The opinion of the court was delivered by: GREEN
This case requires a renewed focus on one of the most troubling issues presented by the Guidelines Manual promulgated by the United States Sentencing Commission.
Under one of the "cross reference" provisions of the Guidelines, § 2K2.1(c), a criminal defendant can effectively be convicted of one crime and sentenced for another -- even if the defendant has been acquitted for that other crime. See United States v. Lombard, 102 F.3d 1, 4 (1st Cir. 1996) [hereafter Lombard II ] ("[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 . . . ") (emphasis added).
Some circuit courts of appeals have recognized the argument that this provision has the flavor of a "bait and switch" that would violate the Fifth Amendment's Due Process Clause, but they have nonetheless concluded that even when application of the cross reference significantly increases the sentence, such application passes constitutional muster. See, e.g., United States v. Fenner, 147 F.3d 360, 365-67 (4th Cir. 1998); Lombard II, 102 F.3d at 5; cf. United States v. Hahn, 960 F.2d 903, 908 (9th Cir. 1992) ("In mandating penal consequences for 'relevant conduct' in certain cases, the Guidelines implicate the [due process] principles enunciated in In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 . . . (1970).").
In this case, defendant Wilbert J. Drew ("Mr. Drew" or "Drew") pled guilty to one count of unlawful possession of a firearm by a person under a civil protection order in violation of 18 U.S.C. § 922(g)(8) (1994 & Supp.). By statute, the maximum sentence that can be imposed for such offense is 10 years. See 18 U.S.C. § 924(a)(2). However, under the Guidelines, § 2K2.1, absent a cross reference and by Mr. Drew's calculation, a person with his criminal history would be exposed to a sentence ranging from 30 to 37 months. But if the cross reference provision, § 2K2.1(c), is applied, Drew's sentencing exposure increases more than twofold.
Upon consideration of the evidence introduced at the sentencing hearing held on September 28, 1998, and the entire record herein, the Court is constrained to find that application of § 2K2.1(c) is required because Mr. Drew did assault his wife with a premeditated intent to kill her. As a result, Drew must receive a sentence ranging from 70 to 87 months, and he has today been sentenced by separate Judgment to serve 80 months in prison.
As a matter of sentencing policy, criminal sentences can be based upon a "charge offense" system or a "real offense" system. See Julie R. O'Sullivan, In Defense of the U.S. Sentencing Guidelines' Modified Real-Offense System, 91 Nw. U.L.Rev. 1342, 1344 (1997) [hereafter O'Sullivan, Defense of Modified Real-Offense System ]. The difference between the systems lies in what information should be presented and considered at sentencing -- information pertaining only to the charged offense or other relevant information including that pertaining to uncharged, unconvicted or acquitted offenses related to the charged offense. See id. at 1344-45.
For policymakers the choice is not binary, and indeed, the Sentencing Commission adopted a "modified real offense" system as a "key compromise" reflected in the Guidelines. See, e.g., U.S.S.G. 5-6 (1997) (policy statement); U.S.S.G. App. C, Commentary, Background to Amendment 374 (1997) at 186-87 ("The firearm statutes are often used as a device to enable the federal court to exercise jurisdiction over offenses that otherwise could be prosecuted only under state law"); see also Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 Hofstra L. Rev. 1, 8-12 (1988); David Yellen, Illusion, Illogic, and Injustice: Real Offense Sentencing and the Federal Sentencing Guidelines, 78 Minn. L. Rev. 403, 404 & nn. 3-5 (1993) [hereafter Yellen, Real Offense Sentencing ].
As a result of the Sentencing Commission's policy choice, the Court at sentencing is to consider all relevant conduct pertaining to the charged offense. U.S.S.G. § 1B1.3(a)(1)(A) (1997). In this case, Drew was charged with the one federal count to which he has pled guilty and twelve counts for D.C. Code violations that have been dismissed. See United States v. Drew, 5 F. Supp. 2d 16, 17-18 (D.D.C. 1998) (describing charges in the indictment). The Court must still consider the conduct underlying the dismissed counts as "relevant conduct" under the Guidelines, if the Government proves by a preponderance of the evidence that such conduct occurred. See United States v. Pinnick, 310 U.S. App. D.C. 294, 47 F.3d 434, 437 (D.C. Cir. 1995).
Where the facts regarding relevant conduct are set forth in the presentence investigation report ("PSR"), and the defendant does not object to the probation officer's statement of facts therein, the Court may rely on the PSR to conclude that the defendant committed the acts as stated unless the PSR's statement of the offense conduct is internally contradictory, wildly implausible, or in direct conflict with the evidence heard at trial. Pinnick, 47 F.3d at 437. In this case, Mr. Drew has not objected to the following statement of the offense conduct:
9. . . . . On October 27, 1997, the Honorable Zoe Bush . . . issued a one-year [civil protection order] . . . which stated that [Drew] "shall not assault, threaten, harass, or physically abuse petitioner (Renay Drew) or her children in any manner." . . . .
10. On November 1, 1997, at about 2:00 a.m., the defendant telephoned his wife . . . . The defendant repeated his feelings of despair and Mrs. Drew advised that she was hanging up the telephone. Defendant Drew responded that he was going to do something drastic and, again, his wife responded that she was hanging up the telephone. . . .
11. At approximately 3:30 a.m., on November 2, 1997, the defendant broke into Mrs. Drew's Washington, D.C. residence . . . after shattering a window. Once inside, he went up the stairs to his wife's bedroom. Frightened by the sudden commotion, Mrs. Drew locked her bedroom door and locked herself in a closet with a portable telephone. She dialed 911 for emergency assistance. From the closet area, the victim heard her husband knocking on the bedroom door. He forced the bedroom door open and then forced open the closet door. At gunpoint he forced his wife out of the closet and into the upstairs hallway. The couple's 19-year-old son exited his bedroom and confronted his father, who demanded that he return to his room. Defendant Drew proceeded down the hallway and was then confronted by the couple's 15-year-old son. The couple proceeded down the stairwell and defendant Drew began to talk about how he was tired and how the system had failed him. He instructed his family to call news reporters because he had been failed by the system.
12. At the height of the disturbance, Drew pulled the trigger on the shotgun; his wife begged him not to shoot her. As Drew pulled the trigger, his wife lunged towards him and their two sons joined in to gain control of the situation. The firearm did not discharge. During the altercation, Mrs. Drew was able to retrieve the shotgun from her husband's possession, while their sons held him down to await the arrival of police officers. First District Metropolitan Police Department officers, who had been dispatched to ...