USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-1541

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

HENRY LOMBARD, JR.,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Morton A. Brody, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Cyr and Boudin, Circuit Judges.

______________

____________________

Jane Elizabeth Lee with

___________________

whom Ronald Bourget,

______________

by Appointment

the Court, and Bourget and Bourget, P.A. were on briefs for appella
_________________________
F. Mark Terison, Assistant
_______________
P. McCloskey, United
_____________

United States Attorney,

States Attorney,

was on

States.

____________________

with whom

brief for

the Uni

December 4, 1996
____________________

BOUDIN, Circuit Judge.

______________

This court earlier

upheld the

convictions of defendant Henry Lombard; but the court vacated

the life sentence imposed

for

resentencing,

on one of the counts

holding

authority to depart

that

district

court

had

United States
_____________

v. Lombard, 72
_______

F.3d 170, 187 (1st Cir. 1995) ("Lombard I").

__________

On remand, the

district

appeal

downward.

the

and remanded

court reimposed

raises

the original

constitutional

claim

sentence.

that

This new

Lombard

made

earlier but was not decided on the initial appeal.

I.

The facts are set forth at

length in Lombard I, 72 F.3d

_________

at 172-76, and only the briefest summary is needed to set the

stage.

Lombard and

his half-brother, Hubert

Hartley, were

tried in Maine state court for murdering two acquaintances as

they slept

in Hartley's Maine cabin

in

Despite something

1990.

on Thanksgiving morning

close to

from Hartley's girlfriend, both

eyewitness testimony

men were acquitted by juries

in separate trials in 1992.

A federal

grand jury then indicted

for different crimes

and Hartley

the

having

firearm in violation

U.S.C.

18

U.S.C.

relating to the same episode.

were charged with

conspiracy

Lombard and Hartley

Lombard

conspiracy, 18 U.S.C.

multiple

objectives: to

of the felon in

922(g), to travel interstate

371,

possess

possession statute, 18

to avoid prosecution,

1073, and to remove evidence to prevent seizure,

-2-2-

18 U.S.C.

2232(a).

Lombard

was also charged substantively

under the felon in possession statute and Hartley with aiding

and abetting this crime.

The

charges

defendants

in

1993.

were

tried

Much

of

commission

of the

same

acquitted,

the evidence

together

the

evidence

killings for

being

which

on

the

federal

concerned

the

they had

been

relevant inter alia to

___________

the

flight and removal of evidence charges.

Hartley pled guilty

at the close of the government's case.

on both of the

Lombard was convicted

counts directed against him:

felon-in-possession.

conspiracy and

Lombard's convictions were sustained in

Lombard I and are not now before us.

_________

At

was

sentencing, Lombard--without regard to the murders--

subject

because his

career

statutory sentence

prior convictions

criminal statute.

Sentencing

murders, the

roughly

to a

Guidelines,

guideline

18

However,

15 years

to life

brought him within

the armed

U.S.C.

Under the

again

924(e).

without

sentencing

between 20 and 30 years.

5, pt. A.1

of

reference

range

U.S.S.G.

Lombard had so

would

to

have

the

been

4B1.4; id. ch.

___

many criminal

history

points

over

the

number

needed for

the

highest

criminal

____________________

1Although the sentencing took

the district court applied
guidelines

in order

United States
_____________
1993).

v.

to

place in September

the November 1990 edition

avoid any

Prezioso, 989
________

ex post
__ ____

F.2d

-3-3-

of the

facto problems.
_____

52, 53-54

All references are to that edition.

1994,

(1st

Cir.

history

imposed.

category that

U.S.S.G.

an upward

departure might

have been

4A1.3.

However, the ordinary guideline computation went by

the

boards. The felon in possession guideline provides that where

the firearm is

base

used in connection with

another offense, the

level should be that of the "object" offense.

2K2.1(c)(2),

murder requires

Because the

evidence that

2X1.1.

The

base

a life sentence.

district court found

level for

Id.
___

U.S.S.G.

premeditated

2A1.1; ch. 5, pt. A.

by a preponderance

Lombard had participated

in the

of the

premeditated

murders, the court imposed a life sentence on Lombard.

On

appeal in Lombard I, this court took note of several

_________

unusual circumstances,

including the impact on

of the uncharged murders,

Lombard's prior acquittal of those

murders, the qualitative

difference between

offense

and

of

conviction,

imprisonment.

Expressing

concerns, the court then

the

district

downward,

court

the extreme

but not

murder and

penalty

of

life

held that these special facts

5K2.0,

the

resolving constitutional

discretionary

U.S.S.G.

the sentence

authority

and remanded

district court to consider such a departure.

to

to

gave

depart

permit

the

72 F.3d at 184-

85.

At

fully

the resentencing,

understood

authority

to

(and

depart

the district

had

downward.

court said

understood

But

the

that it

previously)

court

its

remained

-4-4-

convinced that "the appropriate sentence in

sentence that

was imposed

this case is the

initially," and it

life sentence.

Lombard now appeals again,

single question

presented

is

violated his "due process right

whether

the

reimposed the

stating that the

district

court

to proof beyond a reasonable

doubt" as to the murders when it reimposed the life sentence.

II.

At the threshold,

our

the government

surprise, that "appellate

Its stated reason

is that

asserts, somewhat

to

jurisdiction does not exist."

a discretionary

decision by

the

sentencing judge declining to depart from the guideline range

is not subject

to appeal.

While the

premise is

sound, United States

_____________

v. Romolo,
______

1991),

Lombard

explicitly declined

refusal

to

constitutional

has

depart;

rather,

challenge

to

937 F.2d 20,

he

the

to

wants

use

of

generally

22 (1st

Cir.

challenge

the

to

the

renew

murders

his

to

establish the guideline range for his sentence.

There is

nothing outre about the

distinction.

Lombard

is challenging

his sentence, and the

depended

on several

criminal

statute, various

guidelines

including

participated

in

decision

the

by

the

determinants:

sentence--as many do--

here,

decisions

the

finding

murders,

and

district

judge

-5-5-

the armed

made

in applying

that

Lombard

lastly a

not

to

career

the

had

discretionary

depart from

the

guideline

range.

That this

last decision

is unreviewable

hardly precludes review of other parts of the equation.

A challenge

to the constitutionality

of the guidelines

as applied is certainly a permitted subject for an appeal, 18

U.S.C.

novo.
____

3742(a), and

United States
_____________

presents an issue that we

consider de
__

v. Carson, 988 F.2d 80, 82

______

(9th Cir.),

cert. denied, 510 U.S. 847 (1993).

_____ ______

law-of-the-case

jurisdictional

bar

one, if

constitutional claims in

to

this

the

Of course, there might be

appeal,

court had

Lombard I.
_________

although

not

fully rejected

But Lombard I
_________

the

plainly

said

that constitutional

mooted by the remand.

concerns

did exist
___

but might

72 F.3d at 184-85.

For reasons we will address in due course, Lombard

not place much weight on the

strike non-lawyers

given

the

he

troubling: that he

on a finding

the

district

court

has been

that he committed

two murders of which he was earlier acquitted.

that

does

element in this case that would

as the most

a life sentence based

argues

be

erred

by

Instead,

using

"preponderance of the evidence" standard to determine that he

had in fact

committed the

this finding to sentence

prior murders and

then by

using

Lombard as if he had

committed the

federal

is

murders.

The

framework

Departures aside,

for

sentencing

the guidelines require

familiar.

the district court

to calculate

the

guideline

range based

not

only

on

the

-6-6-

conduct comprising

the federal crime of

conviction but also

on "relevant" albeit "uncharged" conduct--here, the murders--

that

the

sentencing

court

finds

actually

occurred

in

connection with that crime.

U.S.S.G.

1B1.3; 2K2.1(c)(2).

And ordinarily the facts at sentencing need be proved only by

a preponderance

of the evidence.

McMillan v. Pennsylvania,
________
____________

477 U.S. 79, 91 (1986); United States v. Carrozza, 4 F.3d 70,

_____________
________

80-81 (1st Cir. 1993), cert. denied, 114 S. Ct. 1644 (1994).
_____ ______

The use

the

of uncharged

longstanding

view

relevant information

broad range

be sentenced.

(1972);

conduct at sentencing

that

the judge

that helps to decide

usually fixed by statute,

United States
_____________

18 U.S.C.

should

3577.

employ

all

where, within the

this defendant should

____

v. Tucker, 404
______

As

stems from

for the

U.S. 443,

lower standard

446

of

proof, courts sometimes say that "guilt" is the crucial event

that

alone requires

proof

beyond a

reasonable doubt,

and

sometimes

that more

sentencing.

In

face

of

historical

frontal attack

on

difficult, and Lombard does not

"the tail that wags

at 88,

constraints would

bog down

See, e.g., McMillan, 477 U.S. at 92 n.8.

___ ____ ________

the

precedent,

procedural

practice

these

and

practices would

attempt it.

be

Rather, quoting

the dog" metaphor in McMillan,

________

Lombard says that

judicial

due process requires the

477 U.S.

use of a

"beyond a reasonable doubt" standard in cases where, as here,

the

finding that the uncharged

-7-7-

crime occurred has so severe

an effect

on the sentence.

jury's prior acquittal,

He adds that

in view of

there must be a reasonable

the

doubt in

this case.

This

is not an argument that would likely have had much

success prior to

432 U.S.

the guidelines, cf. Patterson

___ _________

197, 214 (1977),

basis for reconsidering

conduct was

merely a

but the

the issue.

v. New York,
________

guidelines provide

In the past,

background fact, like

some

uncharged

the defendant's

criminal record or his habit of kicking his dog, that a judge

might

consider

in

making

the

highly

discretionary,

largely ad hoc, decision as to sentence.

and

The guidelines have

altered matters in at least one significant respect.

We

now

have a

regime

that, aiming

treatment, requires the sentencing

________

to

provide equal

judge to make findings as

to relevant uncharged conduct and absent a departure requires

________

the

judge to

range.

sentence on

See 18 U.S.C.
___

5C1.1(a).

Thus

that basis

within a

3553(b); U.S.S.G.

finding

of

an

very narrow

1B1.1, 1B1.2,

uncharged

crime

at

sentencing, and the compulsory fixing of the sentence on that

basis,

makes the

sentencing itself

like a

conviction for that uncharged

now look

somewhat more

crime--but without the

benefit of the criminal standard of proof beyond a reasonable

doubt or, for

that matter,

an indictment or

jury trial

on

that crime.

-8-8-

Most courts have been

less, or not at all,

troubled by

use of the uncharged

on the sentence

offense of

both.

or is

limited effect

qualitatively the same

crime as

conviction (such as other related

courts

McMillan,
________

drug sales) or

become

477

U.S.

As the impact and qualitative difference

more

at

concerned.

88,

to

the

The

risk

reference

of

(sentencing) "wagging the dog" (the substantive

often

the

See, e.g., United States v. Wright, 873 F.2d 437, 441___ ____ _____________
______

42 (1st Cir. 1989).

grow,

conduct that has only a

been

taken to

suggest that

the

in

"tail"

offense) has

the Supreme

Court might

endorse some outer limit.2

The

guidelines'

main, intended

substantive

to impose

those that prevailed in the

provisions were,

sentencing results very

pre-guidelines era.

in

the

much like

See Stephen

___

Breyer,

The Federal Sentencing Guidelines

and the Key
____________________________________________________

Compromises Upon Which They Rest,

_________________________________

(1988).

The pertinent change, as we

guidelines

are

compulsory.

element has been largely

I,
_

17 Hofstra L.

which restored

discretion

to the

Rev. 1,

have noted, is that the

But for

Lombard

the

removed by our decision

district court

to decide whether and

latter

in Lombard
_______

its pre-guideline

how far to

give weight to

the murders.

____________________

2The reference was in fact

different than our

directed to a problem rather

own, namely,

the alleged

danger that

state legislature

might "tailor[]" its substantive

shift

sentencing

into

the

phase

traditionally part of the crime.

Id.

an

element

crime to
that

was

___

-9-9-

True, the district court may (and here did) still choose

to

give

sentence

weight to

within

preponderance of

always

permitted

the

the

uncharged

statutory

evidence that

by

offenses

range

if

in fixing

it

finds

they occurred; but

longstanding

practice

and

the

by

this was

explicit

Supreme

476,

Court authority.

485 (1993);

(1949).

Williams v.
________

There is no

altered its

Wisconsin
_________

New York,
________

issue.

position in upholding

If

508 U.S.

337 U.S.

indication that the

position on this

reinforced that

v. Mitchell,
________

241, 246

Supreme Court has

anything, McMillan
________

a mandatory

sentence

enhancement based on uncharged conduct.

Some may think that even the status quo ante

_______________

with due

process and that uncharged conduct

is at odds

should never be

considered without criminal-trial safeguards.

But the choice

then

the sentencing

may be,

into a

in substance,

new criminal

trial or

between turning

ignoring provable facts

that

most people think relevant in deciding who

deserves more and

who

at 9-12.

less punishment.

See Breyer, supra,

If the

___

_____

Constitution is now taken to forbid "real offense" sentencing

unless criminal-trial

procedures

are applied,

that

ruling

impose a

higher

must come from a higher court.

The

standard

Circuit.

only

of

circuit court

proof

in

squarely

certain

to

sentencings

is

the

Third

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

_____________
________

(3d Cir. 1990), the

court held that an upward

-10-10-

departure due
_________

to uncharged conduct should be based

on clear and convincing

evidence where

extraordinary

the

finding had

an

impact--

there, "a twelve-fold, 330-month departure from the median of

an applicable sentencing range."

was premised on a

process concerns

not

followed.

Id. at 1102.
___

This ruling

reading of the guidelines informed

and has

by due

been much discussed

but generally

See United States v. Masters,

___ ______________
_______

978 F.2d 281,

286 (7th Cir. 1992).

Lombard does

case.

not urge this halfway house in the present

In truth, most judges are unlikely to see a great gulf

between

a preponderance and "clear and convincing" evidence.

Based upon the sentencing

in this case, the

Lombard, that

district court would probably find,

the latter standard had

contrast, the "beyond a

regarded

transcripts and the trial evidence

as making

In

all

a substantial

By

difference and,

for this

very cautious in extending

it

Cf. Masters, 978 F.2d at 286-87.

___ _______

events,

given

conclude that the Constitution

Supreme

Court

precedents,

we

does not require a heightened

proof standard in a case such as ours.

matter:

been amply met.

reasonable doubt" standard is widely

very reason, courts have been

to new realms.

as to

Policy is a different

on this score, one can argue about imposing greater

safeguards for sentencing decisions that severely

affect the

defendant.

likely

But

if you

asked trial

judges, most

would be

to say that what they mainly needed was more latitude

-11-11-

and fewer constraints.

2035,

Cf. Koon v. United States, 116 S. Ct.

___ ____
_____________

2046-47 (1996); United States v. Rivera, 994 F.2d 942,

_____________
______

951-52 (1st Cir. 1993).

III.

Finally, we think it

matter

essential to say a word

that troubled the court in Lombard I but that Lombard

_________

has chosen not

to stress,

the use of acquitted

at least in

his legal

argument:

conduct to enlarge his sentence.

certainly

accorded with

form they

draw no distinction between

is

about the

the guidelines.

In

This

their present

relevant conduct that

uncharged and relevant conduct of which the defendant has

actually been

given the

acquitted.

weight assigned

1B1.3; United States v.

_____________

1989).

Absent a

by

departure, all

the guidelines.

Mocciola, 891 F.2d 13, 16

________

The question is why.

must be

U.S.S.G.

(1st Cir.

The explanation for including acquitted conduct

usual charm of lawyer's logic.

has the

It is said that there

is no

technical inconsistency between a prior acquittal and the use

of the very same

the

sentence,

defendant

doubt";

acquitted conduct at sentencing

because

had not

the

the

been proved

sentencing

merely

found

guilty "beyond

judge,

preponderance of the evidence

occur.

jury

by

to enlarge

contrast,

that

the

a reasonable

finds

by

that the acquitted conduct did

See, e.g., United States v. Isom, 886 F.2d 736, 738 &
___ ____ _____________
____

n.3 (4th Cir. 1989).

-12-12-

This syllogism has been expressly adopted by the Supreme

Court

342,

in another context, Dowling v. United States, 493 U.S.

_______
_____________

349 (1990),

and

is regularly

courts, including

ours, in

e.g., Rossetti v.
____ ________

Curran, 80
______

Presumably, it is because

followed

by the

lower

sentencing and elsewhere.

See,
___

F.3d 1, 5-6

(1st Cir.

1996).

of these precedents, emphasized in

Lombard I, that Lombard has

__________

not challenged the syllogism or

stressed

the fact that the uncharged conduct in this case is

also acquitted conduct.

As a matter of constitutional

the syllogism is "rational"

enough (as well as

law,

binding upon

us).

Yet,

many

judges

manifestly unwise, as

a matter of

use of acquitted conduct

See
___

United States v.
______________

1995).

A lawyer can

as a matter of public

think

that

the

guidelines

are

policy, in requiring

the

in calculating the guideline range.

Lanoue, 71
______

F.3d

966, 984

(1st Cir.

explain the distinction logically but,

perception and acceptance, the

can often invite disrespect for the sentencing process.

result

This

threat is aggravated insofar as the guidelines compel--rather

than merely permit--the practice.

Certainly

situations exist

where the

sentencing court

might persuasively explain the use of acquitted conduct.

example, a

defendant might be acquitted

evidence suppressed

or the

by a Fourth

defendant might later

because of reliable

Amendment exclusionary rule

be shown

-13-13-

For

to be guilty

by co-

conspirator

earlier

testimony

trial.

acquitted conduct

the

But

not

the

available

present

regime

be taken into account

court's ability

to disregard

it.

constitutional does not make it wise.

Affirmed.
_________

at the

time

of

commands

the

that

and severely limits

That a

practice is

-14-14-