The opinion of the court was delivered by: John D. Bates United States District Judge
Following his conviction at a jury trial on narcotics and firearm offenses, defendant was sentenced to 79 months imprisonment on April 13, 2004 under the then-mandatory Federal Sentencing Guidelines.*fn1 He subsequently appealed the conviction and sentence. In the intervening time, the Supreme Court decision in United States v. Booker, 543 U.S. 220 (2005), was issued, changing the landscape of federal sentencing by holding that mandatory application of the Guidelines in certain circumstances violates the Sixth Amendment and remedying the violation by making the Guidelines advisory only. On September 30, 2005, the Court of Appeals affirmed defendant's conviction but remanded the case to this Court "'for the limited purpose of allowing it to determine whether it would have imposed a different sentence, materially more favorable to the defendant, had it been fully aware of the post-Booker sentencing regime.'" United States v. Edwards, 424 F.3d 1106, 1108 (D.C. Cir. 2005) (quoting United States v. Coles, 403 F.3d 764, 771 (D.C. Cir. 2005) (per curiam)).
Defendant contends that a two-level enhancement to the Guidelines base offense level, based on the Court's finding that he possessed a firearm during the drug offense, violates his Sixth Amendment right to trial by jury because he was acquitted on the firearm charge. Otherwise, defendant agrees that the advisory Guidelines range was correctly calculated. Thus, the issue presented is whether, in the exercise of its discretion and consistent with Booker, a sentencing court may increase the advisory Guidelines range based on acquitted conduct proven by a preponderance of the evidence. As the Court of Appeals noted, the practice was upheld against a Fifth Amendment double jeopardy challenge in United States v. Watts, 519 U.S. 148, 157 (1997), but the Supreme Court has not determined whether the practice violates the Sixth Amendment. Edwards, 424 F.3d at 1108.
Although the parties have submitted supplemental sentencing memoranda, both sides have focused more on whether a departure below the advisory Guidelines range is warranted than on the constitutionality of sentencing enhancements based on acquitted conduct. Indeed, neither side makes any reference to the rapidly-growing body of case law on this important, complex issue. The Court has reviewed the parties' appellate briefs, which frame the issue of acquitted conduct with more clarity than do the briefs to this Court (albeit not substantially more), and has conducted an independent review of the case law. After due consideration of the debate on this issue, the Court concludes that Booker leaves intact the long-standing authority of the sentencing judge to consider acquitted conduct proven by a preponderance of the evidence, without violating the Sixth Amendment. Thus, as explained below, the Court determines that defendant's advisory Guidelines range was properly calculated with a two-level increase in the offense level based on acquitted conduct. The Court further determines that, had it been fully aware of the post-Booker advisory sentencing regime at the time of the sentencing, the Court would have imposed the same sentence.
On January 22, 2004, following a jury trial, defendant was convicted of unlawful possession with intent to distribute phencyclidine (PCP) under 21 U.S.C. §§ 841(a)(1)(A) and 841(b)(1)(C) and acquitted of using, carrying, and possessing a firearm during a drug trafficking offense under 18 U.S.C. § 924(c)(1). The jury was unable to reach a unanimous verdict on the charge of unlawful possession of a firearm and ammunition by a person convicted of a crime punishable by imprisonment for a term exceeding one year (18 U.S.C. § 922(g)(1)).
The Presentence Report recommended a base offense level of 20 for the 58.9 net grams of phencyclidine on which the defendant was convicted. Two points were then added to the base offense level for defendant's possession of a firearm in connection with the distribution offense. With a total offense level of 22, and a criminal history category of V, the Guidelines range was 77 to 96 months imprisonment.
At the sentencing hearing, the Court found by a preponderance of the evidence that the defendant had possessed a firearm during commission of the distribution offense. Hearing Tr. at 18-21 (April 13, 2004) ("Tr."). The Court's finding was supported by evidence that showed defendant was in the driver's seat of the car at the time of the arrest, and that two guns were under the driver's seat. Id. at 18. The Court credited the testimony of two officers who observed defendant making downward movements pushing the guns back under the seat in an apparent attempt to conceal them, and also considered defendant's previous conviction of possession of a handgun as evidence relevant to his knowledge, intent, and absence of mistake in possessing the guns. Id. at 18-20.
Defendant asserted on appeal, as he does now, that an enhancement based on acquitted conduct -- possession of a firearm -- is prohibited under the Sixth Amendment and Booker (see Edwards, 424 F.3d at 1108), and thus asks the Court to begin with an advisory Guidelines range of 63-78 months based on an offense level of 20. Defendant further asserts that some unidentified sentence below the Guidelines range is "sufficient, but not greater than necessary" to comply with the factors set forth in 18 U.S.C. § 3553(a). The government contends that, as a sentence within the Guidelines range, the original sentence is presumptively reasonable, and that the Court's specific findings with respect to the nature and circumstances of the offense and the history and characteristics of defendant further support the original sentence.
Defendant's principal argument, as outlined in his appellate brief, is that the Court denied his right to trial by jury under the Sixth Amendment when it increased his sentence based on conduct for which he was acquitted. See Edwards, 424 F.3d at 1108. Defendant contends that such an enhancement violates the holding of Blakely v. Washington, 542 U.S. 296, 304 (2004), and presumably Booker, that a sentencing judge exceeds his authority when he "inflicts punishment that a jury's verdict alone does not allow because the jury has not found the essential facts upon which the sentence is based." See Appellant's Br. at 14 (citing Blakely, 542 U.S. at 304). The Court of Appeals, in remanding this case, identified this as a "potentially important question" that may require further consideration, and posed the question whether Watts, which sanctioned the use of acquitted conduct to increase a sentence against a double jeopardy challenge, has any relevance to the Sixth Amendment issue. Edwards, 424 F.2d at 1108-09 (noting that Booker stated that the Sixth Amendment issue was not presented in Watts).
Defendant fails to recognize the impact of an advisory -- rather than mandatory --Guidelines range on his Sixth Amendment argument. Booker consisted of two decisions -- the majority opinion by Justice Stevens adjudicating the merits of the Sixth Amendment issue, and the majority opinion by Justice Breyer setting forth the remedy consisting of invalidating the provisions of the Sentencing Reform Act that make the Guidelines mandatory. See Coles, 403 F.3d at 766 (citing United States v. Crosby, 397 F.3d 103, 107-10 (2d Cir. 2005)). As to the Sixth Amendment issue, the holding is clear: any fact necessary to support a sentence exceeding "the maximum authorized" by a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt. 543 U.S. at 244. But the remedial opinion in Booker changed this construct in a key regard by transforming the Guidelines from mandatory to advisory. The "maximum [sentence] authorized" by a jury verdict, after Booker, is not the top of the now-advisory Guidelines range for the convicted offense, but rather the statutory maximum for the offense under the United States Code -- which is often much higher than the Guidelines range. United States v. Duncan, 400 F.3d 1297, 1303 (11th Cir. 2005); Crosby, 397 F.3d at 109 n.6; see also United States v. Alston-Graves, 435 F.3d 331, 342-43 (D.C. Cir. 2006) (rejecting defendant's claim that her exposure to the statutory maximum as a result of retroactive application of Booker violated due process or ex post facto principles). Thus, as long as the sentencing judge imposes a sentence within the statutory range (i.e., one that does not exceed the statutory maximum), sentencing based on judge-found facts by a preponderance of the evidence does not violate the Sixth Amendment. The jury verdict itself supports a sentence up to that statutory maximum. Indeed, the Supreme Court in Booker explained the absence of any Sixth Amendment problem in an advisory sentencing regime:
If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. Indeed, everyone agrees that the constitutional issues presented by these cases would have been avoided entirely if Congress had omitted from the SRA the provisions that make the Guidelines binding on district judges . . . . For when a trial judge exercises ...