United States v. Messino, Christopher ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-1411, 02-1607 & 02-3641
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHRISTOPHER B. MESSINO, CHRISTOPHER R.
MESSINO, and CLEMENT A. MESSINO,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 93 CR 294—David H. Coar, Judge.
____________
ARGUED FEBRUARY 23, 2004—DECIDED AUGUST 31, 2004
____________
Before BAUER, EASTERBROOK, and KANNE, Circuit Judges.
BAUER, Circuit Judge. Most of the facts of the trial in this
case are discussed in numerous prior opinions of this court.
United States v. Michelle’s Lounge, 39 F.3d 684 (7th Cir.
1994); United States v. Messino, 55 F.3d 1241 (7th Cir.
1995); United States v. Underwood, 122 F.3d 389 (7th Cir.
1997); United States v. Michelle’s Lounge, 126 F.3d 1006(7th Cir. 1997); United States v. Messino, 181 F.3d 826 (7th
Cir. 1999). For our present purposes, we can reduce the
discussion to the following:
2 Nos. 02-1411, 02-1607 & 02-3641
I. Background
From 1980 to 1991, Christopher R. Messino (“Dick”),
Christopher B. Messino (“Chris”), Clement Messino (“Clem”),
and others were embroiled in a wide-ranging conspiracy to
distribute, and possess with intent to distribute, cocaine.1
The rough contours of the conspiracy involved purchasing
kilogram-quantities of cocaine in Florida and transporting
it to Chicago for distribution.
On November 18, 1993, a federal grand jury returned an
indictment made up of 13 counts. At issue in this appeal,
Count One charged Dick, Clem, Chris, Michael Homerding,
Donald Southern, William Underwood, Blaise Messino, Paul
Messino, Thomas Hauck, Gray Chrystall, Daniel Shoemaker,
and Lawrence Thomas with conspiracy to distribute and
possess with intent to distribute cocaine in violation of 21
U.S.C. §§ 841(a)(1) and 846. Counts eight, nine and twelve
charged Chris with distributing cocaine in two separate
transactions, and with engaging in interstate travel in aid
of the distribution conspiracy. Count eleven charged Clem
with money laundering in connection with his purchase of
real estate in Monee, Illinois.
After a convoluted procedural course through the courts,
including three trials, the defendants in this case were con-
victed on many of the counts in the indictment. They now
appeal various aspects of their convictions and/or sentences.
II. Discussion
A. Christopher R. Messino (“Dick”)
Blakely and Booker explain that “the ‘statutory maximum’
for Apprendi purposes is the maximum sentence a judge
1
As all three defendants have the same last name, we use their
familiar names to distinguish among them.
Nos. 02-1411, 02-1607 & 02-3641 3
may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant.” Blakely v.
Washington, 124 S. Ct. 2531, 2537 (2004); United States v.
Booker, 375 F.3d 508, 2004 WL 1535858, at *2 (7th Cir.
July 9, 2004). In this case, the jury found Dick guilty of
conspiring to distribute and possession with the intent to
distribute at least 500 grams but less than five kilograms
of cocaine. At sentencing however, the judge found, by a
preponderance of the evidence, that Dick was responsible
for a conspiracy involving 95 kilograms of cocaine. The
judge also made findings when he imposed enhancements
for obstruction of justice and for being an organizer. That
puts this case squarely in the holdings of Blakely and Booker.
We therefore, vacate Dick’s sentence and remand the case
for resentencing which comports with this opinion.
B. Christopher B. Messino (“Chris”)
Chris makes two arguments in his only brief to this court,
filed on July 9, 2003; both concerning his sentencing
enhancements. In reviewing these claims as presented, we
review the findings of fact for clear error and application of
those facts to the guidelines de novo. United States v. Irby,
240 F.3d 597, 599 (7th Cir. 2001); accord United States v.
Bass, 325 F.3d 847, 850 (7th Cir. 2003) (“This court reviews
de novo whether the district court addressed the proper
factors in imposing an obstruction of justice enhancement,
and reviews for clear error the court’s findings of fact”). We
will find a district court’s findings clearly erroneous if we
are left with the firm and definite conviction that the court
made a mistake. Id.
1. Obstructing or Impeding the Administration of Justice
Chris begins with an argument that the trial court erred
in imposing an obstruction of justice enhancement. The first
4 Nos. 02-1411, 02-1607 & 02-3641
part of the argument centers on the fact that his offending
statements were immaterial to his own sentence and
conviction because they were made during his testimony at
the trial of co-defendants Dick and Clem Messino.
Chris was properly sentenced under the 2000 guidelines.
This court has noted that “[a]n enhancement under § 3C1.1
[Obstructing or Impeding the Administration of Justice]
may be imposed only if the court finds that the defendant
willfully obstructed or impeded the investigation, prosecu-
tion, or sentencing by way of conduct related to the defen-
dant’s offense or a closely related offense.” United States v.
King, 338 F.3d 794, 799 (7th Cir. 2003). This language tracks
the guideline itself. U.S.S.G. § 3C1.1. We have construed
“closely related” offenses to include a co-defendant’s trial.
United States v. Gonzalez, 319 F.3d 291, 299 (7th Cir. 2003).
Therefore, it matters not that the offending statements may
have been immaterial to his own guilt or sentencing. So,
this application of the judge’s findings to the guidelines was
proper.
The next question is whether the district court’s findings
of fact were clearly erroneous. In imposing the obstruction
enhancement at Chris’s sentencing, the district court judge
said, “I cannot square [Chris’s] trial testimoney at Dick and
Clem’s trial with either his statements at the plea hearing or
with his statements in the tape recorded conversations or
with the testimony of the other witnesses, many of the other
witnesses in this case.” A review of the record supports this
finding.
After a fairly lengthy argument on this enhancement, the
district court judge found, “I don’t believe that [Chris]
testified truthfully at trial with respect to Clem’s or his
father’s involvement. . . . I think that this defendant has
intentionally and methodically attempted to not [implicate]
them in these matters.” We agree.
The record clearly supports the factual predicate for a
finding of perjury, and therefore, an enhancement under
the guidelines. The enhancement was proper.
Nos. 02-1411, 02-1607 & 02-3641 5
2. Acceptance of Responsibility
Chris’s next argument is based on our reversal of his en-
hancement for obstruction of justice. He claims that since
the district court erred in imposing the obstruction of jus-
tice enhancement, he qualified for a reduction of his sen-
tence for acceptance of responsibility. We review for clear
error. United States v. Partee, 301 F.3d 576, 580 (7th Cir.
2002).
Application note four to section 3E1.1 of the sentencing
guidelines instructs, “[c]onduct resulting in an enhance-
ment under § 3C1.1 (Obstructing or Impeding the Adminis-
tration of Justice) ordinarily indicates that the defendant
has not accepted responsibility for his criminal conduct.” As
we discussed above, Chris properly received an enhancement
for obstruction of justice.
Application note one, subsection (h), to section 3E1.1 of the
sentencing guidelines says, “the timeliness of the defendant’s
conduct in manifesting the acceptance of responsibility” is
an appropriate factor in determining whether the defendant
qualifies for the reduction. While it is true that Chris
ultimately pleaded guilty to the charges, he did so only after
he was convicted in a jury trial. That conviction was
reversed “due to an impairment of the defendants’ rights of
peremptory challenges.” Underwood, 122 F.3d at 391. Based
on his obstruction of justice, and his not-so-timely plea of
guilty, we find that the district court did not err in denying
Chris a reduction for acceptance of responsibility.
C. Clement A. Messino (“Clem”)
1. Fatal Variance
Clem’s first argument is that the evidence showed mul-
tiple conspiracies as opposed to the one charged in the in-
dictment. Claims of fatal variance, such as this one, are
treated as an attack on the sufficiency of the evidence.
6 Nos. 02-1411, 02-1607 & 02-3641
United States v. Williams, 272 F.3d 845, 863 (7th Cir. 2001).
Even if the evidence at trial shows the existence of multiple
conspiracies, a fatal variance will not be found if a reason-
able juror could have found beyond a reasonable doubt that
the defendant was part of the single, charged conspiracy.
Id. We view the evidence in the light most favorable to the
government. Id. Furthermore, reversal is required only if
the defendant can show that the variance worked to
prejudice his defense. Id.When a defendant joins a conspiracy, he joins an agree-
ment, rather than a group. United States v. Townsend, 924
F.2d 1385, 1390 (7th Cir. 1991). An agreement need not be
explicit; a tacit agreement is sufficient to support a con-
viction for conspiracy. United States v. Clay, 37 F.3d 338,
341 (7th Cir. 1994). There is no bar to using circumstantial
evidence in proving the conspiracy’s agreement. Id. A
conspiracy may be shown by evidence which shows that the
co-conspirators embraced the criminal objective of the
conspiracy, United States v. Severson, 3 F.3d 1005, 1010
(7th Cir. 1993), that the conspiracy continued towards its
common goal, United States v. Mojica, 185 F.3d 780, 787
(7th Cir. 1999), and that there were cooperative relation-
ships, United States v. Collins, 966 F.2d 1214, 1221-24 (7th
Cir. 1992).
Clem makes too much of the statement, in a previous ap-
peal, that this case presented close questions on whether there
was one conspiracy or multiple conspiracies. Underwood, 122
F.3d at 391. A close call it may be, but properly left to the
jury and the jury ruled against him. Townsend, 924 F.2d at
1389.
Clem and Dick were charged in a cocaine distribution
conspiracy. Clem argues that they had completely separate
cocaine businesses. While it appears that Dick and Clem
had separate groups of customers, they relied on each other in
obtaining the cocaine for their distribution networks. There
were numerous incidents where Clem would run out of
Nos. 02-1411, 02-1607 & 02-3641 7
cocaine and buy ounce amounts from Dick. And, there were
times when Dick would run out of cocaine and he would buy
ounce amounts from Clem. These amounts were generally
stop-gap measures, which prevented their respective
customers from finding another source of drugs. These stop-
gap amounts allowed the distribution networks to flourish.
Dick and Clem used each other’s houses in Florida—
sometimes as a base of operations and at least once, Dick
picked up drugs from Clem’s condo. The brothers apparently
had free access to each other’s houses. They also referred
customers to each other and referred each other to sup-
pliers. Finally, there were instances when they would split
large amounts of cocaine between themselves.
Chris’s arrest in possession of three kilograms of cocaine
also supports a single conspiracy. Chris flew down to
Florida to pick up cocaine. When he arrived in Florida, he
went to Dick’s condo and told Dick that he was there to pick
up a car for Clem. The evidence shows that Dick knew the
purpose of Chris’s visit. Dick and Underwood drove Chris to
Clem’s Florida condo and helped Chris remove a tarp from
the car. Shortly thereafter, Chris began his drive back to
Chicago; he was arrested and found to be carrying three
kilograms of cocaine.
The charge, conspiracy to distribute cocaine, and the evi-
dence show that there was one overarching conspiracy. It is
of no import that there were also other conspiracies in
action. Townsend, 924 F.2d at 1389. The common goal of
the conspiracy was to distribute cocaine, and that, in this
case, required cooperation between Dick and Clem. As Clem’s
brief notes, “Factors relevant to determining whether a
defendant participated in a conspiracy include whether the
defendant’s acts rendered support to the co-conspirators, . . .
and whether he entered into a cooperative relationship with
the co-conspirators to assist in bringing about the objects of
the conspiracy.” Citing United States v. James, 40 F.3d 850,
8 Nos. 02-1411, 02-1607 & 02-3641
866 (7th Cir. 1994). The facts show that this is exactly what
happened. Without the support of the co-conspirators, Clem
could not have obtained or sold as much cocaine as he did.
Contrary to Clem’s assertions, Clem and Dick were not in
competition—at least not serious competition. If they were
competing, either one could have cut the other off— refuse
to sell them the stop-gap amounts, prevent the use of each
other’s Florida residences, and refuse to refer customers
and suppliers to each other.
Clem also claims that the transactions between himself
and Dick were merely buyer-seller transactions. In United
States v. Duff, 76 F.3d 122 (7th Cir. 1996), we discussed
how to assess whether a relationship is merely buyer and
seller.
Duff frames the issue as “whether the two groups have
agreed to advance a common goal, or whether instead each
has an independent objective that it can achieve on its own, or
at the expense of the other group.” Id. at 126. From the dis-
cussion above, it is clear that this was not a simple buyer-
seller relationship. The brothers’ cooperation advanced the
common goal of cocaine distribution and they could not have
conducted business nearly as well without such cooperation.
Looking at the evidence in the light most favorable to the
government, we have no difficulty in holding that a reason-
able juror could have found Clem guilty of the single,
charged conspiracy.
2. Jury Instructions on Multiple Conspiracies
Clem complains of the multiple conspiracy jury instruction
given at his trial. “We review a district court’s decisions with
respect to jury instructions for abuse of discretion, approv-
ing on appeal instructions that fairly and accurately
summarize the law and have support in the record.” United
States v. Jefferson, 334 F.3d 670, 672 (7th Cir. 2003) (citation
Nos. 02-1411, 02-1607 & 02-3641 9
and internal quotations omitted). Clem first argues that his
case is distinguishable from the cases which the govern-
ment relied on in support of the instruction—United States
v. Nava-Salazar, 30 F.3d 788 (7th Cir. 1994), and United
States v. Wilson, 134 F.3d 855 (7th Cir. 1998). Secondly, he
claims that the phrasing of the instruction lessened the
government’s burden of proof from that required by Wilson
and Nava-Salazar.
First, while Nava-Salazar and Wilson are not on all fours
with Clem’s case, they do deal with sub-conspiracies as a
part of a larger, single conspiracy. Both of the cases relied
upon to support the instruction dealt with whether multiple
drug transactions constituted a single conspiracy or a
number of smaller conspiracies. Nava-Salazar, 30 F.3d at
795-97; Wilson, 134 F.3d at 865-66. Clem attempts to
distinguish his case by claiming that the indictment created
an “all or nothing” conspiracy, where the jury had to find
that Dick and Clem were acting in concert as part of a
single conspiracy. The indicted members of the conspiracy
included twelve people. Even if one or more had been
acquitted, it may well have had no effect on the overall
single conspiracy charge as it related to Clem. Moreover, a
prosecutor may prove a conspiracy smaller than the one
alleged. United States v. Payne, 226 F.3d 792, 795 (7th Cir.
2000). The argument made in Clem’s brief, that the jury
instruction given at trial lessened the government’s burden
of proof from that required by Nava-Salazar and Wilson, is
an attack on the given instructions for not being a proper
statement of law. The given jury instruction properly stated
the law and did not lessen the government’s burden of
proof.
The jury instructions from Nava-Salazar and Wilson, and
the instruction given at Clem’s trial were the same in all
material respects. If the jury found that there were multiple
conspiracies, the jury then had to find that the defendant was
part of one of those smaller conspiracies and that the smaller
10 Nos. 02-1411, 02-1607 & 02-3641
conspiracy was included in the overarching conspiracy. The
thrust of Clem’s argument comes from the changing of the
words “may find” from the Nava-Salazar/ Wilson instruction,
to “should find” in his instruction. Either wording is permis-
sive, not mandatory. “Should” may be stronger than “may”
but the difference, in practice, is meaningless.
3. Money Laundering Conviction
Clem attacks his conviction for money laundering under
18 U.S.C. § 1956 in relation to his purchase of approximately
thirteen acres of real estate. The facts underlying this con-
viction began when Clem entered into a “verbal deal” to
purchase the real estate from John Platek. Over a twelve-
to fifteen-month period, Clem made a number of cash pay-
ments to Platek in amounts of approximately $7,000 each.
Clem received no receipts for these payments. When the
$40,000 constituting the purchase price was paid, Clem
directed his attorney to “close” on the property. Although
Clem was present at the closing, his name appeared nowhere
on the documents involved in the sale. Clem’s attorney was
instructed to prepare a land trust agreement with Kathleen
Lewis, Clem’s girlfriend, and Mary Beth Messino, Clem’s
daughter, as the beneficiaries. Clem told Lewis that he in-
tended to build a house on the property.
The relevant question on appeal is whether any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. United States v. Reynolds,
64 F.3d 292, 297 (7th Cir. 1995). The money laundering
statute requires the government to prove that the transaction
in question was designed to conceal the nature, location,
source, ownership, or control of the proceeds. 18 U.S.C.
§ 1956(a)(1)(B)(I). This is the only point Clem argues on
appeal.
In United States v. Esterman, 324 F.3d 565, 573 (7th Cir.
2003), we reversed and remanded a defendant’s convictions
Nos. 02-1411, 02-1607 & 02-3641 11
for money laundering. In that case the defendant and a
business partner opened a joint bank account. Id. at 567.
Once the business partner had returned to his native
Russia, the defendant withdrew all of the funds in the ac-
count and deposited them into properly identified bank
accounts he controlled. Id. at 567-68. The defendant then
made some retail purchases and gave some money to an-
other individual by writing checks from those accounts or by
withdrawing cash. Id. at 568. We found that these actions
were insufficient to show intent to conceal the source of the
money. Id. at 573. Clem’s case presents more compelling
evidence of intent to conceal.
In Esterman we cited to United States v. Rockelman, 49
F.3d 418 (8th Cir. 1995), with approval. That case is closer
to the facts of this case—close, but not quite. Rockelman
began with the son of the defendant’s girlfriend and the
son’s girlfriend dealing with a realtor. Rockelman, 49 F.3d
at 422. The realtor showed the couple real estate improved
with a cabin and the couple’s $17,000 offer was accepted. Id.The realtor was told “Uncle” Rockelman, the defendant,
would pay for the property at closing. Id. At the closing,
Rockelman paid $16,756 in cash. Id. The property was titled
in the name of Rockelman’s company—ownership of which
was a matter of public record. Id. The court reversed the
conviction for money laundering saying that upholding it
would turn the money laundering statute into a “money
spending statute.” Id. (quoting United States v. Sanders,
928 F.2d 940, 946 (10th Cir. 1991)). Clem claims that his
case is indistinguishable from Rockelman. We disagree.
Actually, Clem engaged in a strange real estate transac-
tion; it was an oral sale, paid in cash installments without
receipts, where closing did not occur until after the full pur-
chase price had been paid and the land was titled in such a
way that Clem’s name was not associated with the property.
It is also worth noting that the cash transactions were paid
in amounts that avoided the reporting requirements of the
12 Nos. 02-1411, 02-1607 & 02-3641
Internal Revenue Service. Finally, Clem asserts in his brief
that he had no control over the property after closing. Yet,
the record indicates that he intended to build a house on
the property. This is enough under Esterman. Esterman,
324 F.3d at 573 (Stating “unusual secrecy surrounding
transactions, careful structuring of transactions to avoid
attention, folding or otherwise depositing illegal profits into
the bank account or receipts of a legitimate business, use of
third parties to conceal the real owner, or engaging in un-
usual financial moves culminating in a transaction” is
enough to show intent to conceal). Viewing this evidence in
the light most favorable to the government, we find no error
in Clem’s conviction for money laundering.
4. Sentencing
Clem was indicted and convicted prior to the Supreme
Court’s decision in Apprendi. The indictment did not charge
any specific amount of cocaine nor did the jury make any find-
ings as to amount of drugs. The district court found that
such omissions would not constitute harmless error. After
the court made its own findings as to drug amounts, it
sentenced Clem to the statutory maximum, as defined and
discussed in Apprendi. However, the guidelines mandated
a higher sentence than that allowed by Apprendi because of
the amount of cocaine that the district court found to be
involved in the conspiracy. The judge then imposed par-
tially consecutive sentences on the conspiracy charge and
the money laundering charge to reach the total guideline
sentence.
As Clem’s jury found no specific amount of drugs, but he
was sentenced for over fifty kilograms, his sentence violates
the rule announced in Blakely and Booker. Because we find
that the court erred in sentencing Clem based on its own
factual findings, we vacate the conspiracy sentence and the
consecutive sentence imposed as a result of those findings.
Nos. 02-1411, 02-1607 & 02-3641 13
We likewise vacate the enhancements imposed as a result
of the judge’s findings of fact.
5. Criminal Forfeiture
Clem makes a two-pronged attack on the forfeiture find-
ing. First, he argues that the court used the wrong burden
of proof for the forfeiture proceedings—a preponderance of
the evidence standard as opposed to the beyond-a-rea-
sonable-doubt standard. He supports this argument with
Blakely. The second argument is that the jury was not re-
quired to find a nexus between the underlying criminal
activity and the proceeds forfeited. Neither argument re-
quires reversal.
We have previously held that Apprendi has no effect on
criminal forfeiture proceedings because forfeiture provisions
have no statutory maximum. United States v. Vera, 278
F.3d 672, 673 (7th Cir. 2002). Apprendi’s statutory max-
imum was supplied by the statute of conviction; Blakely’s is
external—the statutory maximum is found not in the
criminal code, but instead, the sentencing guidelines. See
Booker, 2004 WL 1535858, at *1. The criminal forfeiture
provisions do not include a statutory maximum; they are
open-ended in that all property representing proceeds of
illegal activity is subject to forfeiture. Vera, 278 F.3d at 673;
U.S.S.G. § 5E1.4; 21 U.S.C. § 853. Therefore, we conclude
that Blakely, like Apprendi, does not apply to forfeiture
proceedings.
Although couched in terms of a Blakely claim, Clem ar-
gues that the jury’s use of the preponderance standard at
the retrial for forfeiture violated his Sixth Amendment rights.
We find that it did not. Libretti states that “the nature of
criminal forfeiture as an aspect of sentencing compels the
conclusion that the right to jury verdict on forfeitability
does not fall within the Sixth Amendment’s constitutional
14 Nos. 02-1411, 02-1607 & 02-3641
protection.” Libretti v. United States, 516 U.S. 29, 49 (1995).
Furthermore, the Supreme Court’s decision in Patterson ex-
plains that, “the Due Process Clause requires the prosecu-
tion to prove beyond a reasonable doubt all of the elements
included in the definition of the offense of which the
defendant is charged.” Patterson v. New York, 432 U.S. 197,
210 (1977). Since forfeiture is not a separate substantive
offense, Libretti, 516 U.S. at 39-40, due process is also not
offended by a preponderance standard.
Clem’s second argument in relation to the forfeiture pro-
ceedings is that the court “dispensed with the requirement
that the government show a nexus between property subject
to forfeiture and the facts of the underlying offenses.” Clem
is correct in asserting that there must be a connection
between the forfeited proceeds and the underlying criminal
violations, Libretti, 516 U.S. at 42; 21 U.S.C. § 853, but he
is wrong in asserting that the court dispensed with this
requirement in his case.
Clem’s argument is that the court allowed the prosecution
to inform the new jury that Clem had been convicted of a
drug conspiracy and money laundering. The forfeiture
hearing then proceeded by the government reading portions
of the trial transcript to the jurors. Clem was allowed to
cross-examine the live witness, and he did so. This pro-
cedure, Clem says, allowed the jury to find forfeitability
without connecting the money to the conduct that resulted
in conviction. We disagree.
The jury was repeatedly instructed that they were re-
quired to find a nexus between the money and the criminal
activity on which the conviction rests. Clem was free to ar-
gue, and did, that the money was not connected to the un-
derlying criminal violations. The jury found the property in
question to be forfeitable. We find no error.
Nos. 02-1411, 02-1607 & 02-3641 15
III. Conclusion
To summarize, we vacate Dick’s sentence on the conspir-
acy to distribute cocaine and money laundering charges and
remand for resentencing. We also vacate the enhancements
applied to his sentence. We affirm Chris’s sentence in its
entirety. As for Clem’s claims, we vacate those parts of his
sentence which relate to drug amounts. We also vacate the
imposition of enhancements for possession of a weapon
during the commission of a drug conspiracy and for being a
leader or an organizer. All other issues Clem raised are
affirmed.
AFFIRMED in part, VACATED and REMANDED in part with
directions.
16 Nos. 02-1411, 02-1607 & 02-3641
EASTERBROOK, Circuit Judge, dissenting in part. I join
the court’s opinion and judgment to the extent that it af-
firms the convictions. I would affirm the sentences as well,
for the reasons given in United States v. Booker, 375 F.3d
508 (7th Cir. 2004) (dissenting opinion), cert. granted, No.
04-104 (U.S. Aug. 2, 2004). Prudence counsels waiting to
see what the Supreme Court says before resentencing, lest
a re-resentencing lie in store. One question presented in
Booker is what to do next if the statutory provisions requiring
judges to resolve factual disputes that affect federal sen-
tences should be held unconstitutional. Until the Supreme
Court has spoken, not only what to do, but also how to do it,
is uncertain. I trust that we will hold the mandate until
Booker’s final resolution, and that the district judge will sit
tight even if we let the mandate go earlier.
One comment on an issue implied rather than addressed
in my colleagues’ opinion. In supplemental briefs filed after
oral argument, the United States contended that the
defendants had not adequately preserved an argument
based on Blakely v. Washington, 124 S. Ct. 2531 (2004), and
that our review therefore is limited to a search for plain error.
All three members of the panel disagree with that position.
Both Dick Messino and Clem Messino advanced in their
opening briefs arguments based on Apprendi v. New Jersey,
530 U.S. 466 (2000), which led to Blakely and Booker. True,
appellants did not develop these arguments at length in
either the district court or their appellate briefs, but the law
was so firmly against them that elaboration would have
been pointless. When precedent is adverse, a few sentences
flagging the point suffice to preserve an argument for resolu-
tion by a higher court. Thus the appropriate question (if
Booker is correct) is whether the error was harmless, and if
I were to indulge the assumption that Booker got it right I
would agree with my colleagues that the error is not
harmless.
Nos. 02-1411, 02-1607 & 02-3641 17
Still, a claim must be advanced, if it is to be preserved,
even when all precedent is contrary. See Bousley v. United
States, 523 U.S. 614, 622-23 (1998); Monsanto Co. v. Spray-
Rite Service Corp., 465 U.S. 752, 761-62 n.7 (1984); Engel v.
Isaac, 456 U.S. 107, 130 n.35 (1982). A point raised belat-
edly leads to relief only if the standards for plain- error
review are met. We know from United States v. Cotton, 535
U.S. 625, 631-34 (2002), that an Apprendi error does not
justify reversal under the plain-error standard because it
does not seriously affect the fairness, integrity, or public
reputation of judicial proceedings. Although Cotton said
that the evidence in that case was overwhelming (which
may or may not be true of the evidence that led to the
Messinos’ sentences), it did not imply that any sentence
based on a preponderance of the evidence must be vacated,
and I see no good reason why it should. Cf. United States v.
Knights, 534 U.S. 112, 117-18 (2001).
Judges, no less than jurors, resolve factual disputes ac-
curately, and decision under the preponderance standard
(the norm before Booker) is reliable. That’s why the Court
held in Schriro v. Summerlin, 124 S. Ct. 2519 (2004), that
another of Apprendi’s sequels does not apply retroactively
on collateral review. Although the plain-error standard dif-
fers formally from the standard for retroactive application,
whether an error gravely undermines the reliability of the
outcome is common to the two inquiries. Given Schriro and
opinions such as United States v. Watts, 519 U.S. 148 (1997),
we cannot say that judicial resolution of factual disputes on
a preponderance is so mistake-prone that reversal is apt
under the plain-error standard. It would be weird to hold
that a sentencing process used since 1987 with the Supreme
Court’s approbation (see, e.g., Edwards v. United States,
523 U.S. 511 (1998)), plus the support of all federal circuits
even after Apprendi, now must be deemed so unreliable
that it undermines the fairness, integrity, and public
reputation of judicial proceedings. Accord, United States v.
18 Nos. 02-1411, 02-1607 & 02-3641
Duncan, 2004 U.S. App. LEXIS 17250 (11th Cir. Aug. 18,
2004) (Guideline sentences based on facts found by judges
ought not be set aside under the plain-error standard).
Challenges raised initially after the district judge has im-
posed sentence therefore must fail even if the Supreme
Court affirms in Booker; but, when Apprendi-based argu-
ments have been properly preserved, relief is appropriate
because a Booker error is not harmless.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-31-04