United States v. Ramsey, Joseph D. ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2316
United States of America,
Plaintiff-Appellee,
v.
Joseph D. Ramsey,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 99-CR-40096-JPG--J. Phil Gilbert, Judge.
Argued September 27, 2000--Decided January 18, 2001
Before Posner, Coffey, and Kanne, Circuit Judges.
KANNE, Circuit Judge. On February 3, 2000,
Joseph Ramsey pleaded guilty to three counts of
distribution of crack cocaine in violation of 21
U.S.C. sec. 841(a)(1). The Pre-Sentence
Investigation Report ("PSR") recommended applying
a two level sentencing enhancement because of
Ramsey’s use of a minor to commit the crimes,
pursuant to United States Sentencing Guidelines
(U.S.S.G.) section 3B1.4. Over Ramsey’s
objections, the district court applied the
enhancement and sentenced Ramsey to 121 months
imprisonment./1 On appeal, Ramsey objects to the
application of the enhancement, arguing that he
did not "use" his brother within the definition
of section 3B1.4. He also contends that the court
erred by failing to apply the rule of lenity. As
the district court’s application of the
enhancement was proper, we affirm.
I. History
On November 12, 1999, a confidential source
working for the Federal Public Housing Drug Task
Force in Cairo, Illinois, notified Federal Bureau
of Investigation ("FBI") agents in Carbondale,
Illinois, that the defendant-appellant, nineteen
year old Joseph Ramsey ("Ramsey"), was involved
in the selling of crack cocaine. Through the
confidential source, the FBI agents made
arrangements for Ramsey to sell crack cocaine to
an undercover agent in Cairo. On November 16,
Ramsey traveled with the confidential source and
his sixteen year old brother Duane Ramsey
("Duane") to Fort Defiance Park in Cairo where
the sale was to take place. When they reached the
park, Ramsey, the confidential source, and Duane
all got out of the car, though only Ramsey and
the confidential source approached the agent;
Duane stayed behind. The undercover agent did not
initially know who Duane was, as he had only
expected Joseph and the confidential source.
During the transaction, Ramsey did all the
talking while Duane remained in the background.
After the undercover agent arranged to make the
purchase with Ramsey, Ramsey called Duane over
and told him to go ahead and show the undercover
agent the crack cocaine. Duane pulled the crack
cocaine out of his pocket and gave it to the
undercover agent. The agent then gave the money
to Duane. The agent then asked Ramsey if he could
supply two more ounces of crack cocaine. Ramsey
replied that he could, and agreed to be contacted
through the confidential source.
On November 17, the parties met for the second
time at Fort Defiance Park. Once again, Ramsey
negotiated the final details of the transaction.
He told the agent how much crack cocaine he and
Duane had brought and agreed with the agent on a
price. Ramsey then motioned to Duane to provide
the crack cocaine to the agent, and the agent
gave Duane the money.
Upon entering their car, Ramsey and Duane were
taken into custody by law enforcement agents who
had been providing surveillance. After waiving
his constitutional rights, Ramsey admitted that
he and his brother had sold crack cocaine to the
undercover agent on November 16 and 17. Ramsey
told the agents that, at the time he was
contacted to sell the crack cocaine, he did not
have the quantity that the individual wanted to
buy. Ramsey then went to Duane and arranged for
him to provide the rest of the crack cocaine
needed for the sale. When the agents asked Ramsey
why he was the one doing all the talking, he
responded that Duane was simply too scared to do
so. Ramsey also admitted that he had sold in
excess of fifty grams of crack cocaine in the two
years prior to his arrest, not counting the
amount delivered to the undercover agent on
November 16 and 17.
On February 3, 2000, Ramsey pleaded guilty to
three counts of distribution of crack cocaine. A
PSR was submitted on March 27, recommending
application of the two level enhancement pursuant
to U.S.S.G. section 3B1.4 based on Ramsey’s use
of his juvenile brother in the commission of two
of the distributions. U.S. Sentencing Guidelines Manual
sec. 3B1.4 (1998). On April 18, Ramsey filed
objections to the recommendation. The probation
office submitted an Addendum to the PSR
maintaining the position that the enhancement
should be applied.
On May 12, after reviewing the objections and
hearing oral argument, the district court found
that Ramsey did use his younger brother Duane
within the meaning of section 3B1.4, noting that
Ramsey directed, commanded, and encouraged his
minor brother. The court thus overruled
Defendant’s objection and applied the two level
enhancement. Ramsey appeals this application.
II. Analysis
Joseph Ramsey contends that the district court
committed error in increasing his total offense
level by two points pursuant to U.S.S.G. section
3B1.4. Ramsey argues that he did not direct or
command the actions of his juvenile brother. He
thus contends that by applying the enhancement to
the facts of this case, the district court
misinterpreted the meaning of "use." On appeal
Ramsey also argues that the language in section
3B1.4 is ambiguous, and that the rule of lenity,
which requires ambiguity to be resolved in favor
of the criminally accused, should be applied. The
nature of the interaction between Ramsey and his
juvenile brother is a question of fact, which we
review for clear error. See United States v.
Bailey, 227 F.3d 792, 801 (7th Cir. 2000); United
States v. Vivit, 214 F.3d 908, 914 (7th Cir.
2000). We review the district court’s
interpretation of section 3B1.4 de novo. See
Vivit, 214 F.3d at 914; United States v. Brack,
188 F.3d 748, 765 (7th Cir. 1999).
A. The Use of a Minor Enhancement
1. Validity of Section 3B1.4
As a preliminary matter, we feel compelled to
address the validity of section 3B1.4. Though
Ramsey did not challenge the validity of the
provision before this court,/2 the Sixth Circuit
has addressed the issue, and found the provision
to be inapplicable to defendants who have not
attained the age of twenty-one. Upon
consideration, we respectfully disagree with the
Sixth Circuit, and find that the Sentencing
Commission did not abuse its discretion when it
promulgated section 3B1.4 to include all
defendants, regardless of age.
Congress created the Sentencing Commission in
order to "establish sentencing policies and
practices for the Federal criminal justice
system." 28 U.S.C. sec. 991(b)(1) (1994); see
also Mistretta v. United States, 488 U.S. 361,
367-70, 109 S. Ct. 647, 102 L. Ed. 2d 714 (1989).
In addition to promulgating a set of sentencing
guidelines, see sec. 994(a)(1), the Commission is
expected to periodically review the guidelines,
and revise them as necessary. See sec. 994(o).
Any amendments to the guidelines are submitted to
Congress and automatically take effect 180 days
after submission, unless Congress modifies or
disapproves an amendment. See sec. 994(p).
Ten years after the creation of the Commission,
Congress passed the Violent Crime Control and Law
Enforcement Act of 1994. Pub. L. No. 103-322,
1994 HR3355, sec. 140008, 108 Stat. 2033 (1994).
This Act included a large list of directives to
the Sentencing Commission commanding the
amendment of existing guidelines, and
promulgation of new ones. The precursor to
section 3B1.4 directed the Sentencing Commission
"to promulgate guidelines or amend existing
guidelines to provide that a defendant twenty-one
years of age or older who has been convicted of
an offense shall receive an appropriate sentence
enhancement if the defendant involved a minor in
the commission of the offense." Id. sec. 140008
(emphasis added). The Commission undertook this
task, but when it promulgated the new guideline,
it eliminated the requirement that the defendant
be at least twenty-one to be subject to the
enhancement. Thus, section 3B1.4 reads as
follows: "If 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,
increase by two levels." U.S.S.G. sec. 3B1.4
(emphasis added). The resulting enhancement is
thus applicable to defendants of all ages. See
id.; see also Butler, 207 F.3d at 844 (Clay, J.).
The Supreme Court has held that "the Commission
enjoys significant discretion in formulating
guidelines." Mistretta v. United States, 488 U.S.
at 377. In United States v. Hill, 48 F.3d 228(7th Cir. 1995), we stated that when the
Commission is "exercising this delegated power,
the courts cannot interfere or second-guess
unless the Commission oversteps constitutional
bounds." Id. at 231. The Eighth Circuit took this
language further, holding that, "[g]iven
Congress’s supervisory role, the Sentencing
Commission’s formulation of the Guidelines is not
subject to judicial review unless the Commission
oversteps constitutional bounds." United States
v. Vincent, 167 F.3d 428, 431 (8th Cir. 1999)
(citing Hill, 48 F.3d at 231), cert. denied, 528
U.S. 848 (1999). Since our decision in Hill,
however, the Supreme Court has clarified the
level of discretion accorded to the Sentencing
Commission. "Broad as that discretion may be . .
. it must bow to the specific directives of
Congress. In determining whether [the Amendment]
accurately reflects Congress’ intent, we turn, as
we must, to the statutory language." United
States v. LaBonte, 520 U.S. 751, 757, 117 S. Ct.
1673, 137 L. Ed. 2d 1001 (1997) (finding that the
Commission’s revised commentary to a guideline
was inconsistent with the plain language of the
original congressional directive, and thus had to
give way. LaBonte).
The issue, then, is whether the Commission
obeyed the specific directive of Congress. In the
original statutory language, Congress directed
that an enhancement be applied to all defendants
age twenty-one and older. See Pub. L. No. 103-
322, sec. 140008. The Sixth Circuit found that by
eliminating the age restriction, section 3B1.4
"was a direct overruling of an explicit
Congressional declaration." Butler, 207 F.3d at
850 (Jones, J., concurring). Because the
Commission did not obey the specific
congressional directive, the court would not
apply the guideline. See id. at 849-52. Yet,
another view is possible: that the Commission did
promulgate a guideline that encompassed the
directive of Congress. Under section 3B1.4,
defendants age twenty-one or older will receive
a sentence enhancement if the defendant used a
minor in the commission of the offense. The
Commission simply expanded the provision to
encompass a greater number of defendants./3 This
and at least one other circuit have found that it
is within the Commission’s statutory mandate to
legislate more broadly than Congress. See United
States v. Lauer, 148 F.3d 766, 770 (7th Cir.
1998) (upholding the Commission’s discretion to
broaden the statutory definition of "financial
institution" through the Guidelines’ commentary);
United States v. Ferrarini, 219 F.3d 145, 159-60
(2nd Cir. 2000) (holding that "the Commission was
fully empowered, under [28 U.S.C. sec. 994], to
adopt the definition of ’financial institution’
currently contained in the Guidelines, even
though the definition is broader than that
suggested [by Congress]"). As long as the
Commission’s guideline is not "at odds" with the
congressional directive, it is within the
commission’s discretion to enlarge the category
of defendants to whom an enhancement will apply.
See LaBonte, 520 U.S. at 757; Ferrarini, 219 F.3d
at n.11; see also Mistretta, 488 U.S. at 377.
Further, the Commission is governed by more
than just the congressional directive to amend
the guidelines. The Commission’s governing
statute requires it to consider the possible
relevance of age in establishing categories of
defendants for use in the guidelines. See 28
U.S.C. sec. 994(d)(1) (1994). With respect to
this particular enhancement, Congress also
directed the Commission to consider "the possible
relevance of the proximity in age between the
offender and the minor(s) involved in the
offense." Violent Crime Control and Law
Enforcement Act of 1994, Pub. L. No. 103-322,
sec. 140008(b)(4), 108 Stat. 1796 (1994).
Further, one of the Commission’s responsibilities
is to ensure uniformity in sentencing. See 28
U.S.C. sec. 991(b)(1)(B) (1994). It is possible
that, after considering the relevance of age to
this enhancement, the sentencing commission
concluded that a nineteen year old defendant
exerts as much influence over the minors he
recruits as does a twenty-one year old defendant,
with the potential to cause an equal amount of
harm. The two categories of defendants would thus
deserve equal punishment.
The argument that the Commission obeyed the
congressional directive is weakened somewhat by
the legislative history of section 140008. The
original Senate version of the provision provided
for the enhancement to apply to defendants
eighteen years of age or older./4 Violent Crime
Control and Law Enforcement Act of 1993, Senate
amendment no. 1170, 103rd Cong., 139 Cong. Rec.
S15,638 (1993). This proposal was essentially
rejected by the proposed House versions, which
all state that the enhancement would apply only
to defendants twenty-one years or older./5 See,
e.g., 140 Cong. Rec. H8772-03 (1994); 140 Cong. Rec.
H7372-01 (1994). Though we found no discussion in
the record explaining the change, the eighteen
year old formulation was eventually rejected in
favor of the narrower formulation. The final
version of the provision, codified in Pub. L.
103-322, section 140008, used the House’s twenty-
one years or older formulation.
Further, discussions about the "solicitation of
a minor" enhancement often referenced a group of
provisions providing for mandatory minimum
sentences for defendants twenty-one or older.
Minimum sentences were discussed for defendants
who sell drugs to a juvenile, buy drugs from a
juvenile, use a juvenile to sell drugs, or use a
juvenile to avoid detection of a drug offense.
See, e.g., 140 Cong. Rec. S12496-01 (1994). The age
limit thus seems to have been, at least
initially, part of a coordinated plan to punish
twenty-one year old (or older) defendants.
Admittedly, it is possible that the Commission
might not have given sufficient weight to the
congressional directive. However, "Congress’
expression of intent as to sec. 3B1.4 did not
begin and end with its enactment of sec. 140008."
Butler, 207 F.3d at 845 (Clay, J.). Congress
could have rejected or amended the Guideline
before it went into effect. The Commission
submitted the draft of section 3B1.4 to Congress
on May, 1, 1995, in the form of Amendment 527.
See Amendments to the Sentencing Guidelines for
the United States Courts, 60 Fed. Reg. 25074,
25086 (May 10, 1995). The Commission stated that
the amendment implemented the original
congressional directive in a slightly broader
form. Id. On October 30, 1995, Congress
considered and rejected some of the amendments
proposed on May 1, 1995, see Pub. L. No. 104-38,
109 Stat. 334 (1995), but did not act to modify
or disapprove Amendment 527./6 Thus, the
amendment became effective on November 1, 1995.
See U.S.S.G. app. C (1998). Particularly in light
of its rejection of other proposed amendments, by
not taking action with respect to section 3B1.4,
Congress implicitly accepted the Commission’s
elimination of the age restriction./7
We thus find that the Sentencing Commission did
not misread congressional intent, but rather was
exercising reasonable discretion in promulgating
a guideline that reaches defendants under age
twenty-one. We will now consider the
appropriateness of applying the enhancement to
Mr. Ramsey.
2. Interpretation of Section 3B1.4
To determine the meaning of the guideline at
issue, we begin with the language of the statute.
See United States v. Ron Pair Enters., Inc., 489
U.S. 235, 241, 109 S. Ct 1026, 103 L. Ed. 2d 290(1989). Section 3B1.4 provides for a two-level
sentence enhancement "[i]f the defendant used or
attempted to use a person less than eighteen
years of age to commit the offense." U.S.S.G.
sec. 3B1.4. Application note one to section 3B1.4
explains that "’used or attempted to use’
includes directing, commanding, encouraging,
intimidating, counseling, training, procuring,
recruiting, or soliciting." Id. cmt. n.1. The
Supreme Court addressed the interpretation of the
word "use" in another statutory scheme and
concluded that the word "must be given its
’ordinary or natural’ meaning." Bailey v. United
States, 516 U.S. 137, 145, 116 S. Ct. 501, 133 L.
Ed. 2d 472 (1995) (quoting Smith v. United
States, 508 U.S. 223, 113 S. Ct. 2050, 124 L. Ed.
2d 138 (1993)). As illustrated by reference to a
dictionary, the verb "use" means "to avail
oneself of; to employ; to utilize; to carry out
a purpose or action by means of; to put into
action or service, especially to attain an end."
Black’s Law Dictionary 1541 (6th ed. 1990) (citing
State v. Howard, 221 Kan. 51, 557 P.2d 1280, 1281
(Kan. 1976)). In addition we must consider
section 3B1.4 in light of its placement within
the Sentencing Guidelines, as "the meaning of
statutory language, plain or not, depends on
context." King v. St. Vincent’s Hosp., 502 U.S.
215, 221, 112 S. Ct. 570, 116 L. Ed. 2d 578(1991); see also Shell Oil Co. v. Iowa Dept. of
Revenue, 488 U.S. 19, 26, 109 S. Ct. 278, 102 L.
Ed. 2d 186 (1988).
This court has had occasion to review the
application of section 3B1.4 numerous times, and,
in accord with the above definitions, has
interpreted "used or attempted to use" fairly
broadly. Most recently, in United States v.
Vivit, we explained that the defendant "’used
minors in the commission of his crimes’ if his
affirmative actions involved minors in his
criminal activities." Vivit, 214 F.3d at 920(quoting United States v. Brack, 188 F.3d 748,
765 (7th Cir. 1999). This test can be met when
the minor is a partner in the criminal offense,
see United States v. Benjamin, 116 F.3d 1204,
1206 (7th Cir. 1997), as well as when the minor’s
role is subordinate to that of the criminal
defendant. In Benjamin, we indicated that a
defendant who partners with a minor will be found
to have used that minor to commit his crime in
the sense contemplated by section 3B1.4 . See id.This conclusion is in accord with application
note one, which states that "use" includes
directing and encouraging. By forming a
partnership with a minor, a criminal defendant is
undeniably encouraging that minor to commit a
crime. The fact that the minor is a voluntary
participant and equal does not make the act
socially acceptable.
In this respect, our interpretation of section
3B1.4 differs from that of the Sixth Circuit. In
United States v. Butler, 207 F.3d 839 (6th Cir.
2000) (Jones, J., concurring), the Sixth Circuit
declined to follow our decision in Benjamin. Id.
at 847-49. The court in Butler instead held that
"the term ’use’ requires a showing of more than
a mere criminal partnership." Id. at 849 (stating
that "’using’ a minor to carry out criminal
activity entails more than being the equal
partner of that minor in committing a crime").
This holding seemed partially driven by the fear
that ruling otherwise would create a strict
liability enhancement. See id. at 848. As the
court stated, "if numerous adult defendants
participated in a crime along with a minor, every
single one of the adult defendants would be
subject to the two level enhancement, regardless
of the roles they played in involving the minor
in the crime." Id. at 848. Our position, however,
does not automatically lead to the conclusion
feared by the Sixth Circuit. The decision in
Benjamin turned on the fact that there was one
defendant who was found to have conspired with a
minor. Because only two people were involved in
the commission of the crime, there was no need to
examine who "used" the minor. However, that
decision did not eliminate the requirement that
a defendant must affirmatively involve a minor in
order to be eligible for the enhancement. See
Vivit, 214 F.3d at 920. Thus it is possible that,
in a case involving multiple defendants and a
minor, some might be found to have used the minor
while others would not. For example, a defendant
who was not aware that the minor was
participating, and who had no contact with the
minor, probably would not be found to have used
the minor. This circuit’s interpretation of
section 3B1.4 does not remove the need for case
by case analysis; the defendant must still take
affirmative acts to involve the minor in the
commission of the offense. See Butler, 207 F.3d
at 848; see Vivit, 214 F.3d at 920./8
Children often look up to their older siblings,
friends, and acquaintances. It is not
unreasonable to assume that Congress wanted to
discourage putative defendants from involving
minors in criminal activity, as equals or
otherwise. To shield defendants from the
application of this provision simply because the
minor that they solicited is given a substantial
role in the commission of the offense would be a
blow to the purpose of the provision: to
discourage defendants from involving minors in
the commission of crimes. Thus, regardless of
whether the minor is a partner or a subordinate,
the enhancement will be applied where the
defendant affirmatively involved the minor in the
commission of a crime.
Under our test, the inquiry is whether the
defendant affirmatively involved a minor in the
commission of an offense, regardless of whether
the minor is a partner to the offense or is in a
subordinate position. In the instant case, the
correct inquiry is thus whether Ramsey directed,
commanded, encouraged, or recruited Duane in
order to commit these drug offenses.
3. Application of Section 3B1.4
The district court correctly determined that
this factual situation falls within the purview
of section 3B1.4. First, the factual findings
underlying the application of the sentencing
enhancement were not clearly erroneous. While
Ramsey alleges that there is no evidence to
support the finding that he directed, commanded,
or recruited Duane, the record indicates
otherwise. Ramsey made the initial contact with
the confidential source. Ramsey then recruited
Duane into the commission of the crime by asking
him to supply the additional crack cocaine needed
to complete the sale. During the transactions on
November 16 and 17, Ramsey made all of the
arrangements with the undercover agent, and did
all of the talking. Duane was called over by
Ramsey only after the final arrangements were
made. At that time, Ramsey directed Duane to show
the undercover agent the crack cocaine. On both
occasions, Duane complied, gave the crack cocaine
to the agent, and accepted the agent’s money.
None of these facts are disputed by Ramsey.
Second, the district court did not err in its
interpretation or application of section 3B1.4.
The transcript from the sentencing hearing
indicates that the district court focused on the
"directing, commanding, [and] encouraging"
language of the guideline’s application notes.
From the above facts, it is clear that Ramsey did
all of these things. Further, Ramsey took
numerous affirmative actions to involve his
brother, a minor, in the distribution of crack
cocaine, action which would constitute
"recruiting." U.S.S.G. ch. 3, pt. B, cmt. n.1.
Though a partnership relationship would not
prevent application of the enhancement, as
explained above, the facts indicate that the
minor was in a subservient position to Ramsey,
making this a case clearly within the meaning of
section 3B1.4, even for our colleagues in the
Sixth Circuit.
Ramsey argues that Vivit and the cases that it
relied upon are all distinguishable from the
present case. We do not agree. Vivit involved a
medical doctor who directed two minors to falsify
attendance sheets so that he could file false
insurance claims on their behalf. United States
v. Vivit, 214 F.3d 908 (7th Cir. 2000). By
directing the minors to create false records, the
doctor involved minors in his crime, and thus
used them within the definition of section 3B1.4.
Ramsey attempts to distinguish the present case
by focusing on the substantial age differential
between the minors and the defendant in Vivit, as
compared to the three years that separate Ramsey
and his brother Duane. First, Ramsey suggests
that the minors in Vivit would not necessarily
have known what they did was illegal (due to the
nature of the crime--fraud) whereas the minor
here was well aware of the illegality of his
acts. Even assuming the truth of this assertion,
the distinction is not relevant. The enhancement
in section 3B1.4 focuses on whether the defendant
used a minor in the commission of a crime, not
whether the minor knew that he was being used to
commit a crime. While Ramsey is perhaps
implicitly arguing that a minor who understands
the illegality of his action would be a partner
to the crime, this would not render the guideline
inapplicable, as noted above. Second, Ramsey
argues that Vivit is distinguishable since the
defendant there was presumably much older and
therefore capable of exercising considerable
persuasion over the minors; the implication of
this argument is that the enhancement should not
be applied when the defendant and a minor are
close in age. We do not agree. As the court noted
at oral argument, the closeness in age might have
led the district court to consider granting a
downward departure, but it does not prevent the
application of section 3B1.4.
Ramsey’s attempts to distinguish other cases are
also unavailing. In United States v. Benjamin,
116 F.3d 1204 (7th Cir. 1997), the court found
that the defendant had conspired with a minor and
that the minor was thus his partner in crime. See
id. at 1206. This led to the conclusion that the
minor was used by the defendant. See id. Ramsey
argues that, as there is no charge of conspiracy
in the instant case, Benjamin is not controlling.
However, we rely on Benjamin to show that a minor
who was a partner can be considered "used" by a
defendant; this is true regardless of whether
there is a conspiracy or not. Further, the
introductory comment to Chapter 3, Part B of the
sentencing guidelines makes clear that "the
determination of a defendant’s role in the
offense is to be made on the basis of all
[relevant] conduct . . . and not solely on the
basis of elements and acts cited in the count of
conviction." U.S.S.G. ch. 3, pt. B, introductory
cmt. The facts here could support a finding of
conspiracy, thus making Benjamin an identical
situation.
Finally, United States v. Brack, 188 F.3d 748(7th Cir. 1999), presents a situation very close
to the present one. During two telephone
conversations, the defendant in Brack asked a
minor to bring her crack cocaine. This court held
that this constituted "use" of a minor,
regardless of the fact that the minor was a
willing participant in the crime. In fact, there
the minor was "a high-ranking, salaried member of
[the defendant’s] organization." Id. at 765. Thus
Ramsey’s argument that Duane was not "used"
simply because he was a willing participant is
not tenable.
The District Court thus did not err in
increasing Ramsey’s sentence by two levels due to
his use of his minor brother Duane in the
commission of his drug offenses.
B. Rule of Lenity
On appeal, Ramsey argues that the term "use" in
section 3B1.4 is ambiguous and that the district
court should have applied the rule of lenity.
Ramsey admits that he did not specifically
request that this rule be applied, but contends
that his objections to the PSR and counsel’s
argument at sentencing were enough to preserve
the issue for appeal. He contends that, at worst,
his failure to cite to the rule should be
construed as a forfeiture, subjecting the
sentencing decision to plain error review. The
government argues that Ramsey’s failure to raise
this issue in the district court operates as a
waiver, which precludes review by this court. We
agree with the government, and find that Ramsey’s
failure to raise the rule of lenity at the
sentencing hearing operated as a waiver.
Waiver occurs when the defendant "intentionally
relinquishes a known right." United States v.
Staples, 202 F.3d 992, 995 (7th Cir. 2000)
(citing, inter alia, United States v. Olano, 507
U.S. 725, 730-734, 113 S. Ct. 1770, 123 L. Ed. 2d
508 (1993)). During argument before the district
court, Ramsey did not argue that section 3B1.4
was ambiguous. Instead, he chose to adopt a
specific interpretation of the term "use" and
argue for the application of his interpretation.
The district court disagreed with Ramsey and
adopted a contrary interpretation, prompting the
instant appeal. Thus, not only did Ramsey never
mention the rule of lenity in the district court,
but he never even argued that the meaning of
"use" was ambiguous. Asserting now that the rule
of lenity should be applied is simply the
Defendant’s last ditch effort to reduce his
sentence.
III. Conclusion
The district court did not err by increasing
the defendant’s total offense level by two points
for using a minor in the commission of his
offense. That court’s factual findings were not
erroneous and their interpretation and
application of U.S. Sentencing Guideline section
3B1.4 was correct. We AFFIRM.
/1 In addition, the district court sentenced Ramsey
to a four-year term of supervised release and
imposed a $300 special assessment and a $300
fine.
/2 In his brief before this court, Ramsey relied
upon United States v. Butler, 207 F.3d 839 (6th
Cir. 2000), for the proposition that a defendant
who partnered with a minor would not be
considered to have "used" that minor. Defendant’s
brief conceded that the court in Butler had
reviewed the legislative history and found sec.
3B1.4 to be valid; thus a court could apply the
enhancement to defendants under the age of
twenty-one. This concession, however, was
inappropriate. In Butler, the Sixth Circuit
issued two opinions. The opinion relied upon by
the Defendant, Judge Clay’s opinion, did not
constitute the opinion of the court on the issue
of the validity of sec. 3B1.4 (Part II.B.1). The
Sixth Circuit’s opinion on the validity of sec.
3B1.4 is actually found in Judge Jones’
concurring opinion, which was joined by Judge
Cole. See Butler, 207 F.3d at 849-52 (Jones, J.,
concurring). Judge Jones’ opinion found that the
text of sec. 3B1.4 was not a sufficiently
reasonable implementation of the congressional
directive. See id.; infra notes 3 and 7 and
accompanying text. As sec. 3B1.4 did not comport
with congressional intent, the court remanded for
imposition of a new sentence in accordance with
the original congressional directive. See Butler,
207 F.3d at 852 (Jones, J., concurring).
/3 The United States Government, in its submissions
to the Sixth Circuit in Butler, contended that
the removal of the age limitation was reasonable
because the Commission simply "’implemented
Congress’s directive in a slightly broader fashion.’"
Butler, 207 F.3d 839, 850 (Jones, J., concurring)
(quoting Gov’t Br. at 9). The Sixth Circuit found
this argument unpersuasive. Id. at 850-851.
First, they found that "reflexively relying on
the commission’s characterization of its own
amendment would abandon our judicial role ’in
determining whether [the] [a]mendment accurately
reflects Congress’ intent.’" Id. at 850 (quoting
LaBonte, 520 U.S. at 757, 117 S. Ct. 1673).
Second, they found that "the limit was a core
aspect of th[e] directive." Id. at 851.
/4 There was a rather lengthy discussion on this
enhancement at the time of its introduction on
the floor. Senator Pressler, the author of the
amendment, said that it dealt "with the
particularly heinous circumstance of an adult
criminal using children to commit their crimes."
139 Cong. Rec. S15638 (1993). He mentioned gang
violence in particular as one area of concern.
/5 Congressional Record indicates that the House
yielded to the Senate section. See 140 Cong. Rec.
H8772-03 (1994); 140 Cong. Rec. H7372-01 (1994).
However, we could not find any House version
adopting the Senate version of the proposed
amendment.
/6 As noted by Judge Clay’s opinion in Butler,
"Congress disapproved of a proposed amendment
that would have eliminated the 100:1 sentencing
ratio that treats one who deals in a given
quantity of crack cocaine the same as it treats
one who deals in 100 times as much powder
cocaine." Butler, 207 F.3d at n.1 (Clay, J.)
(citing United States v. Gaines, 122 F.3d 324,
327 (6th Cir. 1997)).
/7 But see Burns v. United States, 501 U.S. 129,
136, 111 S. Ct. 2182, 115 L. Ed. 2d 123 (1991)
("’Not every silence is pregnant.’") (quoting
Illinois Dept. of Public Aid v. Schweiker, 707
F.2d 273, 277 (7th Cir. 1983)). In Butler, the
Sixth Circuit cited Burns for the proposition
that "silence should not be ’credited when it is
contrary to all other textual and contextual
evidence of congressional intent.’" 207 F.3d at
851 (Jones, J., concurring) (quoting Burns, 501
U.S. at 136). The court found that the original
directive was "sufficiently clear to overcome an
argument" of congressional silence. Id. Judge
Jones noted that it is the responsibility of the
courts to "squar[e] the enacted guideline with
the original statutory language." Id. (citing
Burns, 501 U.S. at 136). Inferring too much from
silence "would lead courts wholly to abandon
their role of assessing whether enacted
guidelines comport with congressional intent."
Id. (citing LaBonte, 520 U.S. at 757).
/8 The Sixth Circuit also found that a strict
liability enhancement would not comport with the
statutory scheme. As noted above, we do not agree
that our view creates a strict liability
enhancement. Further, we find that interpreting
the word "use" to encompass situations where the
defendant partners with a minor is consistent
with the statutory scheme. Part B of the
Sentencing Guidelines is entitled "Role in the
Offense" and "provides adjustments to the offense
level based upon the role the defendant played in
committing the offense." U.S.S.G. ch. 3, pt. B,
introductory cmt. (1998). One other enhancement
in Part B is similar to the use of a minor
section, Abuse of Position of Trust or Use of a
Special Skill, in that both punish defendants for
abusing a superior social position. See U.S.S.G.
sec. 3B1.3, cmt. background (1998) (explaining
that the enhancement is justified because the
defendant’s position or skill level makes his
behavior more blameworthy). The abuse of position
of trust enhancement has been applied to
situations where the criminal defendant partnered
with a willing participant. See United States v.
Polichemi, 219 F.3d 698, 713-14 (7th Cir. 2000),
cert. denied, Neal v. United States, 121 S. Ct.
485, 69 U.S.L.W. 3333 (2000). Just as an attorney
who partners with a client to commit a crime
would receive an enhancement under sec. 3B1.3 for
abuse of a position of trust, see id. at 713, an
adult who partners with a minor to commit a crime
will receive an enhancement under sec. 3B1.4 for
use of a minor.