* Although Judge Ryan was no t prese n t for the o ral argu men t in this

app eal, he otherwise ful ly part ici pated in the ca se and has listene d with care to the tap e reco rded oral ar gume nts.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0168P (6th C ir.) File Name: 04a01 68p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
U NITED S TAT ES OF A MERICA ,

Plaintiff-Appellee,

v.

M ARSHA LL D WAYNE H UGHES , Defenda nt-Appel

lant. X - - - -
> , - - - - N No. 02-2026

Appeal from the United States District Court for the E astern D istrict of Michiga n at Detr oit. No. 94-80665—Bernard A. Friedman, D istrict 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, GUR EW ITZ &

RABEN, Detroit, Michigan, for Appellant. Krishna S. Digh e, UNITED STATES ATT ORNEY, Detroit, Michigan, for Appellee. ON BRIE F: M argaret Raben, GUREWITZ & RABEN, Detroit, Michigan, for Appellant. Krishna S. Dighe, UNIT ED STATES ATTORNEY, Detroit, Michigan, for Appellee.

_________________ OPINION

_________________ RYAN , Circuit Judge. The defendant, Marshall Dwa yn e Hu g hes, present s three is sues for us to deci de, on this , his direct appeal f rom his convictions for theft of government pr op er ty, in violation of 18 U.S.C. § 641 , and bein g a fel on in possession of

a firearm, in violation

of 18 U.S.C. § 922(g)(1). The issue s are: 1) whether, at sentencing, the district court was bound to apply the pena lty p rovision o f 18 U.S.C. § 641 that was in effect at

the time of sentencing, rather thanth e p en al ty p rovi sion that was in effect at the time Hug hes commit

ted the un derly ing off ense; 2) whether

Hughes was entit

l ed t o a three-point

r eductionin offense level for acceptanc e of responsibility, rather than two points; and 3) whether

the distri ct court ’s use of the Guide lines’ 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. Fact ual and Pro cedural Ba ckground
The facts are not in dispute. On January 17, 1994, Hughes and an accomplice ro

bbed a U. S. Deputy Marsha l in the city of Detroit. While Hughes’s accomplice pointed a g un at the Marshal’s head and back, Hughes took the Marshal’s je we lr y, service revolv er, mone y, a nd leathe r coat. H ughes a nd his accomplice then searched and threatened to kill another ma n 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.

Or ig in al ly, Hughes was convicted a nd sentenced after a j ury found him guilty of theft of government property

and being a felon in possession of a firearm. After his conviction and sentence were uphel d on direct appeal, Hughes sought ha beas relief. The distr

ict cour t denied r elief, b ut this c our t reversed a nd remanded the case, finding ineff ective assistanc e of counsel a

t trial. H ughes v. United States , 258 F.3d 453, 464 (6th Cir. 2 001). On r emand, H ughes p leaded g

uilty to both counts, and the district court sentenced him on July 29, 2002. Applying the 1994 Sentencing Guidelines, the district court found anadjusted

offense level of 31 and a guideline r ange of 151-188 months, based

on a criminal history ca

tegory of IV. The court sentenc ed Hughes to 120 months on Count 1, theft of go ve rn me nt pr op er ty, and 68 months on Count 2, being a felon in possession of a firearm, to be served c onsecut iv el y. The court als o imposed a three-y ear term of supervised releas e to follow Hughes’s incarceration and or dered him to pay restitution and a spec ial assessment.

II. Analysis

A.

The firs t issue Hug

hes pres ents arises f

rom his claim tha

t, indetermi

n ing the appropriate sentence for his theft 4 United States v. Hughes No. 02-2026

conviction, the district court should have applied a mended 18 U.S.C. § 641, whic h, at the time of sentencing, provided for a statutory maximum of oneyear of imprisonment for

the theft of government property whose value d id not exceed $1,000, see 18 U.S.C. § 641 (2000), rather than t h e more severe t en-yea

r sentence that was in effect at the time of the commission of the offense.

“We examine de novo the purely leg al question of whether
a new statute applies to pending cases.” Wrigh t v. Morris , 111 F.3d 414, 417 (6th Cir. 19 97). For the reasons that follo w , we conclude that the district court properly rejected Hughes’s argume

nt and app lied the penalty provision that was ineffec t at the time

Hughes committed the underly ing theft of government property

. InJanuary 1994, when Hug hes robbed the U.S. Marshal of his government-owned service re vo lver, the pena lty provision of 18 U.S.C. § 6 41 provide d, in pertine nt part, that a person guilty of theft of government property “[s]hall be fined . . . or imprisoned not more than ten yea rs, or both; but if the value of such property doe s not exceed the sum of

$100, he shall be fined . . . or imprisoned not more than one year, o r both. ” 18 U.S.C. § 641 (1988). The penal ty provision in effe ct in July 2002, when Hughes wa s sentenced, provided for a oneyea rstatut ory maximum “if the value of such prope rty does not exceed the sum of $1,000.” 18 U.S.C. § 641 (2000).

The gener

al rule, derived

from th e common law, is tha t a court must “app ly the law in e ffect at the time it r enders i ts decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the
con t rary.” Bradley v. Sch. Bd. of Richmond , 416 U.S. 696, 711 (1974). Nevertheless, the genera l saving clause, found at 1 U.S.C. § 10 9, provide s:
The repeal of any

statute shall not ha

ve the ef fect to releas e or exting

uish any penalty , forfe it ure, or liabili

ty incurred under suc h statu te, unless the

repeal ing Act

shallNo. 02-2026 United States v. Hughes 5

so expressly provide, and such statute shall be treated as still remainin

g in force for the purpose of sustaining any proper action or prosecution for the enforcement of such pe na lt y, forfei ture, or liability. The expiration of a t e mporary

statute shall not have the effect to release or extinguis h any

penalty , forfe iture, or

liabil it y i ncurred under such

statute, u nless the tempora ry statute shall so expressly provide, and such statut e shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution

for the enforcement of such penalty, forf

eiture, or liability. 1 U.S.C. § 109 (1997). Thus, in e valua ting Hughes’s claim, we must consider whether 18 U. S. C. § 6 41 im po se s a “p en al ty, forf eiture, or li ab il it y” saved from release or exting u ishment by

1 U.S.C. § 109. A review of the plain languag e of the statute, together with relevant Supreme Court precedent, leads us to the conclusion that it does.

Section 641 plai nly imposes a penalty for the theft of government

property. The

language of the statute, providing that a person guilty of theft o f gove rnment pr operty “[s]hall be fined . . . or impris oned,” c ould hard ly be any c learer. The Supreme Court has explained that the s aving c lause was enacted

to abolish the common-law presumption that the repeal of a crimina

l statute r

esulted in

th e abatemen

t of all prosecutions which ha

d not rea ched final disposit

ion in the hi ghest court authorized to review t hem

. Common-la

w a batements resulted not only fr om unequivocal statutory repea ls, but also from repeal s and
re-enac tm ents with different penalties, whether the

r e-enacted

legislation increased or decrea sed t h e penaltie s. To avoid such abatements—often the product of legi slative inadverte

nce—Cong

ress enacted 1 U.S.C. § 109, the general saving cla use . . . . 6 United States v. Hughes No. 02-2026

Warden, Lewisburg P

enitentia ry v. Mar

rero , 417 U.S. 653, 660 (1974) (internal quotation marks and citations omitted).

In Marrero , the defen dant was ineligible for parole under
a statute that was in effect at the time he was sentence d. Id. at 655. After the stat

ut e was repealed, Marrer o initiated habeas corpus procee dings to deter mine his pa

role elig ibility status. Id. The Court

held , i nter 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 sentencinglaws repealing harsher ones in for ce at the time of the commission of an offense.” Id. at 661.
Several of our sister circuits hav e co me to the sa me conclusion. In United States v. Jacobs , 919 F.2d 10 (3d Cir. 1990), t he issue before the Third Circuit was “whether a defendant [was] el igib le for pr

obation ba sed on the

offense classifi cation in

effec t at the time

she commit

ted the of fense
or at the time she was senten ced .” Id. at 10-11. The statu te ineffect when the defendant committed

the offense provided that her offense was a Class B felony , with the result that she
was inel igible for probation. Id. at 11. Prior to her sente ncing, the statute was amended such that her offense was
a Class C felony, which would ha ve ma de her eligible for probation. Id. The Third Circuit held that “section 109 applies to amendments of statutory classifications that re nder
a defendant eligible for probat ion.” 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 a t the time she committed

the offe nse from benefit tin g f rom a statutory amendment

to the offense classifications that would have rendered her eligible for pro bation. Id. at 676. Finally, in a
casefactually similar to Cook , the Eighth Circuit held that a defendant “is not entitled to benefit from changes in a criminal penalty

statute e

nacted a fter he commi tted 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 H ughes co mmitted the underly ing thef t is saved from release or

extinguishment by 1 U.S.C. § 109. The districtcourt properly

rejected Hughe s’s attempt to take advan tage of an ameliorat iv e criminal sentencing law that decreased the pena lty f or the the ft of go vernmen t proper ty whose value is greater than $100, but not more than $1,000.

B. Hughes’s second argument is that hewas entitled to a threepointreduction in offense level for hi s ac ceptance of responsi bil it y. He conte

nds that th e district court c learly erred in gran ting him a me re tw o-po int re duct ion. W e disagree.

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

a defen dant’s of fense le vel should

be decreased if he “c learly demonstra

tes acceptance of responsibility for his offense .” U.S.S.G . § 3E1.1( a) (1994 ). Pursua nt to Section 3E1.1(b), a district court must award an additional one-point reduction in the offense level of a defe ndant who has demonstr

ated “su per acc eptance ” of res

ponsi bil ity by either “(1) timely providing

complet e inf

ormation to the government concerning his own involvement in the offense;
or (2) timely notify

ing authorities of his intention to enter a plea of guil ty, there by permit ting t he go vernme nt to avoid preparing fo r t rial and

permittin

g the co urt to allo cate its resources efficiently .” U.S.S.G. § 3E1.1(b) (1994); see also United States v. Robertson , 260 F.3d 500, 50 7 (6th Cir. 2001). A defendant has the burde n of p ro vi ng , b y a preponderanceof the evidence, that a reduction under Section 3E1.1(b) is appropriate. United Sta tes v. Be njamin , 138 F.3d 1069, 1075 (6th Cir. 1998). The commenta ry to Section 3E 1.1 notes that conduct qualifying for a reduction under Section 3E1.1(b) will generally “occur p artic ularly

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 factualfindings for purposes of sentenc ing unde

r the Guid

elines f or clea r error, and we “give d ue defer ence 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 ci tation omitted); Robertson , 260 F.3d at 506. “Issues involving the interpretation

of Guidelines provisions, however, are lega l questions which this court reviews de novo .” Robertson , 260 F.3d at 506.

Alth ough the district

court found

that Hughes was entitled to a two-poi nt reduction in offense level for acceptanc e of
re sp on si bi li ty, it declined to award a third point for “super acceptance”

of resp onsi bili ty because “[Hugh es ] did not admit his involvement in the instant off ense i n a timely
manner. Fu rt he r, he di d n ot ti me ly n ot if y authori ties of his intention to enter a plea of gui lt y t hereby pe rmitting the Government

to avoid pr

eparing fo r trial, and permitting the Court to allocate its resources efficiently . . . .”

We have carefully

examined

the rec ord and find no clear
error in th e dist rict c ourt’ s find ings. Hugh es 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 f

or his ac ts u ntil it was apparent that there was overwhelming evidence against him, based on the gover nment’s e fforts inprepar

ing and present ing the c ase inthe first instance . Finally

, Hughe s did

not plead guilty until three we eks before his second trial was scheduled to begin, and even then, he attempted to wi thd raw his guilty ple a. Based on the record beforeus, we cannot say that the district court clearly e rred in declining to award Hug hes a third point for “super acceptance ” of responsibility.

C.

Fi na ll y, Hughes

argue s that the d

istrict c ourt viola

ted his Fifth and Sixth Ame

ndment rig

hts by cross-r efere ncing h is § 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 Sentenc ing Gu ideline for robbery . Hughes claims that the districtcourt impermissibly sentenced him as if he had committed

a crime, robbery , for which he was never charged and for which no jury found him g uilty bey ond a reasona ble doubt. He argue s that the G uideline s may

not be app lied in this manner, unless a jur y firs t finds be

yon d a reas onable doubtthat he engaged in the alleg ed conduct . He relies on United States v. Stubbs , 279 F.3d 402 (6th Cir. 2002) , and Apprendiv. New Jersey , 530 U.S. 4 66 (2000) , to suppor t this argument.

We review the di strict co urt’s leg al concl

usions de novo and its fact-finding fo r clear

error. United Sta tes v. Gri ffis , 282 F.3d 443, 446 (6th Cir. 2002).

The d istrict court adopted the recommendation of the Probation Dep art ment and cross-referenced H ughes’s § 922(g)convicti on for be ing a fe lon in posse ssio n of a firearm inaccordance with U.S.S.G. § 2K2.1(c)(1)( A), which directed the application of § 2X1.1(c), which, in turn, directed the applica ti on of § 2B3.1. Section 2B3.1, the Guideline provision for robb ery , creat es a base offense level of 20. See U. S.S.G. § 2B3.1 (1994). The court added 13 points fo r various adjustments and

specific offense characteristics, and credited the defendant wi th t wo points for acceptance of responsibility. Hughes’s argument that the district court’s use of the Guideline s’ cross-reference provisions violated his Fifth and Sixth Amendment

ri ghts 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 dis t rict court cross-reference d 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 at

tempt to commit another offense. Under U.S.S.G. § 2X1.1(c), the di stri ct court 10 United States v. Hughes No. 02-2026

determined

that the attempt was expressly cove red by the Guid elines’ provision for a ttempted murder, see U.S.S.G. § 2A2.1(a)(1), which crea tes a base-offense level of twenty-eig

ht.

Id. at 297.

Heltonargue d that the

district c ourt impermissibly and unconstit utionally “senten c ed him as if he had committed a crime(attempted murder) for which he was never charged a nd for w hich no jury found him g uilty bey ond a reasonab l e doubt.” Id. at

299. He argued that apply ing the Guideline s in this manner to increase his sentence, wher e a jury had not first found beyond a re asonable doubt that he engaged in the alleged conduct, violated his Fifth and Sixth Amendment rights. Id. He relied on Stubbs and Ap prendito support

his argument. Id.

Inaddressing Helton’s constitutional challenges to the districtcourt’s use of the cros s-re ferences, we noted that

“ Stubbs . . . is no longer good law. Neither that decision nor the precedents upon which it relied have survived a r ecent Supreme Court decision delineating the scope of Apprendi .” Id. (internal citations omitted). The Helton court went on to explain: [O]nce the jury

has dete rmined g uilt, the di s tri ct court may sentenc e the def

endant to the statut

ory minimum, the statutory maximum, or any thing in between, based on its (proper) application of the Guidelines and based on its (permissible) prepo nderan ce-of- the-ev idenc e find ings und er the Guidelines. So long as the judge does not sentence the defendan

t b eyond the ma

ximum levels authorized

by the statute under which the defendant was convicted, H

arris [v. United States , 536 U.S. 545 (2002) ,] ma kes clear that the district court does not run afoul of Apprendior the constitutiona l rights t hat it protects.No. 02-2026 United States v. Hughes 11

Id.

The Helton court concluded t hat s o lo ng “[a]s n

o single sentence exceed[s] the maximum permittedby statute under any of th e .

. . co un ts on wh ic h t he ju ry convicted [the defe ndant, the defendant’s] constitutional challenge cannot succeed.” Id. at 300. Hughes’s argume

nt is identi cal i n a ll materia l respects to the argume

nt this cou

rt rejec te d 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 (1 988), and as i t is un disputed 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 foreg oing re asons, we AFFIRM the district court’s judgment.