United States v. Robert Mercado, Jr., United States of America v. Daniel Bravo, Aka's Sporty Seal G

Opinion by Judge FERNANDEZ; Dissent by Judge BETTY B. FLETCHER

FERNANDEZ, Circuit Judge.

Robert Mercado, Jr., and Daniel Bravo appeal their sentences for conspiracy to violate RICO,¹18 U.S.C. § 1962(d), and for conspiracy to aid and abet narcotics trafficking. 21 U.S.C. § 846. They assert that in calculating their sentences under the United States Sentencing Guidelines, the district court erred when it considered criminal activity which had been charged in the indictment, but which the jury determined had not been proved beyond a reasonable doubt. We affirm.

BACKGROUND

As part of the government’s prosecution of members of the Mexican Mafia, Mercado and Bravo were charged with: (1) violating RICO, 18 U.S.C. § 1962(c); (2) RICO conspiracy, 18 U.S.C. § 1962(d); (3) conspiracy to distribute narcotics, 21 U.S.C. § 846; (4) five counts of violent crimes in aid of racketeering activity, 18 U.S.C. § 1959(a); (5) conspiracy to commit murder; and (6) five counts of brandishing and discharging a firearm. They were found guilty of the RICO conspiracy and of the drug conspiracy, but were acquitted of the other charges.

At sentencing,² the district court stated that the question was “whether it remains permissible after Booker for a Court to consider acquitted conduct when sentencing a defendant, provided that the sentence imposed does not exceed the statutory maximum sentence authorized for crimes for which the defendant was convicted.” The district court concluded that “when a district court makes a determination of sentencing facts by a preponderance test under the now-advisory guidelines, it is not bound by jury determinations reached through application of the more onerous, reasonable doubt standard.” Thus, it considered the criminal activity charged in the acquitted counts when it sentenced Mercado and Bravo on the counts for which they were convicted. Those sentences did not exceed the statutory maximum possible sentences under the counts of conviction.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review claims that a sentence is unconstitutional de novo. See United States v. Leon H., 365 F.3d 750, 752 (9th Cir.2004).

DISCUSSION

Mercado and Bravo appeal their sentences and claim that their constitutional right to a jury trial was violated when the conduct involved in the crimes for which they were acquitted was considered by the district court. U.S. Const, amend. VI. We disagree.

We start, as we must, with United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (per curiam). In that case, the Supreme Court considered holdings by this court “that sentencing courts could not consider conduct of the defendants underlying charges of which they had been acquitted.” Id. at 149, 117 S.Ct. at 634. It rejected that notion, and after pointing out that “ ‘an acquittal in a criminal case does not preclude the Government from relitigating an issue when it is presented in a subsequent action governed by a lower standard of proof,’ ”³ it went on to “hold that a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.”⁴ That would seem to be a complete answer to the issue before us.

But, argue Mercado and Bravo, once Booker⁵ was decided, Watts was necessarily so undermined and limited that it no longer controls. Thus, they say, our pre-Watts jurisprudence is renascent and prevents consideration of conduct “underlying charges of which they had been acquitted.” Watts, 519 U.S. at 149, 117 S.Ct. at 634.

We are not convinced. True it is that the Supreme Court did point out that the Sixth Amendment issue regarding mandatory Sentencing Guidelines, which it was then considering, was not presented in Watts because that case actually focused on the Fifth Amendment’s Double Jeopardy Clause. Booker, 543 U.S. at 240 & n. 4, 125 S.Ct. at 754 & n. 4. But that did not strike Watts from the jurisprudential books. While the Watts holding might have become problematic under a mandatory guideline system, the Court went on to declare that even before the Guidelines, federal judges could look to the “real conduct ” of a defendant. Id. at 250, 125 S.Ct. at 759. And, said the Court:

Congress expected this system to continue. That is why it specifically inserted into the [Sentencing] Act the provision cited above, which (recodifying prior law) says that

“[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” 18 U.S.C. § 8661.

This Court’s earlier opinions assumed that this system would continue. That is why the Court, for example, held in United States v. Watts ... that a sentencing judge could rely for sentencing purposes upon a fact that a jury had found unproved (beyond a reasonable doubt).

Id. at 251, 125 S.Ct. at 760. That regime was preserved when the provisions that made the Guidelines mandatory were excised. Id. at 245, 125 S.Ct. at 756-57. To put it another way, the constitutional propriety of a sentencing court’s consideration of conduct which underlay an acquitted charge existed before creation of the Guidelines and continues to exist today, despite the possibility that it would not exist if the Guidelines were mandatory, which they are not.

We are, therefore, satisfied that the core principle of Watts lives on and that the district court could constitutionally consider the acquitted conduct. In that we are not alone.

In fact, in a case where a jury “[i]n a special interrogatory ... determined that the government had failed to prove [a crime] beyond a reasonable doubt,” we pointed out that: “The Supreme Court has held that a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge.” United States v. Lynch, 437 F.3d 902, 915-16 (9th Cir.) (per curiam) (en banc), cert. denied, — U.S. -, 127 S.Ct. 89, 166 L.Ed.2d 62 (2006). And in yet another case, even though there had been an acquittal, we cited Waffs and stated that “neither principles of double jeopardy nor collateral estoppel nor Ameline and Booker would preclude the district court on resentencing from appropriately considering factual allegations that [defendant] is responsible for the use of weapons during the robbery, as well as bodily injury and physical restraint.” United States v. Johnson, 444 F.3d 1026, 1030 (9th Cir.2006).

Moreover, every other Court of Appeals to consider the issue has agreed with the proposition that the use of acquitted conduct at sentencing does not violate the Constitution. See United States v. Gobbi 471 F.3d 302, 2006 WL 3804388 (1st Cir. Dec. 28, 2006) (Watts survives Booker); United States v. Farias, 469 F.3d 393, 399-400 (5th Cir.2006) (same); United States v. Hayward, 177 Fed.Appx. 214, 215 (3d Cir.) (same), cert. denied, — U.S. -, 127 S.Ct. 270, 166 L.Ed.2d 208 (2006); United States v. Dorcely, 454 F.3d 366, 371 (D.C.Cir.) (neither Fifth nor Sixth Amendment violated), cert. denied, — U.S.-, 127 S.Ct. 691, — L.Ed.2d - (2006); United States v. High Elk, 442 F.3d 622, 626 (8th Cir.2006) (even after Booker acquitted conduct can be considered); United States v. Vaughn, 430 F.3d 518, 525-27 (2d Cir.2005) (Watts survives Booker), cert. denied, — U.S. -, 126 S.Ct. 1665, 164 L.Ed.2d 405 (2006); United States v. Price, 418 F.3d 771, 787-88 (7th Cir.2005) (same); United States v. Ashworth, 139 Fed.Appx. 525, 527 (4th Cir.) (per curiam) (Sixth Amendment not violated), cert. denied, — U.S. -, 126 S.Ct. 765, 163 L.Ed.2d 594 (2005); United States v. Magallanez, 408 F.3d 672, 684-85 (10th Cir.) (same), cert. denied, — U.S. -, 126 S.Ct. 468, 163 L.Ed.2d 356 (2005); United States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir.) (same), cert. denied, — U.S. -, 126 S.Ct. 432, 163 L.Ed.2d 329 (2005).

In fine, we join, rather than rain upon, the parade of authority that finds no Sixth Amendment violation when sentencing judges consider conduct underlying acquitted counts.⁶

CONCLUSION

We hold that Booker has not abrogated the previously prevailing constitutional jurisprudence that allowed sentencing courts to consider conduct underlying acquitted criminal charges.

AFFIRMED.

1 . Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-68.

2 . Actually, this was a resentencing after we remanded for that purpose. United States v. Mercado, 110 Fed.Appx. 19, 23-24 (9th Cir.2004).

3 . Id. at 156, 117 S.Ct. at 637.

4 . Id. at 157, 117 S.Ct. at 638.

5 . United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

6 . Mercado and Bravo also assert that their double jeopardy rights were violated, despite Watts. From what we have already said, it follows, mutatis mutandis, that they cannot prevail on that claim.