October 4, 2017
from the United States District Court for the Southern
District of Illinois. No. 3:15-cr-30016-SMY-l - Staci M.
BAUER, EASTERBROOK, and MANION, Circuit Judges.
Holton pleaded guilty to robbing a grocery store in southern
Illinois while carrying and using a firearm, and a jury found
him guilty of conspiring to commit Hobbs Act robbery (a
robbery affecting interstate commerce). In sentencing Holton
on the conspiracy count, the district judge imposed a prison
term roughly four years above the recom- mended Guidelines
sentence. The judge based the sentence on other robberies
that Holton committed, and that were relevant to his
conspiracy conviction, but for which he was not charged. He
contends that the district judge abused her discretion by
relying on uncharged conduct as the basis for imposing an
above-Guidelines sentence. Because the Supreme Court has held
that a district judge may consider evidence of conduct that
is relevant to the offense of conviction, even if that
conduct is uncharged, we affirm the judgment.
begin with some background. Holton lost his factory job and,
in need of money, agreed with two friends to rob drug
dealers. After the group successfully robbed several drug
dealers, it redirected its efforts to target grocery stores,
including a Shop 'n Save. Once Holton knocked off this
store, law enforcement agents tracked him down, and he
confessed during questioning to participating in robbing the
Shop 'n Save.
second superseding indictment, the government charged Holton
with seven counts: one count for conspiring to commit Hobbs
Act robbery in violation of 18 U.S.C. § 1951; three
counts of Hobbs Act robbery for hits on the Shop 'n Save
and two other stores, Q-Mart and Alps Grocery Store, in
violation of 18 U.S.C. § 1951; and three counts of using
a firearm during each of these grocery store robberies-all
crimes of violence-in violation of 18 U.S.C. §
924(c)(1)(A). He was not charged with robbing the drug
dealers. Holton pleaded guilty to two counts-Hobbs Act
robbery of the Shop 'n Save and the § 924(c) charge
of doing so while using a firearm-but he went to trial on the
other charges. A jury found him guilty of conspiracy but
acquitted him of the remaining charges.
parties did not contest the judge's calculations of the
Guidelines ranges for Holton's crimes. For the §
924(c) offense for which Holton had pleaded guilty, the judge
determined that it carried at least a seven-year sentence, to
be served consecutively to any other sentence imposed. As to
the convictions for conspiracy and robbing the Shop 'n
Save, grouped together for Guidelines purposes, see
U.S.S.G. § 3D1.2(a), the judge declared that the
advisory Guidelines range was 41-51 months based on
Holton's offense level of 20 and criminal history
category of III.
requested a prison term that fell "at the low end"
of the Guidelines range, but focused his sentencing argument
on why he should not receive a term above the Guidelines
range. He argued that it would violate his Fifth and Sixth
Amendment rights if the court decided that acquitted conduct
(the Q-Mart and Alps Grocery Store robberies) and uncharged
conduct (the drug-dealer robberies) justified him receiving
an above-Guidelines sentence. He contended that if the judge
considered this conduct relevant, she would repudiate the
jury's verdict and unconstitutionally punish him for
crimes for which he was not convicted.
government argued that, in considering the factors under 18
U.S.C. § 3553(a), the court should impose a sentence of
25 years' imprisonment because Holton was "one of
the most violent and dangerous criminals in our
society." The government focused on the expansive nature
and circumstances of the conspiracy. The government asserted
that a preponderance of the evidence showed that Holton had
robbed at gunpoint various drug dealers and the Q-Mart and
Alps Grocery Store before the conspiracy led him to commit
the Shop 'n Save robbery. The government also contended
that an above-Guidelines sentence was needed "to reflect
the danger of bodily harm Holton created" during the
robberies and to protect the public by
district judge imposed prison terms of 96 months for the
conspiracy offense and 51 months for the robbery conviction,
to be served concurrently and 84 months for the § 924(c)
offense, as well as five years' supervised release. The
judge acknowledged that she had the discretion to consider
acquitted conduct but declined to do so because, she said,
that would "totally denigrate  the Sixth Amendment and
would  be tantamount to jury nullification." But the
judge also thought a sentence within the Guidelines range for
the conspiracy offense would not appropriately reflect the
seriousness or nature of this crime. She explained that based
on the trial evidence, the conspiracy began with
"robbing drug dealers" and "evolved" into
robbing other businesses, including the Shop 'n Save.
Because the drug-dealer robberies were "connected in a
substantial way to the conspiracy charge and conviction,
" they were "significantly relevant" to the
"nature and circumstances of that conspiracy" as
"uncharged conduct which I have authority to
consider." The judge ultimately decided that the
drug-dealer robberies warranted a harsher sentence.
appeal, Holton argues that the district judge imposed a
substantively unreasonable sentence by relying on uncharged
conduct (the drug-dealer robberies) as the basis for imposing
an above-Guidelines sentence on the conspiracy count. He
first contends that the judge wrongly supplanted the
jury's fact-finding role and improperly used a
preponderance-of-the-evidence standard (instead of beyond a
reasonable doubt) when determining that he robbed drug
dealers. In support of this argument, he quotes Justice
Scalia, who, in a dissent from a denial of certiorari,
disapproved of judges finding facts at sentencing about
uncharged or acquitted conduct. According to Justice Scalia,
"any fact necessary to prevent a sentence from being
substantively unreasonable-thereby exposing the defendant to
the longer sentence-is an element that must be either
admitted by the defendant or found by the jury."
Jones v. United States, 135 S.Ct. 8, 8 (2014)
(Scalia, J., dissenting from the denial of certiorari). In
the alternative, Holton asserts that the district judge
wrongly assumed that "if Appellant was convicted on the
conspiracy count, it was proven beyond a reasonable doubt
that Appellant was involved with the uncharged conduct...
argument is availing. The Supreme Court has long authorized
judges to consider at sentencing criminal conduct that is
relevant to the offense of conviction, even if the defendant
was not was convicted for that conduct, "so long as that
conduct has been proved by a preponderance of the
evidence." United States v. Watts, 519 U.S.
148, 157 (1997). See also United States v.
Heckel, 570 F.3d 791, 797 (7th Cir. 2009). Exercising
this discretion does not violate a defendant's
constitutional rights because as the Court explained,
"sentencing enhancements do not punish a defendant for
crimes of which he was not convicted, but rather increase his
sentence because of the manner in which he committed the
crime of conviction." Watts, 519 U.S. at 154.
The dissent in Jones does not undermine
Watts as controlling authority.
case, the judge's sentencing of Holton for the conspiracy
conviction complied with Watts. Although she did not
state explicitly that Holton more likely than not robbed drug
dealers, she said enough to show that she reached this
conclusion and therefore did not err. When a judge does not
find explicitly that a defendant committed uncharged conduct
by a preponderance of the evidence, the sentence will be
upheld if "it is clear from the record" that the
judge determined that the defendant is responsible for it.
United States v. White,737 F.3d 1121, 1141 (7th
Cir. 2013) (internal quotation marks and citation omitted).
At sentencing, the judge explained that the drug-dealer
robberies "represent[ed] uncharged conduct which I have
authority to consider." The trial evidence, she
observed, showed that the robbery conspiracy had
"evolved" from robbing drug dealers to robbing the
Shop 'n Save. The earlier robberies therefore were
"significantly relevant" to her consideration of
"the nature and circumstances of that conspiracy
offense." These statements also rebut Holton's
alternative argument that the judge incorrectly assumed that
the conspiracy conviction meant that the ...