United States v. Dickel , 294 F. App'x 16 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4081
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MATTHEW DICKEL,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Parkersburg. Joseph R. Goodwin,
Chief District Judge. (6:06-cr-00077-1)
Submitted: August 29, 2008 Decided: September 22, 2008
Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Andrew J. Katz, THE KATZ WORKING FAMILIES’ LAW FIRM, LC,
Charleston, West Virginia, for Appellant. Charles T. Miller, United
States Attorney, Steven I. Loew, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Matthew Dickel pled guilty to making a false statement
when purchasing a firearm and being an unlawful user of a
controlled substance in possession of a firearm. He was sentenced
to 180 months in prison, the statutory maximum. We affirm his
sentence.
Dickel first asserts that the district court erroneously
considered acquitted conduct when applying the murder cross-
reference in U.S. Sentencing Guidelines Manual § 2K2.1(c)(2)
(2003), while calculating his advisory guidelines range. According
to Dickel, United States v. Booker, 543 U.S. 220 (2005), prohibits
use of acquitted conduct. However, acquitted conduct is properly
considered when calculating a guidelines range, even after Booker.
See United States v. Brika, 487 F.3d 450, 459 (6th Cir. 2007),
cert. denied, 128 S. Ct. 341 (2007); United States v. Duncan, 400
F.3d 1297, 1304-05 (11th Cir. 2005); United States v. Williams, 399
F.3d 450, 453-54 (2d Cir. 2005).
Dickel also makes a similar, alternative argument,
contending that the district court was permitted, but not required,
to consider acquitted conduct. According to Dickel, the district
court erroneously believed that it was required to consider this
conduct. When sentencing a defendant, a district court must
properly calculate the guidelines range, as a matter of
administration and to secure nationwide consistency. The
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guidelines are “the starting point and the initial benchmark.”
Gall v. United States, 128 S. Ct. 586, 596 (2007).
Here, the court considered Dickel’s relevant conduct,
heard evidence on the objections thereto, and made findings of
fact. In calculating the guidelines range, the district court was
required to consider the relevant conduct as outlined in the
presentence report. To ignore or disregard certain evidence proven
by a preponderance of the evidence would sidestep the court’s duty
to calculate the guidelines range. Of course, the court is free to
consider the fact that the relevant conduct was also acquitted
conduct and consider that issue when arriving at the final
sentence. The court is even free, as it actually did here, to
disregard the cross-reference, after it has been appropriately
calculated, should the court determine that the cross-reference
resulted in a harsher sentence than necessary. See Kimbrough v.
United States, 128 S. Ct. 558, 575 (2007) (holding that district
court may find the guideline’s crack/powder disparity yielded a
sentence “greater than necessary” to achieve the purposes of
sentencing).
Accordingly, although Dickel is correct in part, his
argument misses the point. While the court is free to make an
individualized assessment based on the facts presented in
determining whether an outside-guidelines sentence is warranted,
see Gall, 128 S. Ct. at 596-97, the court must first determine the
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advisory guidelines range after applying all the relevant
guidelines, including the murder cross-reference. Had the court
decided to not apply certain guidelines or to ignore relevant
conduct proved by a preponderance of the evidence, the court would
have committed significant procedural error. See United States v.
Evans, 526 F.3d 155, 164 (4th Cir. 2008). Accordingly, the
district court correctly considered Dickel’s acquitted conduct,
proven by a preponderance of the evidence,* when calculating his
guidelines range.
Dickel next asserts that the district court applied the
wrong standard of proof when using evidence of his physical and
emotional abuse of his girlfriend to impose a variance sentence,
600 percent higher than the advisory guidelines range without the
murder cross-reference (which the court was hesitant to use to
justify an increased sentence, as Dickel had been acquitted of
murder by a state jury). According to Dickel, the Supreme Court
requires that a higher standard of proof be used when judge-found
facts lead to a much longer term of incarceration. See McMillan v.
Pennsylvania, 477 U.S. 79, 86-88 (1986) (holding that permitting a
greatly enhanced sentence under a preponderance of the evidence
standard would be tantamount to the enhancement becoming the “tail
*
The district court actually found these facts beyond a
reasonable doubt.
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that wags the dog” of the substantive offense and would violate due
process).
We recognized pre-Booker that the Due Process Clause
imposes some limitations on the use of sentencing factors proven
only by a preponderance of the evidence; however, we have never
defined those limits and have never declared a sentence invalid on
the basis that a sentencing factor was established by an inadequate
standard of proof. See United States v. Hammoud, 381 F.3d 316,
354-55 (4th Cir. 2004), vacated, 543 U.S. 1097 (2005). We decline
to address the issue in light of Booker in this case, because any
error here was harmless. See United States v. Olsen, 519 F.3d
1096, 1106 (10th Cir. 2008) (applying harmless error review in
similar case). The district court found beyond a reasonable doubt
that Dickel murdered his girlfriend. The court made this finding
largely based on evidence of Dickel’s continued abuse of her and
his repeated threats. While the court separately stated that it
made findings regarding this abuse by a preponderance of the
evidence, it is clear that under any standard of proof, the
evidence showed that Dickel repeatedly abused his girlfriend and
was a violent and dangerous person, the facts underlying the
court’s decision to impose an enhanced sentence.
Accordingly, we affirm Dickel’s sentence. We dispense
with oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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