutorily

authorized maximum sentence

is less than the minimum of

the applicable guideline

range, the statutorily

euthorized maximum sentence

shall be the guideline

sentence.

(b) Where a statutorily required

minimum sentence is greater

than the maximum of the

applicable guideine range,

the statutorily required

minimum sentence shall be

5G1.2.

(c)

the guideline sentence.

In any other case, the

sentence may be imposed at

any point within the

applicable guideline range,

provided that the sentence

(1) is not greater than the

statutorily authorized

maximum sentence, and

(2) is not less than any

statutorily required

minimum sentence.

Sentence on Multiple Counts

of Conviction

(a)

(b)

The sentence to be imposed

on a count for which the

statute mandates a

consecutive sentence shall

be determined and imposed

independently.

Except as otherwise required

by law (see Section

5Gl.1(a),(b)), the sentence

imposed on each other count

shall be the total

punishment as determined in

accordance with Part D of

Chapter three, and Part C of

this Chapter.

(c)

(d)

If the sentence imposed on

the count carrying the

highest statutory maximum is

adequate to achieve the

total punishment, then the

sentences on all counts

shall run concurrently,

except to the extent

otherwise required by law.

If the sentence imposed on

the count carrying the

highest statutory maximum is

less than the total

punishment, then the

sentence imposed on one or

more of the other counts

shall run consecutively, but

only to the extent necessary

to produce a combined

sentence equal to the total

punishment. In all other

respects sentences on all

counts shall run

concurrently, except to the

extent otherwise required by

law.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.