United States v. Israel

NOT RECOMMENDED FOR PUBLICATION
File Name: 07a0529n.06
Filed: July 26, 2007
No. 05-4468
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
SOLOMON ISRAEL, ) SOUTHERN DISTRICT OF OHIO
)
Defendant-Appellant. )
) OPINION
)
Before: MOORE and GILMAN, Circuit Judges; and FORESTER, District Judge.*
RONALD LEE GILMAN, Circuit Judge. Solomon Israel appeals from his resentencing
pursuant to a Booker remand. He argues that the sentence imposed on remand violated his Sixth
Amendment rights. For the reasons set forth below, we AFFIRM the judgment of the district court.
I. BACKGROUND
The facts of this case have been set forth in detail in this court’s decision on Israel’s initial
appeal. United States v. Israel, 133 F. App’x 159 (6th Cir. 2005). We will thus not repeat the facts
here except as needed for the purpose of this appeal.
*
The Honorable Karl S. Forester, Senior United States District Judge for the Eastern District of Kentucky,
sitting by designation.
In 1996, Israel, a retail businessman in Detroit, became friends with Dennis Hunter, a major
drug dealer in the Dayton, Ohio area. Hunter wished to conceal some of the proceeds from his
illegal activity. Israel suggested that Hunter invest in a Detroit flea market that Israel hoped to
develop and that Hunter physically hide the rest of the money in the flea market building. Hunter
gave Israel $190,000 to invest in the flea market, but hid the balance of his drug money in his own
home and in another associate’s home. Israel personally helped Hunter count approximately $1.1
million in drug proceeds at Hunter’s home.
Shortly thereafter, federal law enforcement agents searched the homes of Hunter and his
associate. They filed charges against Hunter and asked him to turn himself in. Instead, Israel came
to Dayton and picked up Hunter, advised him to “take care of [his] business properly” before turning
himself in, took him to Detroit, and arranged for a Detroit-area attorney to represent him. Further,
Israel suggested that Hunter tell the Internal Revenue Service that the money that the federal agents
had found in the homes in Dayton was gambling proceeds. Israel also prepared fraudulent tax
returns showing that 85 percent of Hunter’s income came from gambling. Then Israel returned
Hunter to Dayton, where Hunter turned himself in to the authorities.
A grand jury indicted Israel on drug conspiracy, money laundering, and income tax fraud
charges. After a jury trial, he was convicted of conspiracy to possess with intent to distribute in
excess of five kilograms of cocaine, money laundering, traveling in interstate commerce to promote
a drug conspiracy, and conspiracy to defraud the United States by causing the preparation of false
income tax returns. The district court sentenced him to concurrent prison terms of 120 months for
the drug conspiracy, 41 months for money laundering, 60 months for interstate travel, and 30 months
for tax conspiracy.
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Israel appealed. This court affirmed his convictions on appeal but vacated and remanded his
sentence in light of United States v. Booker, 543 U.S. 220 (2005). After a resentencing hearing
under the advisory Guidelines, the district court resentenced Israel to the same terms of
imprisonment as before.
Israel now argues that the district court violated his Sixth Amendment rights in resentencing
him by using the preponderance-of-the-evidence standard when converting the amount of money
laundered into an equivalent amount of cocaine. The district court, he asserts, also disregarded this
court’s previous ruling that the original sentence violated Booker. He contends that the district court
should have sentenced him under 21 U.S.C. § 841(b)(1)(C), which carries no mandatory minimum
sentence, rather than under 21 U.S.C. § 841(b)(1)(A), which carries a mandatory minimum sentence
of ten years of imprisonment.
II. ANALYSIS
Israel first contends that the district court erred in making findings of fact under the
preponderance-of-the-evidence standard. He reads this court’s decision in his previous appeal as
barring the judge from using that standard. His reading, however, overlooks a crucial distinction:
Israel’s first sentencing hearing was conducted prior to the Supreme Court’s decision in Booker, and
thus was subject to the then-mandatory Guidelines regime, but his resentencing hearing was
conducted under the now-advisory Guidelines regime.
This court has held, post-Booker, that judicial factfinding at the sentencing stage under an
advisory Guidelines regime does not violate the Sixth Amendment. See, e.g., United States v.
Gardiner, 463 F.3d 445, 461 (6th Cir. 2006) (“[A] district court may make its own factual findings
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regarding relevant sentencing factors, and consider those factors in determining a defendant’s
sentence.”); United States v. Stone, 432 F.3d 651, 654-55 (6th Cir. 2005), cert. denied, 127 S. Ct.
129 (2006) (“Booker did not eliminate judicial fact-finding.”).
The preponderance-of-the-evidence standard was also properly applied. This circuit has held
that “district judges can find the facts necessary to calculate the appropriate Guidelines range using
the same preponderance-of-the-evidence standard that governed prior to Booker.” United States v.
Ferguson, 456 F.3d 660, 665 (6th Cir. 2006).
Israel’s remaining argument that the district court erred in resentencing him under 21 U.S.C.
§ 841(b)(1)(A), with its ten-year minimum prison term, is also unavailing. The district court clearly
stated, after conducting a thorough analysis of the 18 U.S.C. § 3553(a) factors, that it had “arrived
at a sentence which it feels to be sufficient, but not greater than necessary to comply with the
purposes set forth in the sentencing statutes.” Further, the court stated that it had “made that
conclusion without any consideration of the mandatory minimum sentence,” although the court also
determined that the 10-year minimum sentence specified in 21 U.S.C. § 841(b)(1)(A) was applicable.
We find no basis to question the reasonableness of the sentence imposed. Moreover, the
sentence did not violate Israel’s Sixth Amendment rights under Apprendi v. New Jersey, 530 U.S.
466 (2000), because the sentence imposed did not exceed the 20-year maximum sentence set forth
in 21 U.S.C. § 841(b)(1)(C) for an unspecified amount of cocaine. See United States v. Copeland,
321 F.3d 582, 603 (6th Cir. 2003) (“[W]here a defendant is made subject to a higher range of
punishment under §§ 841(b)(1)(A) and (B) but is nonetheless sentenced within the confines of
§ 841(b)(1)(C), his rights under Apprendi are not violated.”). The district court therefore did not err
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in resentencing Israel by finding facts under the preponderance-of-the-evidence standard and did not
violate his Sixth Amendment rights by applying 21 U.S.C. § 841(b)(1)(A) based on those facts.
At oral argument, Israel contended for the first time that the Supreme Court’s decision in
Cunningham v. California, 127 S. Ct. 856 (2007), precludes the district court from making a factual
finding by a preponderance of the evidence that results in the application of a statutory mandatory
minimum sentence. The district court, however, explicitly stated that it had determined Israel’s
sentence “without any consideration of the mandatory minimum sentence.” We thus find no need
to reach his belated argument in order to resolve the case before us. This issue will therefore be
deferred to a future case where its resolution is material to the outcome and the matter can be fully
briefed by the parties.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.
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