In the

United States Court of Appeals

For the Seventh Circuit

No. 17-1406

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BYRON J. HOLTON,

Defendant-Appellant.

Appeal from the United States District Court for the 

Southern District of Illinois.

No. 3:15-cr-30016-SMY-1 — Staci M. Yandle, Judge.

ARGUED OCTOBER 4, 2017 — DECIDED OCTOBER 13, 2017

Before BAUER, EASTERBROOK, and MANION, Circuit Judges.

PER CURIAM. Byron Holton pleaded guilty to robbing a

grocery store in southern Illinois while carrying and using a

firearm, and a jury found him guilty of conspiring to commit

Hobbs Act robbery (a robbery affecting interstate commerce).

Insentencing Holton on the conspiracy count, the district judge

imposed a prison term roughly four years above the recom-
2 No. 17-1406

mended Guidelines sentence. The judge based the sentence

on other robberies that Holton committed, and that were

relevant to his conspiracy conviction, but for which he was not

charged. He contends that the district judge abused her

discretion by relying on uncharged conduct as the basis for

imposing an above-Guidelines sentence. Because the Supreme

Court has held that a district judge may consider evidence

of conduct that is relevant to the offense of conviction, even if

that conduct is uncharged, we affirm the judgment.

We begin with some background. Holton lost his factory

job and, in need of money, agreed with two friends to rob drug

dealers. After the group successfully robbed several drug

dealers, it redirected its efforts to target grocery stores,

including a Shop ‘n Save. Once Holton knocked off this store,

law enforcement agents tracked him down, and he confessed

during questioning to participating in robbing the Shop ‘n

Save.

In a second superseding indictment, the government

charged Holton with seven counts: one count for conspiring to

commit Hobbs Act robbery in violation of 18 U.S.C. § 1951;

three counts of Hobbs Act robbery for hits on the Shop ‘n Save

and two other stores, Q-Mart and Alps Grocery Store, in

violation of 18 U.S.C. § 1951; and three counts of using a

firearm during each of these grocery store robberies—all

crimes of violence—in violation of 18 U.S.C. § 924(c)(1)(A). He

was not charged with robbing the drug dealers. Holton

pleaded guilty to two counts—Hobbs Act robbery of the Shop

‘n Save and the § 924(c) charge of doing so while using a

firearm—but he went to trial on the other charges. A jury
No. 17-1406 3

found him guilty of conspiracy but acquitted him of the

remaining charges.

The parties did not contest the judge’s calculations of the

Guidelines ranges for Holton’s crimes. For the § 924(c) offense

for which Holton had pleaded guilty, the judge determined

that it carried at least a seven-year sentence, to be served

consecutively to any other sentence imposed. As to the

convictions for conspiracy and robbing the Shop ‘n Save,

grouped together for Guidelines purposes, see U.S.S.G.

§ 3D1.2(a), the judge declared that the advisory Guidelines

range was 41-51 months based on Holton’s offense level of 20

and criminal history category of III.

Holton requested a prison term that fell “at the low end” of

the Guidelines range, but focused his sentencing argument

on why he should not receive a term above the Guidelines

range. He argued that it would violate his Fifth and Sixth

Amendment rights if the court decided that acquitted conduct

(the Q-Mart and Alps Grocery Store robberies) and uncharged

conduct (the drug-dealer robberies) justified him receiving an

above-Guidelines sentence. He contended that if the judge

considered this conduct relevant, she would repudiate the

jury’s verdict and unconstitutionally punish him for crimes for

which he was not convicted. 

The government argued that, in considering the factors

under 18 U.S.C. § 3553(a), the court should impose a sentence

of 25 years’ imprisonment because Holton was “one of the

most violent and dangerous criminals in our society.” The

government focused on the expansive nature and circumstances of the conspiracy. The government asserted that a
4 No. 17-1406

preponderance of the evidence showed that Holton had

robbed at gunpoint various drug dealers and the Q-Mart and

Alps Grocery Store before the conspiracy led him to commit

the Shop ‘n Save robbery. The government also contended that

an above-Guidelines sentence was needed “to reflect the

danger of bodily harm Holton created” during the robberies

and to protect the public by “incapacitat[ing]” him. 

The district judge imposed prison terms of 96 months for

the conspiracy offense and 51 months for the robbery conviction, to be served concurrently, and 84 months for the § 924(c)

offense, as well as five years’ supervised release. The judge

acknowledged that shehadthediscretion to consider acquitted

conduct but declined to do so because, she said, that would

“totally denigrate[] the Sixth Amendment and would [] be

tantamount to jury nullification.” But the judge also thought

a sentence within the Guidelines range for the conspiracy

offense would not appropriately reflect the seriousness or

nature of this crime. She explained that based on the trial

evidence, the conspiracy began with “robbing drug dealers”

and “evolved” into robbing other businesses, including the

Shop ‘n Save. Because the drug-dealer robberies were “connected in a substantial way to the conspiracy charge and

conviction,” they were “significantly relevant” to the “nature

and circumstances of that conspiracy” as “uncharged conduct

which I have authority to consider.” The judge ultimately

decided that the drug-dealer robberies warranted a harsher

sentence.

On appeal, Holton argues that the district judge imposed

a substantively unreasonable sentence by relyingonuncharged

conduct (the drug-dealer robberies) as the basis for imposing
No. 17-1406 5

an above-Guidelines sentence on the conspiracy count. He first

contends that the judge wrongly supplanted the jury’s factfinding role and improperly used a preponderance-of-theevidence standard (instead of beyond a reasonable doubt)

when determining that he robbed drug dealers. In support of

this argument, he quotes Justice Scalia, who, in a dissent from

a denial of certiorari, disapproved of judges finding facts at

sentencing about uncharged or acquitted conduct. According

to Justice Scalia, “any fact necessary to prevent a sentence from

being substantively unreasonable—thereby exposing the

defendant to the longer sentence—is an element that must be

either admitted by the defendant or found by the jury.” Jones

v. United States, 135 S. Ct. 8, 8 (2014) (Scalia, J., dissenting from

the denial of certiorari). In the alternative, Holton asserts that

the district judge wrongly assumed that “if Appellant was

convicted on the conspiracy count, it was proven beyond a

reasonable doubt that Appellant was involved with the

uncharged conduct ... .”

Neither argument is availing. The Supreme Court has long

authorized judges to consider at sentencing criminal conduct

that is relevant to the offense of conviction, even if the defendant was not was convicted for that conduct, “so long as that

conduct has been proved by a preponderance of the evidence.”

United States v. Watts, 519 U.S. 148, 157 (1997). See also United

States v. Heckel, 570 F.3d 791, 797 (7th Cir. 2009). Exercising this

discretion does not violate a defendant’s constitutional rights

because as the Court explained, “sentencing enhancements do

not punish a defendant for crimes of which he was not convicted, but rather increase his sentence because of the manner

in which he committed the crime of conviction.” Watts, 519 U.S.
6 No. 17-1406

at 154. The dissent in Jones does not undermine Watts as

controlling authority.

In this case, the judge’s sentencing of Holton for the

conspiracy conviction complied with Watts. Although she did

not state explicitly that Holton more likely than not robbed

drug dealers, she said enough to show that she reached this

conclusion and therefore did not err. When a judge does

not find explicitly that a defendant committed uncharged

conduct by a preponderance of the evidence, the sentence will

be upheld if “it is clear from the record” that the judge determined that the defendant is responsible for it. United States v.

White, 737 F.3d 1121, 1141 (7th Cir. 2013) (internal quotation

marks and citation omitted). At sentencing, the judge explained that the drug-dealer robberies “represent[ed] uncharged conduct which I have authority to consider.” The trial

evidence, she observed, showed that the robbery conspiracy

had “evolved” from robbing drug dealers to robbing the Shop

‘n Save. The earlier robberies therefore were “significantly

relevant” to her considerationof “thenature and circumstances

of that conspiracy offense.” These statements also rebut

Holton’s alternative argument that the judge incorrectly

assumed that the conspiracy conviction meant that the government had proven the drug-dealer robberies beyond a reasonable doubt. The judge merely decided that the earlierrobberies

were relevant to sentencing Holton for the conspiracy offense

and that she was satisfied from the trial evidence that the

conduct had occurred.

The judgment of the district court is AFFIRMED.