United States v. White ( 2007 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0409p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 05-6596
v.
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ROGER CLAYTON WHITE, -
Defendant-Appellant. -
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Appeal from the United States District Court
for the Eastern District of Kentucky at Covington.
No. 02-00027—David L. Bunning, District Judge.
Submitted: January 26, 2007
Decided and Filed: October 5, 2007
Before: MERRITT, DAUGHTREY, and GRIFFIN, Circuit Judges.
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COUNSEL
ON BRIEF: Kevin M. Schad, SCHAD & SCHAD, Lebanon, Ohio, for Appellant. Charles P.
Wisdom, Jr., Andrew Sparks, ASSISTANT UNITED STATES ATTORNEYS, Lexington,
Kentucky, for Appellee. Roger Clayton White, Ashland, Kentucky, pro se.
The court delivered a PER CURIAM opinion. GRIFFIN, J. (p. 3), delivered a separate
opinion concurring in the result.
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OPINION
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PER CURIAM. In this sentencing appeal, after two members of the panel agreed to an
opinion reversing the defendant’s 14-year-upward adjustment based specifically on conduct for
which the jury had acquitted the defendant, another panel of our court rendered an opinion in United
States v. Mendez, ____ F.3d ____, 2007 WL 2316498 (6th Cir., Aug. 15, 2007) to the contrary. The
panel in Mendez filed its opinion for publication before the majority released its opinion in the
instant case. The Mendez opinion reaches the opposite conclusion concerning the use of acquitted
conduct to enhance a criminal sentence. It continues to allow the use of acquitted conduct to
increase a sentence. If the majority in the instant case had filed its opinion, a conflict of opinions
would exist in the Sixth Circuit.
Therefore, the panel has agreed to affirm the sentence in the instant case, including the
enhancement based on acquitted conduct; but the panel strongly recommends that counsel for the
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defendant file a petition for en banc rehearing on the question of whether the continuing use of
acquitted conduct as a sentencing enhancement violates United States v. Booker, 543 U.S. 220
(2005), particularly in light of the language in Justice Stevens’ opinions at pages 240 and 278 and
Justice Breyer’s opinion in Booker at page 251.
Upon the filing of the en banc petition, the three members of the panel will strongly
recommend that the full court grant the en banc petition to review this important question. The
panel does not believe that the other issues raised by defendant justify reversal of the judgment
below.
Accordingly, for these reasons and based on the Mendez opinion, the panel affirms the
judgment of the District Court.
No. 05-6596 United States v. White Page 3
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CONCURRING IN THE RESULT
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GRIFFIN, Circuit Judge, concurring in the result. I concur in the result of the per curiam
opinion. I, too, view the “acquitted conduct” sentencing issue to be of exceptional importance to
our jurisprudence, thereby warranting rehearing en banc. FED. R. APP. P. 35(a)(2), 6 CIR. R. 35(c).
However, at this juncture, I am inclined to conclude that United States v. Mendez, —
F.3d —, 2007 WL 2316498 (6th Cir. Aug. 15, 2007), and United States v. Brika, 487 F.3d 450 (6th
Cir. 2007), were correctly decided. See also United States v. Horne, 474 F.3d 1004, 1006-07 (7th
Cir. 2007), cert. denied 127 S. Ct. 2957, 168 L. Ed. 2d 279, 75 U.S.L.W. 3662 (U.S. June 11, 2007);
United States v. Vaughn, 430 F.3d 518, 527 (2d Cir. 2005), cert. denied sub nom. Lindo v. United
States, 547 U.S. 1060, 126 S. Ct. 1665, 164 L. Ed. 2d 405, 74 U.S.L.W. 3560 (U.S. Apr. 3, 2006);
United States v. Magallanez, 408 F.3d 672, 683-85 (10th Cir. 2005), cert. denied 546 U.S. 955, 126
S. Ct. 468, 163 L. Ed. 2d 356, 74 U.S.L.W. 3230 (U.S. Oct. 11, 2005); United States v. Duncan, 400
F.3d 1297, 1304-05 (11th Cir. 2005), cert. denied 546 U.S. 940, 126 S. Ct. 432, 163 L. Ed. 2d 329,
74 U.S.L.W. 3229 (U.S. Oct. 11, 2005); United States v. Edwards, 427 F. Supp. 2d 17, 21 (D.D.C.
2006), aff’d 198 F. App’x 4 (D.C. Cir. 2006), cert. denied 127 S. Ct. 1815, 167 L. Ed. 2d 326, 75
U.S.L.W. 3497 (U.S. Mar. 19, 2007). Cf., United States v. Flores, 477 F.3d 431, 438-39 (6th Cir.
2007); United States v. Mickens, 453 F.3d 668, 673 (6th Cir. 2006); United States v. Stone, 432 F.3d
651, 655 (6th Cir. 2005).