United States v. Retic

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0110P (6th Cir.) File Name: 00a0110p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  UNITED STATES OF AMERICA,  Plaintiff-Appellee,   Nos. 98-5552/5554 v.  > COURTNEY BUTLER (98-5552)   Defendants-Appellants.  and JULIUS RETIC (98-5554),

 1 Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 97-20030—Julia S. Gibbons, Chief District Judge. Argued and Submitted: June 18, 1999 Decided and Filed: March 29, 2000 Before: JONES, COLE, and CLAY, Circuit Judges. _________________ COUNSEL ARGUED: Stephen R. Leffler, Memphis, Tennessee, for Appellant. Tony R. Arvin, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee. ON BRIEF: Randall P. Salky, THE LAW OFFICE OF RANDALL SALKY, Memphis, Tennessee, Stephen R. Leffler, Memphis, Tennessee, for Appellants. Tony R. Arvin,

2 United States v. Butler, et al. Nos. 98-5552/5554 Nos. 98-5552/5554 United States v. Butler, et al. 23

ASSISTANT UNITED STATES ATTORNEY, Memphis, beyond the initial directive, we believe the original twenty- Tennessee, for Appellee. one year old age limit is sufficiently clear to overcome an argument from silence. CLAY, J., announced the judgment of the court and delivered an opinion, in which JONES and COLE, JJ., Our hesitance to infer too much from mere “silence” is concurred except as to Part II.B.1. JONES, J. (pp. 19-23), driven by our concern that doing so would lead courts wholly delivered a separate opinion, in which COLE, J. concurred, to abandon their role of assessing whether enacted guidelines which constitutes the opinion of the court on the issue comport with Congressional intent. Indeed, Congress “can addressed in Part II.B.1. revoke or amend any or all the Guidelines as it sees fit either within the 180-day waiting period . . . or at any time.” _________________ Mistretta, 488 U.S. at 393-94. All proposed guidelines are thus subject to review and potential rejection by Congress, OPINION and all enacted guidelines have theoretically survived that _________________ potential rejection. Heeding “silence” would thus dictate that all enacted guidelines inherently satisfied Congressional CLAY, Circuit Judge. Defendant Courtney Butler appeals intent, and would eliminate our vital role—described in from his judgment of conviction and sentence to 235 months LaBonte and other cases—of squaring the enacted guideline of imprisonment for his commission of armed bank robbery with the original statutory language. See 520 U.S. at 757. in violation of 18 U.S.C. § 2113 and 18 U.S.C. § 2. Indeed, an Eighth Circuit panel has already taken this Defendant Julius Retic appeals from his judgment of dramatic step, concluding (erroneously, we believe) that conviction and sentence to 120 months of imprisonment for “[g]iven Congress’s supervisory role, the Sentencing his commission of armed bank robbery in violation of 18 Commission’s formulation of the Guidelines is not subject to U.S.C. § 2113 and 18 U.S.C. § 2, and for using and carrying judicial review unless the Commission oversteps a firearm during and in relation to a crime in violation of 18 constitutional bounds.” United States v. Vincent, 167 F.3d U.S.C. § 924(c). For the reasons below, we AFFIRM the 428, 431 (8th Cir. 1999). To the contrary, we believe judgment of the district court as to Butler, but VACATE appellate courts must continue to “hold[] the Commission Retic’s sentence and REMAND his case for resentencing. accountable as an agency of limited powers.” Daniel J. Freed, Federal Sentencing in the Wake of the Guidelines: I. Unacceptable Limits on the Discretion of Sentencers, 101 On February 19, 1997, a federal grand jury sitting in the Yale L.J. 1681, 1748 (1992). Western District of Tennessee returned an indictment We conclude that U.S.S.G. § 3B1.4 is in conflict with a charging Courtney Butler and Julius Retic, along with three clear Congressional directive. In addition to the reasons other individuals, with twelve counts of criminal activity. articulated by Judge Clay in II.B.2, we believe that Retic’s The relevant facts surrounding their separate offenses and sentence must be vacated and the case remanded for their respective sentencings are as follows. imposition of a new sentence that is in accordance with the directive’s age limitation.

22 United States v. Butler, et al. Nos. 98-5552/5554 Nos. 98-5552/5554 United States v. Butler, et al. 3

behavior,1 taking the adult-defendant’s and the accomplice- A. BUTLER minor’s relative ages into consideration is hardly a novel concept. Cf. MODEL PENAL CODE § 213.3(1)(a) (1962); CAL. On May 29, 1996, Butler and Julian Shelton robbed the PENAL CODE 261.5(d) (1999) (“Any person 21 years of age or Volunteer Bank in Henning, Tennessee. During the robbery, older who engages in an act of unlawful sexual intercourse Butler wore a wig covered with a hat and Shelton wore safety with a minor under 16 years of age is guilty of either a glasses and a hat, while Shelton was armed with a hand gun. misdemeanor or a felony . . .”). This is precisely the bright- Together they stole a total of $12,269 from the bank. When line role which the age limit played in the directive at issue. the federal grand jury handed down its twelve-count We therefore find that the limit was a core aspect of that indictment, it charged Butler in Count 5 with aiding and directive, and its wholesale elimination comprised much more abetting armed bank robbery in violation of 18 U.S.C. § 2113 than a “slightly broader” application. and 18 U.S.C. § 2 in connection with his participation in this robbery at Volunteer Bank. The indictment also charged Finally, we respectfully disagree with our distinguished Butler in Counts 1 through 4, Counts 6 through 8, and Counts colleague’s utilization of a “Congressional silence” theory to 11 and 12 with numerous other bank robberies and the use of conclude that Congress indeed approved of the Commission’s firearms during those offenses. On March 5, 1998, Butler amendment. He points to the six-month review period in pleaded guilty to Count 5 of the indictment pursuant to a plea which Congress can accept or reject Commission guidelines, agreement in which the government dismissed the remaining and to the fact that “Congress ultimately failed to express charges against him. disagreement with expansion of the enhancement to” include defendants under twenty one, to conclude that the amendment At sentencing on April 3, 1998, the district court was “an appropriate reflection of [Congressional] policy.” determined that Butler had three convictions that qualified Ante at __. See also United States v. Munoz-Cerna, 47 F.3d him for career offender status under § 4B1.1 of the 207, 212 (7th Cir. 1995) (reading Congressional intent by Sentencing Guidelines. Specifically, the district court took noting that “Congress had the opportunity to accept, reject, or note of a 1990 conviction for conspiracy to sell cocaine, a modify the guideline provision” yet “decided to allow the 1994 conviction for delivery of under a half-gram of cocaine, Commission’s handiwork to take effect”). For several and a 1994 conviction for aggravated burglary. Additionally, reasons, we are not persuaded by this analysis. the district court denied Butler’s request for a downward departure. The district court enhanced Butler’s criminal As the Supreme Court stated in another Sentencing history category accordingly, and sentenced Butler to 235 Guideline case, “[n]ot every silence is pregnant.” Burns v. months of imprisonment, 3 years of supervised release, and United States, 501 U.S. 129, 136 (1991) (citation omitted). payment of restitution in the amount of $6,134.50, or one-half The Court in Burns counseled that silence should not be the loss to the bank. Butler filed a timely notice of appeal to “credited when it is contrary to all other textual and this Court on April 14, 1998. contextual evidence of congressional intent.” Id. Although there is admittedly little evidence of that legislative intent B. RETIC On July 19, 1996, at the age of twenty, Retic robbed the 1 Munford Union Bank in Atoka, Tennessee along with Curtis Indeed, Congress asked the Commission to take into account the Harden, who was seventeen years of age at the time. Butler “possible relevance of the proximity in age between the offender and the minor(s) involved in the offense.” Pub. L. No. 103-322, § 140008, 108 was waiting nearby in a getaway vehicle. During the robbery, Stat. 2033 (1994). which took place in the middle of the afternoon, Retic put a

4 United States v. Butler, et al. Nos. 98-5552/5554 Nos. 98-5552/5554 United States v. Butler, et al. 21

handgun to the head of a customer service representative, Commission to “promulgate guidelines or amend existing instructed her not to push the alarm button, and told her that guidelines to provide that a defendant 21 years of age or older if she moved, he would “cap” her. Harden repeatedly asked who has been convicted of an offense shall receive an Retic not to shoot the representative, and Retic complied. appropriate sentence enhancement if the defendant involved Harden jumped the teller counter and removed money. a minor in the commission of the offense.” Pub. L. No. 103- During the robbery, Retic saw a bank teller motion to her 322, § 140008, 108 Stat. 2033 (1994) (emphasis added). husband and children, who were about to enter the bank to However, in issuing § 3B1.4, the Commission simply pick her up, not to enter. Retic ordered the husband and removed the age restriction. See U.S.S.G. § 3B1.4. Looking children into the bank. As Retic and Harden were leaving the at the face of both the directive and the guideline, we are not bank, they encountered another customer. Retic grabbed him, convinced that the Commission’s interpretation of the age pointed the gun at him and ordered him into the bank. restriction is “sufficiently reasonable.” To the contrary, the Ultimately, Retic and Harden left the bank with $16,330. guideline’s “interpretation” was a direct overruling of an Later that evening, local police picked up Harden walking explicit Congressional declaration because it eliminated the along the highway. Harden later made an admission age limit, lock, stock and barrel. identifying Butler as the individual who planned the robbery and Retic as the individual who accompanied him into the The Government’s feeble response to this facial conflict is bank. that the Commission’s interpretation simply “implemented Congress’s directive in a slightly broader fashion.” Gov’t Br. In connection with this incident, the indictment charged at 9. Its sole evidence is the Commission’s own statement Retic in Count 11 with armed bank robbery in violation of 18 that it was implementing the directive in “slightly broader U.S.C. § 2113 and 18 U.S.C. § 2, and in Count 12 with using form.” U.S. Sentencing Commission Guideline Manual, and carrying a firearm during and in relation to that bank Appendix C, Amendment 527 (1997). This argument is robbery in violation of 18 U.S.C. § 924(c). On July 16, 1997, unpersuasive for two reasons. First, reflexively relying on the Retic pleaded guilty to Count 11, and on November 14, 1997, commission’s characterization of its own amendment would he pleaded guilty to Count 12. At a sentencing hearing held abandon our judicial role in “determining whether [the] on April 3, 1998, Retic received a reduction in his sentence [a]mendment accurately reflects Congress’ intent.” LaBonte, pursuant to § 5K1.1 of the Sentencing Guidelines for 520 U.S. at 757. More importantly, both the Commission’s acceptance of responsibility. However, the district court characterization and the Government’s contention are enhanced Retic’s offense level by two levels pursuant to specious. Eliminating the minimum age requirement is far § 3B1.4 of the Guidelines on the grounds that he had more dramatic than introducing a “slightly broader form” of encouraged a minor, Harden, to participate in the crime. The the original directive. As this case demonstrates, without the district court ultimately sentenced Retic to sixty months of age limit that Congress originally authorized, the guideline imprisonment for Count 11 and sixty months of imprisonment introduces a whole host of situations where defendants under for Count 12, to be served consecutively. Retic filed a timely age twenty one can receive enhancements for engaging in notice of appeal to this Court on April 15, 1998. criminal activities with youths of similar age, or perhaps even older than the defendants themselves. To resolve situations II. such as this, which do not present the underlying concern that the existence of an age differential allows an older, adult party Before this Court, both Butler and Retic challenge only to influence a minor to engage in wrongful or dangerous their sentences, and not their underlying convictions. We

20 United States v. Butler, et al. Nos. 98-5552/5554 Nos. 98-5552/5554 United States v. Butler, et al. 5

is consistent with the rationale for why we generally do not review the district court’s legal conclusions regarding the entertain issues not raised below—that it is “essential . . . that Sentencing Guidelines de novo. See United States v. Garner, parties . . . have the opportunity to offer all the evidence they 940 F.2d 172, 174 (6th Cir. 1991). Moreover, we review a believe relevant to the issues.” Singleton v. Wulff, 428 U.S. district court’s factual findings in applying the Sentencing 106, 120 (1976) (internal quotations and citation omitted). Guidelines for clear error. See United States v. Latouf, 132 When a new argument presents a question of pure law, neither F.3d 320, 331 (6th Cir. 1997). party has been denied the opportunity to offer relevant evidence in making its case. To the contrary, as has occurred A. in the case sub judice, both sides have had a full “opportunity to present whatever legal arguments [they] may have” on this Butler argues that the district court erred by sentencing him particular issue. Id. as a career offender pursuant to the Sentencing Guidelines. The Guidelines provide that a defendant is a career offender Not only is Retic’s argument properly before this Court, it if (1) he was at least eighteen when he committed the offense is persuasive. Although Congress has delegated “‘significant of conviction; (2) the offense of conviction is a felony that is discretion in formulating guidelines’” to the Commission, the a crime of violence or a controlled substance offense; and (3) Commission still “must bow to the specific directives of the defendant has at least two prior felony convictions of Congress.” United States v. LaBonte, 520 U.S. 751, 757 crimes of violence or controlled substance offenses. See (1997) (quoting Mistretta v. United States, 488 U.S. 361, 377 USSG § 4B1.1. The Guidelines further provide that a (1989)). In ascertaining whether the Commission has “controlled substance offense” includes any felony offense, properly interpreted a directive, courts therefore “defer to [the state or federal, that involves the distribution of a controlled Commission’s] interpretation as long as it is ‘sufficiently substance. See USSG § 4B1.2(b). Butler argues that of the reasonable’ in light of the Congressional directive.” United three convictions the district court cited in support of its States v. Williams, 53 F.3d 769, 772 (6th Cir. 1995) (quoting § 4B1.1 enhancement, the two “controlled substance United States v. Kennedy, 32 F.3d 876, 889 (4th Cir. 1994)); offenses” were actually simple possession offenses and the see also United States v. Nottingham, 898 F.2d 390, 393 (3d third, a conviction for aggravated burglary, was not a crime of Cir. 1990) (“To the extent that the enabling legislation violence. Therefore, Butler argues, his prior convictions did contains specific direction, the guidelines must comport with not qualify him as a career offender. Butler’s arguments are that direction.”) When the Commission’s interpretation, as in vain. embodied in a guideline, does not square with clear Congressional intent, courts will not apply that guideline. See In determining whether a particular offense constitutes a United States v. Gaines, 122 F.3d 324, 330 (6th Cir. 1997) “controlled substance offense” or a “crime of violence” under (“When Congress and the Sentencing Commission disagree the Guidelines, this Court employs a categorical approach on matters of sentencing policy, Congress trumps.”); United “limited to an examination of the fact of conviction and the States v. Branham, 97 F.3d 835 (6th Cir. 1996) (holding that statutory definition of the predicate offense.” United States the Commission contravened a Congressional directive). v. Arnold, 58 F.3d 1117, 1121 (6th Cir. 1995). Under this approach, “‘it is not only impermissible, but pointless, for the We can not conceive of a clearer example than that court to look through to the defendant’s actual criminal presented here where the Commission has so flatly ignored a conduct. . . .’” Id. (quoting United States v. John, 936 F.2d clear Congressional directive. The Violent Crime Control and 764, 767 (3d Cir. 1991)). Indeed, the categorical approach Law Enforcement Act of 1994 directed the Sentencing eliminates “‘the practical difficulties and potential unfairness

6 United States v. Butler, et al. Nos. 98-5552/5554 Nos. 98-5552/5554 United States v. Butler, et al. 19

of a factual approach’ to each prior conviction.” See United ______________________ States v. Kaplansky, 42 F.3d 320, 322 (6th Cir. 1994) (quoting Taylor v. United States, 495 U.S. 575, 600-02 CONCURRENCE (1990)). ______________________ Significantly, Butler does not contest the fact of his conviction for the three cited offenses, and does not contest NATHANIEL R. JONES, Circuit Judge, concurring, with that the statutes under which he was convicted are statutes COLE, J., joining. that criminalize “controlled substance offenses” and “crimes of violence.” Rather, he argues that this Court should eschew We concur in the judgment announced by Judge Clay, and the categorical approach described above by looking at the with most of Judge Clay’s well-reasoned opinion. substantive facts behind each of those offenses. Because it is Nevertheless, we believe defendant Retic, in addition to improper for a court to go beyond the fact of conviction and prevailing for the reasons stated in II.B.2, correctly asserts the definitions of the statutes under which Butler was that the United States Sentencing Commission failed to convicted to determine whether he qualified as a career comport with a clear Congressional directive when it offender, the district court did not err in enhancing Butler’s eliminated the requirement that the defendant be at least sentence under § 4B1.1 of the Guidelines. twenty-one years old to be subject to enhancement under U.S.S.G. §3B1.4. We therefore respectfully disagree with Finally, although Butler argues that the district court should regard to the analysis in II.B.1. have departed downwards in sentencing him, this claim is unreviewable. The Sentencing Reform Act of 1984 (“Act”) As a preliminary matter, we are untroubled by the fact that provides for limited appellate review of sentences for federal Retic did not make this particular legal argument below. offenses. See Williams v. United States, 503 U.S. 193, 199 Before the district court, Retic clearly challenged the (1992). Under the Act, a defendant may only appeal his application of U.S.S.G. § 3B1.4 to enhance his sentence, J.A. sentence if it (1) was imposed in violation of law; (2) reflects at 180-81; he therefore complied with this Court’s an incorrect application of the Sentencing Guidelines; (3) is requirement that a defendant object at the district court in greater than the sentence specified in the applicable order to avoid waiving that objection on appeal. See United Guidelines range; or (4) was imposed for an offense for which States v. Jarman, 144 F.3d 912, 915 (6th Cir. 1998). The there is no sentencing guideline and is plainly unreasonable. additional argument he now makes in support of that See 18 U.S.C. § 3742(a) (1998). Generally, under § 3742, a objection is one of pure law. “The question is simply the defendant may appeal if the district court departs upward proper interpretation and application of the [relevant] statute,” from the Guideline range, and the government may appeal if requiring “no new or amplified factual determination.” the district court departs downwards. See Williams, 503 U.S. Frederick Steel Co. v. Commissioner of Internal Revenue, 375 at 199. We have consistently held that the decision by a F.2d 351, 355 (6th Cir. 1967) (internal quotations and citation district court not to depart downwards from the Guidelines is omitted). As such, the fact that the argument was not raised not reviewable on appeal unless the record reflects that the below is immaterial. See id.; see also Hutton v. United States, district court was not aware of or did not understand its 501 F.2d 1055, 1062-63 & 1063 n.15 (6th Cir. 1974) discretion to make such a departure. See United States v. (recognizing that Frederick Steel Co. articulated an exception Landers, 39 F.3d 643, 649 (6th Cir. 1994). to the general rule that an appellate court cannot entertain an argument based on a theory not raised below). This exception

18 United States v. Butler, et al. Nos. 98-5552/5554 Nos. 98-5552/5554 United States v. Butler, et al. 7

sentence of Retic and REMAND his case to the district court Although Butler contends that the district court should have for resentencing. granted him a downward departure on the grounds that he had a diminished capacity due to alcohol and drug abuse and because he had a traumatic childhood, he does not argue – likely because he cannot – that the district court did not understand its ability to make such a departure. Indeed, the district court stated: There is really not anything factually about this case that would warrant a downward departure. The defendant’s family circumstances and his background are not unusual. They are relatively typical of people engaged in criminal conduct. There is no indication that his drug or alcohol use in any way constituted diminished capacity as contended in the objections. There is just nothing in this case that would amount to either an appropriate legal basis for a downward departure or that would amount to an appropriate legal basis for a downward departure or that would factually amount to an appropriate reason to go below the guideline range. (J.A. at 113.) It seems clear that the district court recognized its power to depart downwards but merely exercised its discretion not to do so. Consequently, the district court’s failure to grant Butler a downward departure is not reviewable. Because Butler’s arguments are meritless, his sentence is affirmed. B. The arguments Retic makes before this Court, both of which attack the decision of the district court to enhance his offense level at sentencing pursuant to § 3B1.4 of the Guidelines are viewed differently. Section 3B1.4 provides that “[i]f the defendant used or attempted to use a person less than eighteen years of age to commit the offense or assist in avoiding detection of, or apprehension for, the offense,” a district court may increase the defendant’s offense level by two levels. USSG § 3B1.4 (1998). In his challenge to the § 3B1.4 enhancement, Retic argues, for the first time before this Court, that to the extent the enhancement applies to

8 United States v. Butler, et al. Nos. 98-5552/5554 Nos. 98-5552/5554 United States v. Butler, et al. 17

defendants of any age, the provision goes beyond the scope of Consequently, the district court misapplied the provision. the mandate Congress granted the Sentencing Commission The district court found that Retic and Harden were partners (“Commission”). He further argues that even if § 3B1.4 is in crime who worked together to rob the Munford Union valid, the district court should not have applied it in his case Bank, but failed to find that Retic acted affirmatively to because he did not use or attempt to use Harden during the involve Harden in the armed bank robbery beyond merely bank robbery. Retic does not succeed with his argument that acting as his partner. The district court did not find that Retic § 3B1.4 is generally invalid; however, his argument that the directed, commanded, intimidated, counseled, trained, provision does not apply to his case is meritorious. procured, recruited, or solicited Harden’s participation in the bank robbery.3 Thus, the district court concluded, on the 1. basis of evidence showing that Harden participated in the robbery with Retic and on the inference that they Congress enacted the precursor to § 3B1.4 when it passed “encouraged” one another, that Retic “used” Harden. the Violent Crime Control and Law Enforcement Act of 1994, Because the term “use” requires a showing of more than a Pub. L. No. 103-322, § 140008, 108 Stat. 2033 (1994). This mere criminal partnership, the district court erred in finding enabling provision directed the Commission to “promulgate that Retic used a minor in committing his crime and in guidelines or amend existing guidelines to provide that a enhancing Retic’s sentence by two levels pursuant to § 3B1.4. defendant 21 years of age or older who has been convicted of Accordingly, Retic’s case is remanded to the district court for an offense shall receive an appropriate sentence enhancement resentencing. if the defendant involved a minor in the commission of the offense.” Id. Although the sentence enhancement created by III. Congress included language restricting its application to defendants 21 years of age or older, in adopting § 3B1.4, the As previously explained, the district court did not err in Commission dropped the age restriction, rendering the sentencing Butler as a career offender pursuant to § 4B1.1 of sentence enhancement applicable to defendants of all ages. the Guidelines, and was aware of its authority to depart Retic, who was 20 years old when he committed this crime, downwards in sentencing Butler, but simply exercised its therefore argues that § 3B1.4 goes beyond the limited discretion not to do so. However, because a defendant must authorization Congress granted, and that as a defendant under do more than merely act as a partner with a minor in crime, in the age of 21 at the time of the offense, he should not be order to “use” a minor in crime under § 3B1.4, this subject to a sentence enhancement for involving a minor in enhancement does not apply to Retic and his sentence was his crime. Although this argument carries some facial appeal, erroneously imposed. Accordingly, we AFFIRM the it lacks merit. judgment of the district court as to Butler, but VACATE the In 1984, Congress created the Commission, charging it with “establish[ing] sentencing policies and practices for the 3 The facts, at best, show only that Retic and Harden possessed equal Federal criminal justice system.” 28 U.S.C. § 991 (1985). authority in their commission of the crime. As Retic points out, it was Since this delegation of power was constitutional, sentencing Harden who directed Retic not to shoot the customer service guidelines promulgated by the Commission now bind the representative at the bank. Moreover, when asked about the crime, federal courts. See Mistretta v. United States, 488 U.S. 361, Harden identified Butler, and not Retic, as the individual who planned the robbery. Although it therefore seems more likely that Butler “directed” 391 (1989). Although Congress legitimately granted the a minor to commit a crime, the district court did not have the opportunity Commission “significant discretion in formulating to make such a finding because the government dropped its charge against Butler in connection with this particular robbery.

16 United States v. Butler, et al. Nos. 98-5552/5554 Nos. 98-5552/5554 United States v. Butler, et al. 9

the offender and the minor(s) involved in the offense.” guidelines,” id. at 377, the discretion of the Commission § 140008(b) (emphasis added). Congress’ inclusion of these “must bow to the specific directives of Congress.” United considerations indicates that to deserve § 3B1.4 enhancement, States v. LaBonte, 520 U.S. 751, 757 (1997). When the one must do more than simply participate in crime with a Commission seeks to amend a guideline, it must submit a minor. If the contrary were true, the relative ages of the proposed amendment to Congress, along with reasons offender and the minor would be irrelevant; by deeming age explaining the amendment, and must give Congress 180 days, relevant, Congress likely imagined an offender who actually or roughly six months, to modify or disapprove the exercised some control or took some affirmative role in amendment. See 28 U.S.C. § 994(p) (1994). Under this involving the minor. “report and wait” provision, if Congress fails to act, the proposed amendment will take effect. See id. Taking this Finally, it is instructive to consider the analogous statutory process into account, this Court has recognized that “[w]hen provision criminalizing the use of juveniles in drug Congress and the Commission disagree on matters of trafficking, which makes it unlawful for an adult to sentencing policy, Congress trumps. . . . Where the “knowingly and intentionally employ, hire, use, persuade, Guidelines and a statute conflict, the statute (an act of induce, entice, or coerce, a person under eighteen years of Congress) controls.” United States v. Gaines, 122 F.3d 324, age” to violate federal drug laws. 21 U.S.C. § 861 (1998). 330 (6th Cir. 1997). Indeed, in giving the Commission the authority to create § 3B1.4, Congress made indirect reference to this statute To determine whether a guideline adopted by the when it observed that the Guidelines set forth a two-level Commission is at odds with the directives of Congress and sentence enhancement for crimes involving a minor in a drug must therefore give way, the language of the statute is looked trafficking offense. See Violent Crime Control and Law at first. See LaBonte, 520 U.S. at 757. In the statute enabling Enforcement Act of 1994, § 140008(b)(3); USSG § 2D1.1 § 3B1.4, Congress adopted the following language: (noting its application to § 861 convictions). Courts interpreting § 861 have observed that where the evidence SEC. 140008. SOLICITATION OF MINOR TO shows a juvenile was involved in the defendant’s drug COMMIT CRIME operation, the government must produce additional evidence showing that the defendant was responsible for some (a) Directive to Sentencing Commission. affirmative or active “use” of the juvenile. See, e.g., United (1) The United States Sentencing Commission shall States v. McDonald, 877 F.2d 91, 93 (D.C. Cir. 1989). In promulgate guidelines or amend existing guidelines to analyzing the sufficiency of evidence supporting a § 861 provide that a defendant 21 years of age or older who has conviction, we have looked for proof of the juvenile’s been convicted of an offense shall receive an appropriate subservience to the defendant in the drug operation in sentence enhancement if the defendant involved a minor response to the claim that the juvenile was an independent in the commission of the offense. drug dealer over whom the defendant exerted no influence. (2) The Commission shall provide that the guideline See United States v. Segines, No. 95-3534, 1996 WL 287254, enhancement promulgated pursuant to paragraph (1) shall at *8 (6th Cir. May 8, 1996) (unpublished). Thus, it appears apply for any offense in relation to which the defendant that in the criminal context, “using” a minor to carry out has solicited, procured, recruited, counseled, encouraged, criminal activity entails more than being the equal partner of trained, directed, commanded, intimidated, or otherwise that minor in committing a crime. used or attempted to use any person less than 18 years of

10 United States v. Butler, et al. Nos. 98-5552/5554 Nos. 98-5552/5554 United States v. Butler, et al. 15

age with the intent that the minor would commit a adjustments entitled “Role in the Offense.” USSG Ch. 3, Federal offense. Pt.B. The introductory commentary to this part of the Guidelines states that it sets forth “adjustments to the offense Violent Crime Control and Law Enforcement Act of 1994, level based upon the role the defendant played in committing Pub. L. No. 103-322, § 140008, 108 Stat. 2033 (1994). At the offense.” USSG Ch. 3, Pt.B, intro. comment. Under the first blush, it appears, as Retic alleges, that Congress generous construction adopted by the district court, any intended—and provided in unambiguous terms—for sentence defendant who partnered with a minor in a crime would be enhancement for solicitation of a minor to commit crime only subject to a two-level enhancement, creating, in effect, a for defendants age 21 and older. A clearer expression of “strict liability enhancement.” However, this view conflicts congressional intent is unimaginable. with the notion that the enhancement is reserved for defendants who play a particular role in the offense. Indeed, However, Congress’ expression of intent as to § 3B1.4 did if numerous adult defendants participated in a crime along not begin and end with its enactment of § 140008. When the with a minor, every single one of the adult defendants would Commission drafted § 3B1.4 to reflect the congressional be subject to the two-level enhancement, regardless of the directive set forth in § 140008, it did so by proposing roles they played in involving the minor in the crime. Such a Amendment 527 to the Sentencing Guidelines. See USSG result would ostensibly render the characterization of § 3B1.4 App. C. (1998). In accordance with statutory procedures as a “role in the offense” adjustment a misnomer. regarding the proposal of amendments to the Guidelines, the Commission then submitted Amendment 527, along with Moreover, sentencing guidelines are to be interpreted and many other proposed amendments, to Congress on May 1, applied so that they are consistent with the statute that 1995, and specified an effective date of November 1, 1995. authorized them. See Stinson v. United States, 508 U.S. 36, See Amendments to the Sentencing Guidelines for the United 45 (1993). Congress labeled the provision enabling § 3B1.4 States Courts, 60 Fed. Reg. 25074, 25086 (May 10, 1995). “Solicitation of a Minor to Commit Crime.” Violent Crime Significantly, in submitting Amendment 527, the Commission Control and Law Enforcement Act of 1994, § 140008. The stated as the reason for its proposal that the amendment dictionary defines “solicitation” as “[a]sking; enticing; urgent “implements the directive in Section 140008 of the Violent request. The inchoate offense of asking someone to engage Crime Control and Law Enforcement Act of 1994 (pertaining in illegal conduct.” Black’s Law Dictionary 1392 (6th ed. to the use of a minor in the commission of an offense) in a 1990). As one could not passively solicit the participation of slightly broader form.” 60 Fed. Reg. at 25086. On October a minor in crime, this suggests that the enhancement should 30, 1995, Congress considered and rejected some of the apply when a defendant takes affirmative acts to involve a amendments proposed on May 1, 1995, see Pub. L. No. 104- minor. Moreover, while setting forth the suggested 38, 109 Stat. 334 (1995), but did not act to modify or definitions for the term “use” adopted in Application Note 1, disapprove Amendment 527.1 Thus, Amendment 527, Section 140008 also identified a number of “relevant codified as § 3B1.4, became effective on November 1, 1995. considerations” that indicate Congress did not intend to create See USSG App. C. “strict liability enhancement” for anyone who merely participates in crime with a minor. Violent Crime Control and Law Enforcement Act of 1994, § 140008. For example, 1 Congress instructed the Commission to consider “the severity For example, Congress disapproved of a proposed amendment that would have eliminated the 100:1 sentencing ratio that treats one who deals of the crime that the defendant intended the minor to commit” in a given quantity of crack cocaine the same as it treats one who deals in and “the possible relevance of the proximity in age between 100 times as much powder cocaine. See Gaines, 122 F.3d at 327.

14 United States v. Butler, et al. Nos. 98-5552/5554 Nos. 98-5552/5554 United States v. Butler, et al. 11

within the guideline range, although this is certainly not Against this historical backdrop, Retic essentially invites the clear -- it’s a fairly close issue based on some of the the Court to hold that in spite of its inaction when faced with other language of the application note. Amendment 527, Congress intended, as it originally stated in § 140008, that sentence enhancements for the involvement of (J.A. at 70-71.) Our review of § 3B1.4 leads us to disagree minors in crime should apply only to defendants who are 21 with the district court’s analysis. years of age and older. Given the context, Retic’s invitation cannot be accepted. The provision that allowed Congress six It was proper for the district court to take a plain language months to review and displace Amendment 527 resembles the approach in its interpretation of § 3B1.4, because courts must “report and wait” provision of the enabling acts for the treat the sentencing guidelines “as if they were a statute” and Federal Rules of Civil Procedure and the Federal Rules of follow “the clear, unambiguous language if there is no Evidence. See United States v. Scampini, 911 F.2d 350, 353 manifestation of a contrary intent.” United States v. Lewis, (9th Cir. 1990) (quoting United States v. Smith, 713 F. Supp. 900 F.2d 877, 881 (6th Cir. 1990); see also Lopez-Lopez, 1315, 1318-19 (D. Minn. 1989)). The Supreme Court has 1998 WL 788875, at *1 (holding that courts may use the long affirmed the validity of “report and wait” procedures and “common meaning of ‘use’” in applying § 3B1.4). However, the significance of congressional inaction under such the district court relied heavily on a definition for the term procedures, observing in a case challenging the Federal Rules “encourage” and not for the term “use,” and even then chose of Civil Procedure that: not to rely upon the definition of “encourage” set forth specifically for the criminal legal context, namely “to The value of the reservation of the power to examine instigate.” Black’s Law Dictionary 527 (6th ed. 1990). The proposed rules, laws and regulations before they become dictionary defines “use” as “[t]o make use of; to convert to effective is well understood by Congress. It is one’s service; to employ; to avail oneself of; to utilize; to frequently, as here, employed to make sure that the action carry out a purpose or action by means of; to put into action under the delegation squares with the Congressional or service, especially to attain an end.” Black’s Law purpose. Evidently the Congress felt the rule was within Dictionary 1541 (6th ed. 1990). A consideration of the the ambit of the statute as no effort was made to definitions of “use” supports the notion that § 3B1.4 would eliminate it from the proposed body of rules, although require more affirmative action on the part of a defendant. . . . [t]he Preliminary Draft of the rules called attention to See Bailey v. United States, 516 U.S. 137, 145 (1995) (finding the contrary practice . . ., as did the Report of the that “[t]hese various definitions of ‘use’ imply action and Advisory Committee and the Notes prepared by the implementation”); see also LeFave, 1998 WL 10362, at *1 Committee to accompany the final version of the rules. (observing that although mere awareness of a minor’s That no adverse action was taken by Congress indicates, involvement would not warrant § 3B1.4 enhancement, active at least, that no transgression of legislative policy was payment by a defendant to a minor for illegal work would found. We conclude that the rules under attack are merit such enhancement). within the authority granted. In an effort to determine the true meaning of § 3B1.4, the Sibbach v. Wilson & Co., Inc., 312 U.S. 1, 15 (1941). The language and design of the statute as a whole as well as the Court has continued to find valid the enactment of rules specific provision at issue must be considered. See KMart through “report and wait” provisions. See, e.g., Alaska Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). Section Airlines, Inc. v. Brock, 480 U.S. 678, 690 & n.12 (1987); INS 3B1.4 falls under a category of sentencing guideline v. Chadha, 462 U.S. 919, 935 & n.9 (1983).

12 United States v. Butler, et al. Nos. 98-5552/5554 Nos. 98-5552/5554 United States v. Butler, et al. 13

These cases instruct that Congress reserved for itself the Harris, 165 F.3d 1062, 1067 (6th Cir. 1999) (finding § 3B1.4 opportunity to review proposed amendments to guidelines enhancement proper not because defendant “used” a minor, through a “report and wait” provision, and that by failing to but because the minor “assisted” defendant in avoiding2 act to modify or disapprove Amendment 527 even when detection of the offense). Since the provision is fairly new, notified that it was different from the directive enacted in very few courts have interpreted the “use” or “attempted to § 140008, Congress, in effect, approved of Amendment 527 use” aspect of § 3B1.4. See, e.g., United States v. Benjamin, as an appropriate reflection of its policy on the sentencing of 116 F.3d 1204, 1206 (7th Cir. 1997); United States v. Lopez- those who involved minors in their crimes. Cf. United States Lopez, No. 98-50030, 1998 WL 788875, at *1 (9th Cir. Nov. v. Munoz-Realpe, 21 F.3d 375, 377 (11th Cir. 1994) 5, 1998) (unpublished); United States v. LeFave, No. 96- (concluding that by allowing an amendment to the Guidelines 50618, 1998 WL 10362, at *1 (9th Cir. Jan. 13, 1998) to take effect, Congress gives its “imprimatur” to the new (unpublished). guideline). Thus, although the initial intent of Congress would have been at odds with § 3B1.4, the history behind the Here, the district court followed a path somewhat similar to passage of § 3B1.4 compels a finding that the intent of that taken by the court in Benjamin, where the United States Congress changed. While at first Congress expressly directed Court of Appeals for the Seventh Circuit affirmed an the Commission to exclude defendants under the age of 21 enhancement pursuant to § 3B1.4 where the defendant and the from this sentence enhancement, through its inaction under minor were “partner[s] in crime” and co-conspirators. 116 the “report and wait” provision of § 994(p), Congress F.3d at 1206. While conceding that the list of words set forth ultimately failed to express disagreement with expansion of in Application Note 1 of the Commentary to the provision the enhancement to include defendants under the age of 21. “would connote some pressure or affirmative action,” the This is not the situation in which the intent of Congress and district court placed emphasis on the definition of the term the position adopted by the Sentencing Guidelines are at odds; “encouraged” as set forth in Black’s Law Dictionary. That therefore, the enactment of § 3B1.4 was valid, and the publication defines “encourage” as “[i]n criminal law, to Commission did not overstep the bounds of its authority. instigate; to incite to action; to give courage to; to inspirit; to embolden; to raise confidence; to make confident; to help; to 2. forward; to advise.” Black’s Law Dictionary 527 (6th ed. 1990). The district court then found that: Since Retic cannot prevail in his general attack on the validity of § 3B1.4, we turn now to his claim that it was Mr. Retic and Mr. Harden worked together to commit the improper for the district court to apply § 3B1.4 given the facts crime. They helped one another, and they encouraged of his case. Specifically, he cites the absence of proof that he one another simply by their own participation. The used or attempted to use Harden during the bank robbery. In presence and involvement of each was an emboldening determining whether a defendant “used or attempted to use” factor to the other, and so I would agree that there is not a minor so as to warrant a § 3B1.4 enhancement, a sentencing any indication that Mr. Retic, as an adult, was pressuring court should bear in mind that “‘[u]sed or attempted to use’ Mr. Harden as a minor . . . he did use a minor in the includes directing, commanding, encouraging, intimidating, sense that I have described, and I think that does fall counseling, training, procuring, recruiting, or soliciting.” USSG § 3B1.4, comment. (n.1). This Court has yet to construe the meaning of the term “use” or the phrase 2 “attempted to use” in this context. See United States v. The version of § 3B1.4 applied by the district court became effective on November 1, 1995. See USSG. App. C.