*

Although Judge Ryan was not present for the oral argument in this

appeal, he otherwise fully participated in the case and has listened with

care to the tape recorded oral arguments. 

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0168P (6th Cir.)

File Name: 04a0168p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARSHALL DWAYNE

HUGHES,

Defendant-Appellant.

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No. 02-2026

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 94-80665—Bernard A. Friedman, District Judge.

Argued: January 27, 2004

Decided and Filed: June 4, 2004 

Before: MARTIN, RYAN,* and MOORE, Circuit Judges. 

2 United States v. Hughes No. 02-2026

_________________

COUNSEL

ARGUED: Margaret Raben, GUREWITZ & RABEN,

Detroit, Michigan, for Appellant. Krishna S. Dighe, UNITED

STATES ATTORNEY, Detroit, Michigan, for Appellee.

ON BRIEF: Margaret Raben, GUREWITZ & RABEN,

Detroit, Michigan, for Appellant. Krishna S. Dighe, UNITED

STATES ATTORNEY, Detroit, Michigan, for Appellee.

_________________

OPINION

_________________

RYAN, Circuit Judge. The defendant, Marshall Dwayne

Hughes, presents three issues for us to decide, on this, his

direct appeal from his convictions for theft of government

property, in violation of 18 U.S.C. § 641, and being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

The issues are: 

1) whether, at sentencing, the district court was bound

to apply the penalty provision of 18 U.S.C. § 641

that was in effect at the time of sentencing, rather

than the penalty provision that was in effect at the

time Hughes committed the underlying offense; 

2) whether Hughes was entitled to a three-point

reduction in offense level for acceptance of

responsibility, rather than two points; and 

3) whether the district court’s use of the Guidelines’

cross-reference provisions violated Apprendi v. New

Jersey, 530 U.S. 466 (2000). 

We answer all three questions in the negative, as the district

court did; therefore, we shall affirm. 
No. 02-2026 United States v. Hughes 3

I. Factual and Procedural Background

The facts are not in dispute. On January 17, 1994, Hughes

and an accomplice robbed a U.S. Deputy Marshal in the city

of Detroit. While Hughes’s accomplice pointed a gun at the

Marshal’s head and back, Hughes took the Marshal’s jewelry,

service revolver, money, and leather coat. Hughes and his

accomplice then searched and threatened to kill another man

who had been assisting the Marshal. It is undisputed that the

stolen service revolver belonged to the U.S. Government and

had a value of more than $100, but less than $1,000. 

Originally, Hughes was convicted and sentenced after a

jury found him guilty of theft of government property and

being a felon in possession of a firearm. After his conviction

and sentence were upheld on direct appeal, Hughes sought

habeas relief. The district court denied relief, but this court

reversedand remanded the case, finding ineffective assistance

of counsel at trial. Hughes v. United States, 258 F.3d 453,

464 (6th Cir. 2001). On remand, Hughes pleaded guilty to

both counts, and the district court sentenced him on July 29,

2002. 

Applying the 1994 Sentencing Guidelines, the district court

found an adjusted offense level of 31 and a guideline range of

151-188 months, based on a criminal history category of IV.

The court sentenced Hughes to 120 months on Count 1, theft

of government property, and 68 months on Count 2, being a

felon in possession of a firearm, to be served consecutively.

The court also imposed a three-year term of supervised

release to follow Hughes’s incarceration and ordered him to

pay restitution and a special assessment. 

II. Analysis

A.

The first issue Hughes presents arises from his claim that,

in determining the appropriate sentence for his theft

4 United States v. Hughes No. 02-2026

conviction, the district court should have applied amended

18 U.S.C. § 641, which, at the time of sentencing, provided

for a statutory maximum of one year of imprisonment for the

theft of government property whose value did not exceed

$1,000, see 18 U.S.C. § 641 (2000), rather than the more

severe ten-year sentence that was in effect at the time of the

commission of the offense. 

“We examine de novo the purely legal question of whether

a new statute applies to pending cases.” Wright v. Morris,

111 F.3d 414, 417 (6th Cir. 1997). For the reasons that

follow, we conclude that the district court properly rejected

Hughes’s argument and applied the penalty provision that was

in effect at the time Hughes committed the underlying theft of

government property. 

In January 1994, when Hughes robbed the U.S. Marshal of

his government-owned service revolver,the penalty provision

of 18 U.S.C. § 641 provided, in pertinent part, that a person

guilty of theft of government property “[s]hall be fined . . . or

imprisoned not more than ten years, or both; but if the value

of such property does not exceed the sum of $100, he shall be

fined . . . or imprisoned not more than one year, or both.”

18 U.S.C. § 641 (1988). The penalty provision in effect in

July 2002, when Hughes was sentenced, provided for a oneyear statutory maximum “if the value of such property does

not exceed the sum of $1,000.” 18 U.S.C. § 641 (2000). 

The general rule, derived from the common law, is that a

court must “apply the law in effect at the time it renders its

decision, unless doing so would result in manifest injustice or

there is statutory direction or legislative history to the

contrary.” Bradley v. Sch. Bd. of Richmond, 416 U.S. 696,

711 (1974). Nevertheless, the general saving clause, found at

1 U.S.C. § 109, provides: 

The repeal of any statute shall not have the effect to

release or extinguish any penalty, forfeiture, or liability

incurred under such statute, unless the repealing Act shall
No. 02-2026 United States v. Hughes 5

so expressly provide, and such statute shall be treated as

still remaining in force for the purpose of sustaining any

proper action or prosecution for the enforcement of such

penalty, forfeiture, or liability. The expiration of a

temporary statute shall not have the effect to release or

extinguish any penalty, forfeiture, or liability incurred

under such statute, unless the temporary statute shall so

expressly provide, and such statute shall be treated as

still remaining in force for the purpose of sustaining any

proper action or prosecution for the enforcement of such

penalty, forfeiture, or liability. 

1 U.S.C. § 109 (1997). 

Thus, in evaluating Hughes’s claim, we must consider

whether 18 U.S.C. § 641 imposes a “penalty, forfeiture, or

liability” saved from release or extinguishment by 1 U.S.C.

§ 109. A review of the plain language of the statute, together

with relevant Supreme Court precedent, leads us to the

conclusion that it does. 

Section 641 plainly imposes a penalty for the theft of

government property. The language of the statute, providing

that a person guilty of theft of government property “[s]hall

be fined . . . or imprisoned,” could hardly be any clearer. The

Supreme Court has explained that the saving clause was

enacted

to abolish the common-law presumption that the repeal

of a criminal statute resulted in the abatement of all

prosecutions which had not reached final disposition in

the highest court authorized to review them.

Common-law abatements resulted not only from

unequivocal statutory repeals, but also from repeals and

re-enactments with different penalties, whether the

re-enacted legislation increased or decreased the

penalties. To avoid such abatements—often the product

of legislative inadvertence—Congress enacted 1 U.S.C.

§ 109, the general saving clause . . . . 

6 United States v. Hughes No. 02-2026

Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653,

660 (1974) (internal quotation marks and citations omitted).

In Marrero, the defendant was ineligible for parole under

a statute that was in effect at the time he was sentenced. Id.

at 655. After the statute was repealed, Marrero initiated

habeas corpus proceedings to determine his parole eligibility

status. Id. The Court held, inter alia, that 1 U.S.C. § 109

barred the Board of Parole from considering the defendant for

parole. Marrero, 417 U.S. at 659. The Court explicitly noted

that the saving clause “bar[s] application of ameliorative

criminal sentencing laws repealing harsher ones in force at the

time of the commission of an offense.” Id. at 661. 

Several of our sister circuits have come to the same

conclusion. In United States v. Jacobs, 919 F.2d 10 (3d Cir.

1990), the issue before the Third Circuit was “whether a

defendant [was] eligible for probation based on the offense

classification in effect at the time she committed the offense

or at the time she was sentenced.” Id. at 10-11. The statute

in effect when the defendant committed the offense provided

that her offense was a Class B felony, with the result that she

was ineligible for probation. Id. at 11. Prior to her

sentencing, the statute was amended such that her offense was

a Class C felony, which would have made her eligible for

probation. Id. The Third Circuit held that “section 109

applies to amendments of statutory classifications that render

a defendant eligible for probation.” Id. at 12. Likewise, in

United States v. Cook, 890 F.2d 672 (4th Cir. 1989), the

Fourth Circuit held that the saving statute prevented a

defendant who was ineligible for probation at the time she

committed the offense from benefitting from a statutory

amendment to the offense classifications that would have

rendered her eligible for probation. Id. at 676. Finally, in a

case factually similar to Cook, the Eighth Circuit held that a

defendant “is not entitled to benefit from changes in a

criminal penalty statute enacted after he committed his

offense.” United States v. O’Meara, 33 F.3d 20, 21 (8th Cir.

1994). 
No. 02-2026 United States v. Hughes 7

We hold that the penalty provision of 18 U.S.C. § 641 in

effect at the time Hughes committed the underlying theft is

saved from release or extinguishment by 1 U.S.C. § 109. The

district court properly rejected Hughes’s attempt to take

advantage of an ameliorative criminal sentencing law that

decreased the penalty for the theft of government property

whose value is greater than $100, but not more than $1,000.

B.

Hughes’s second argument is that he was entitled to a threepoint reduction in offense level for his acceptance of

responsibility. He contends that the district court clearly

erred in granting him a mere two-point reduction. We

disagree. 

United States Sentencing Guideline Section 3E1.1(a)

provides that a defendant’s offense level should be decreased

if he “clearly demonstrates acceptance of responsibility for

his offense.” U.S.S.G. § 3E1.1(a) (1994). Pursuant to

Section 3E1.1(b), a district court must award an additional

one-point reduction in the offense level of a defendant who

has demonstrated “super acceptance” of responsibility by

either “(1) timely providing complete information to the

government concerning his own involvement in the offense;

or (2) timely notifying authorities of his intention to enter a

plea of guilty, thereby permitting the government to avoid

preparing for trial and permitting the court to allocate its

resources efficiently.” U.S.S.G. § 3E1.1(b) (1994); see also

United States v. Robertson, 260 F.3d 500, 507 (6th Cir.

2001). A defendant has the burden of proving, by a

preponderance of the evidence, that a reduction under Section

3E1.1(b) is appropriate. United States v. Benjamin, 138 F.3d

1069, 1075 (6th Cir. 1998). The commentary to Section

3E1.1 notes that conduct qualifying for a reduction under

Section 3E1.1(b) will generally “occur particularly early in

the case.” U.S.S.G. § 3E1.1, comment. (n.6) (1994). 

8 United States v. Hughes No. 02-2026

We review the district court’s factual findings for purposes

of sentencing under the Guidelines for clear error, and we

“give due deference to the district court’s application of the

guidelines to the facts.” United States v. Webb, 335 F.3d 534,

537 (6th Cir. 2003) (internal quotation marks and citation

omitted); Robertson, 260 F.3d at 506. “Issues involving the

interpretation of Guidelines provisions, however, are legal

questions which this court reviews de novo.” Robertson, 260

F.3d at 506. 

Although the district court found that Hughes was entitled

to a two-point reduction in offense level for acceptance of

responsibility, it declined to award a third point for “super

acceptance” of responsibility because “[Hughes] did not

admit his involvement in the instant offense in a timely

manner. Further, he did not timely notify authorities of his

intention to enter a plea of guilty thereby permitting the

Government to avoid preparing for trial, and permitting the

Court to allocate its resources efficiently . . . .” 

We have carefully examined the record and find no clear

error in the district court’s findings. Hughes was a fugitive

for 14 months after he committed these crimes, and he forced

the government to proceed to trial in May 1995. He did not

fully accept responsibility for his acts until it was apparent

that there was overwhelming evidence against him, based on

the government’s efforts in preparing and presenting the case

in the first instance. Finally, Hughes did not plead guilty until

three weeks before his second trial was scheduled to begin,

and even then, he attempted to withdraw his guilty plea.

Based on the record before us, we cannot say that the district

court clearly erred in declining to award Hughes a third point

for “super acceptance” of responsibility. 

C.

Finally, Hughes argues that the district court violated his

Fifth and Sixth Amendment rights by cross-referencing his

§ 922(g) conviction in accordance with U.S.S.G.
No. 02-2026 United States v. Hughes 9

§§ 2K2.1(c)(1)(A) and 2X1.1(c)(1) to U.S.S.G. § 2B3.1, the

Sentencing Guideline for robbery. Hughes claims that the

district court impermissibly sentenced him as if he had

committed a crime, robbery, for which he was never charged

and for which no jury found him guilty beyond a reasonable

doubt. He argues that the Guidelines may not be applied in

this manner, unless a jury first finds beyond a reasonable

doubt that he engaged in the alleged conduct. He relies on

United States v. Stubbs, 279 F.3d 402 (6th Cir. 2002), and

Apprendi v. New Jersey, 530 U.S. 466 (2000), to support this

argument. 

We review the district court’s legal conclusions de novo

and its fact-finding for clear error. United States v. Griffis,

282 F.3d 443, 446 (6th Cir. 2002). 

The district court adopted the recommendation of the

Probation Department and cross-referenced Hughes’s

§ 922(g) conviction for being a felon in possession of a

firearm in accordance with U.S.S.G. § 2K2.1(c)(1)(A), which

directed the application of § 2X1.1(c), which, in turn, directed

the application of § 2B3.1. Section 2B3.1, the Guideline

provision for robbery, creates a base offense level of 20. See

U.S.S.G. § 2B3.1 (1994). The court added 13 points for

various adjustments and specific offense characteristics, and

credited the defendant with two points for acceptance of

responsibility. 

Hughes’s argument that the district court’s use of the

Guidelines’ cross-reference provisions violated his Fifth and

Sixth Amendment rights is without merit. We rejected an

identical claim in United States v. Helton, 349 F.3d 295 (6th

Cir. 2003). In sentencing the defendant in that case,

the district court cross-referenced his § 922(g) conviction

for possession of a firearm in accordance with U.S.S.G.

§ 2K2.1(c)(1)(A), concluding that he had used the

firearm in connection with an attempt to commit another

offense. Under U.S.S.G. § 2X1.1(c), the district court

10 United States v. Hughes No. 02-2026

determined that the attempt was expressly covered by the

Guidelines’provision for attempted murder, see U.S.S.G.

§ 2A2.1(a)(1), which creates a base-offense level of

twenty-eight. 

Id. at 297. 

Helton argued that the district court impermissibly and

unconstitutionally “sentenced him as if he had committed a

crime (attempted murder) for which he was never charged and

for which no jury found him guilty beyond a reasonable

doubt.” Id. at 299. He argued that applying the Guidelines in

this manner to increase his sentence, where a jury had not first

found beyond a reasonable doubt that he engaged in the

alleged conduct, violated his Fifth and Sixth Amendment

rights. Id. He relied on Stubbs and Apprendi to support his

argument. Id. 

In addressing Helton’s constitutional challenges to the

district court’s use of the cross-references, we noted that

“Stubbs . . . is no longer good law. Neither that decision nor

the precedents upon which it relied have survived a recent

Supreme Court decision delineating the scope of Apprendi.”

Id. (internal citations omitted). The Helton court went on to

explain: 

[O]nce the jury has determined guilt, the district court

may sentence the defendant to the statutory minimum,

the statutory maximum, or anything in between, based on

its (proper) application of the Guidelines and based on its

(permissible) preponderance-of-the-evidence findings

under the Guidelines. So long as the judge does not

sentence the defendant beyond the maximum levels

authorized by the statute under which the defendant was

convicted, Harris [v. United States, 536 U.S. 545

(2002),] makes clear that the district court does not run

afoul of Apprendi or the constitutional rights that it

protects. 
No. 02-2026 United States v. Hughes 11

Id. 

The Helton court concluded that so long “[a]s no single

sentence exceed[s] the maximum permitted by statute under

any of the . . . counts on which the jury convicted [the

defendant, the defendant’s] constitutional challenge cannot

succeed.” Id. at 300. 

Hughes’s argument is identical in all material respects to

the argument this court rejected in Helton. As the statutory

maximum for each of Hughes’s counts of conviction was 120

months, see 18 U.S.C. § 924(a)(2); 18 U.S.C. § 641 (1988),

and as it is undisputed that no single sentence exceeded the

maximum permitted by statute, the district court’s decision

must be affirmed. See Helton, 349 F.3d at 300. 

III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s

judgment.