In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-3006

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DANIEL P. BOOS,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 01-CR-109-C—Barbara B. Crabb, Chief Judge.

____________

ARGUED APRIL 1, 2003—DECIDED MAY 15, 2003

____________

Before FLAUM, Chief Judge, and COFFEY and EVANS,

Circuit Judges.

EVANS, Circuit Judge. On a November day in 1990, a

backhoe operator at a landfill in Minnesota was shocked

when he saw a severed arm fall out of a plastic bag lodged

in a pile of garbage he was trying to move. The arm carried a distinctive tattoo of a bare-chested woman riding

astride a tiger. The tattoo helped police establish that

the arm belonged to Robert Melby, a member of the Iron

Wings motorcycle “club,” a gang with headquarters in an

old farmhouse in rural Dunn County in northwest Wisconsin. Melby had been “missing” for some 6 months when his

arm was found.
2 No. 02-3006

Melby’s murder eventually became the tail that wagged

the dog in this prosecution a dozen years later of Daniel

Boos, the former president of the Iron Wings. Boos pled

guilty in 2002 to using the Iron Wings’ “clubhouse” to sell

drugs—cocaine and methamphetamine—and being a felon

in possession of firearms. 21 U.S.C. § 856(a)(1) and 18

U.S.C. § 922(g)(1). That set the stage for what turned out

to be the real battleground of the case, the government’s

claim that Boos’ sentence should be significantly enhanced because he murdered Melby. After a 2-day hearing,

the district judge was convinced that Boos had done the

deed, so she invoked the guidelines’ murder cross-reference,

U.S.S.G. § 2D1.1(d)(1), which considerably jacked up Boos’

penalty range. Instead of a sentence within a range of 121

to 151 months, Boos received a sentence of 30 years (240

months on one count and 120 on the other, to run consecutively). This enhancement forms the primary basis of

Boos’ appeal.

Boos argues that requiring proof of the murder only by

a preponderance of the evidence violated his due process rights because the application of the murder crossreference hiked up his sentence so severely.

First, relying on Apprendi v. New Jersey, 530 U.S. 466,

477 (2000), Boos claims that applying the cross-reference

essentially adds an element of the crime, and, as such, the

murder must be proved to a jury’s satisfaction beyond a

reasonable doubt. But Apprendi only applies to sentencing increases beyond the statutory maximum for the

underlying offense. Since Boos’ 30-year sentence was equal

to the combined statutory maximum for the two counts

of his conviction, Apprendi does not apply. See United

States v. Noble, 299 F.3d 907, 909-10 (7th Cir. 2002) (“Noble’s 30-year combined sentence does not exceed the

combined maximum for the two counts, so there was no

Apprendi violation.”).
No. 02-3006 3

Boos also argues that, at a minimum, the district court

should have required the government to show clear and

convincing evidence that he killed Melby. Although Boos

admits that the preponderance of the evidence standard

is generally applied when deciding what effect to give

relevant uncharged conduct at sentencing (and, in fact, an

enhancement can be proper for uncharged conduct even

if the defendant previously had been acquitted on charges

for that conduct), see United States v. Watts, 519 U.S. 148,

156-57 (1997), he claims his situation warrants an exception because his sentence increased so dramatically. Other

circuits have applied a clear and convincing standard in

similar situations. See United States v. Kikumura, 918 F.2d

1084, 1101 (3rd Cir. 1990); United States v. Shonubi, 103

F.3d 1085, 1089 (2nd Cir. 1997).

At times, we have suggested that a higher standard might

be necessary in the rare instance when a factual finding

will result in a sentencing increase so great “that the

sentencing hearing can fairly be characterized as ‘a tail

which wags the dog of the substantive offense.’ ” United

States v. Corbin, 998 F.2d 1377, 1387 (7th Cir. 1993)

(quoting United States v. Schuster, 948 F.2d 313, 315 (7th

Cir. 1991) (citations omitted)). See also United States

v. Smith, 308 F.3d 726, 748 (7th Cir. 2002) (“[T]he principle . . . remains viable.”); United States v. Rodriguez, 67

F.3d 1312, 1322 (7th Cir. 1995) (“Our decisions implicitly

have agreed with Kikumura to the extent that due process

considerations may, at some point, require a greater

showing for a dramatic increase.”); Schuster, 948 F.2d at

315-16 (finding that the difference between a sentence in

the 21-to-27-month range and a 5-year sentence was not

so “exceptional” as to require a higher burden of proof, but

implying that an “exceptional” situation would warrant

a higher burden of proof).

Despite suggestions in some of our cases, we have never

taken the final step and actually required the prosecution
4 No. 02-3006

to meet a clear and convincing evidence standard. In fact,

we have at times been critical of Kikumura’s basic premise.

See United States v. Ewers, 54 F.3d 419, 421 (7th Cir.

1995) (we have “not been sympathetic to the Kikumura

analysis”); United States v. Masters, 978 F.2d 281 (7th Cir.

1992). In Masters, we found:

A sentence at the top of the statutory range does

not punish Masters for a crime he didn’t commit; it uses

all available information about his character and

dangerousness in choosing the sentence for the crime

of which he stands convicted. Judges have been considering defendants’ activities and character since long

before there were guidelines, with consistent approval from the highest court. This is one reason why

we have held that judges may take other crimes into

account when selecting a sentence under the guidelines,

even if the defendant has been charged with and

acquitted of those crimes.

978 F.2d at 285 (citations omitted). As a result, we found

that “[a]lthough Kikumura expressed [its] conclusion in

constitutional terms, it is impossible to square such a

holding with McMillan—or with the history of discretionary sentencing in the United States.” Therefore, the

defendant’s due process argument went “nowhere.” Id. at

286 (citing McMillan v. Pennsylvania, 477 U.S. 79 (1986)

and noting that the Supreme Court has also held that

the preponderance standard is appropriate when deciding whether to use other-crimes evidence at trial, see

Huddleston v. United States, 485 U.S. 681, 690 (1988)).

Despite our castigation of Kikumura’s reasoning in

Masters, we did not reject Kikumura’s holding. That’s

because we were able to “defer until another day the

decision whether development in a common-law fashion

ever would lead to the use of a clear-and-convincing standard in sentencing,” 978 F.2d at 287, since the finding
No. 02-3006 5

of murder resulted in just a 4-level increase. We do not have

that option here, however, as the more than 17 additional

years Boos received from the application of the crossreference (more than doubling his sentence) qualifies

as “exceptional.” That seems to put Masters’ anti-Kikumura

train back on the track, ready to run into our suggestions

in Corbin and Schuster that we should require clear and

convincing evidence for drastic sentencing increases.

As we did in Masters, though, we can pull the emergency brake and avoid the collision of the two seemingly

incongruous lines of cases. That’s because the evidence

against Boos supports a finding of guilt even under a clear

and convincing evidence standard, making the choice of

standard irrelevant. See, e.g., Slaney v. The Int’l Amateur

Athletic Fed’n, 244 F.3d 580, 597 (7th Cir. 2001) (“[A]n

appellate court may affirm the district court’s dismissal

on any ground supported by the record, even if different

from the grounds relied upon by the district court.”).

Boos argues that the evidence does not support a finding of guilt even under a preponderance of the evidence

standard. Investigators found no blood or bullet fragments in the basement of the Iron Wings clubhouse, where

police think the murder took place (although at the time

of the search they did not know Melby had been killed, so

they were not looking for any signs of the murder).

In addition, there were no bullets found in the leg police

recovered (the other leg was never found). Boos claims

that contradicts a written description of the killing by

Randy Simonsmeier, the prosecution’s star witness to

whom Boos confessed (Simonsmeier wrote that Boos shot

Melby in the “kneecap’s,” suggesting that both legs should

have contained at least one bullet). Also, no fingerprints

were discovered on the plastic bags containing Melby’s

arm and leg, and police found no plastic bags at the

Iron Wings clubhouse that were like the ones found containing Melby’s arm and leg.
6 No. 02-3006

Without more physical evidence, prosecutors might have

struggled to prove Boos’ guilt beyond a reasonable doubt

(likely explaining why Boos was never brought up on state

murder charges). But the evidence was sufficient to conclude that it is “highly probable” that Boos killed Melby,

thus satisfying both the preponderance of the evidence

and clear and convincing evidence standards. See von

Gonten v. Research Sys. Corp., 739 F.2d 1264, 1268 (7th

Cir. 1984) (“ ‘highly probable’ . . . is the Supreme Court’s

definition of . . . ‘clear and convincing evidence’ ”) (citing

Colorado v. New Mexico, 467 U.S. 310 (1984)).

The best evidence of Boos’ guilt came from Simonsmeier,

who befriended Boos when the two spent time together in

federal prison. Simonsmeier testified that Boos told him

in detail how he had killed Melby because he thought

Melby, who Boos strongly suspected had been tipping off

police to illegal activities by Iron Wings members, had

stolen $10,000 and some drugs from him. Boos told

Simonsmeier that he lured Melby into the basement of the

Iron Wings clubhouse to confront him. When Melby denied

stealing the money and drugs, Boos shot him in the knee,

and, after Melby again denied the theft, Boos killed him

with a shot to the head. With help from his wife, Carrie,

and Iron Wings member Roger Waite, Boos cleaned up

the mess and cut Melby into pieces, then dropped the

body parts in various Minnesota dumpsters.

To support his story, Simonsmeier took the investigating officer to his home and pulled out an undated letter

describing the killing, the fear that caused Simonsmeier

to keep the story to himself, and the guilt he felt in staying quiet. Waite, who Simonsmeier said “didn’t look too

happy” when he found Boos telling Simonsmeier about

the murder, unwittingly also supported Simonsmeier’s

story. During a taped conversation containing several thinly

veiled references to the murder, Simonsmeier asked Waite

“Who else knows?”, to which Waite replied, “I ain’t got
No. 02-3006 7

the slightest. Only thing I know is you do and I’ve never

really liked that.”

Simonsmeier’s testimony was not the only evidence

against Boos. Iron Wings member William Wilson testified

that Boos told him he could have Melby’s tools because

Melby would not be coming back. He also testified that

Boos and Waite arranged for the septic system at the

Iron Wings clubhouse to be pumped in the summer of

1991, even though it had been pumped the previous year

(it has not been pumped since). Wilson’s wife testified

that Carrie Boos told her that Boos and Waite had killed

Melby and disposed of his body. Several other witnesses

also told tales consistent with Simonsmeier’s story. The

district court found all of the witnesses to be credible

with the exception of Waite, who testified that he and

Boos were not involved in Melby’s murder but “lost any

chance of appearing to be telling the truth when he

said he had never seen defendant deal drugs in the clubhouse.” Simonsmeier’s testimony and letter, combined with

Waite’s unintentional corroboration and the testimony of

the supporting witnesses, provided clear and convincing

evidence that Boos committed the murder.

In addition to his arguments against the application

of the murder cross-reference, Boos claims that the district court should not have imposed a 2-level enhancement for obstruction under U.S.S.G. §3C1.1. Boos also

thinks he deserved a 3-level reduction under U.S.S.G.

§3E1.1 for acceptance of responsibility. To prevail on either

claim, Boos must show clear error. See United States v.

Martin, 287 F.3d 609, 616 (7th Cir. 2002).

The obstruction of justice enhancement stems from Boos’

dealings with Iron Wings member Tony Allen, who was

arrested along with Abraham and Melissa Savage (Boos’

step-son and his wife) on drug charges. Boos suspected

Allen of tipping off police to the Savages’ activities. When
8 No. 02-3006

Allen got out of jail, two of his cars, a truck, a motorcycle,

and other valuable items were missing. Boos promised

Allen that he would get his property back if it turned out

that he had not been giving information to police.

A few months later, Allen was scheduled to testify before the federal grand jury when Boos cornered Allen

outside the hearing room and asked him about the proceedings. When police later found Boos sitting in a van outside the building, he claimed he was there to support

Melissa Savage (his daughter-in-law), who was also scheduled to appear that day. But the district court found that

story “just a little bit too much to ask in the way of my

credulity” in part because Boos and Savage were not very

close and they made the several-hour drive to the hearing in separate cars.

We agree with the district court’s conclusion that Boos’

conduct was “certainly . . . intended to intimidate” Allen.

Boos told Allen that his property would be returned only

if he did not turn out to have given information to police, then showed up when Allen was scheduled to testify

in an attempt to hammer that point home. Under those

circumstances, we cannot find clear error in the district

court’s conclusions.

As the district court found, Boos’ attempted intimidation of Allen also doomed his chances for a 3-level reduction under U.S.S.G. §3E1.1(b) for acceptance of responsibility. “Conduct resulting in an enhancement under

§3C1.1 . . . ordinarily indicates that the defendant has not

accepted responsibility for his criminal conduct. There

may, however, be extraordinary cases in which adjustments under both §§3C1.1 and 3E1.1 may apply.” U.S.S.G.

§3E1.1, cmt. n.4. See also United States v. Keeter, 130 F.3d

297, 299 (7th Cir. 1997). Boos offers no good reason why

this is the sort of “extraordinary case” that would qualify

as an exception to the ordinary rule. The district court,
No. 02-3006 9

accordingly, did not err when it declined to find that Boos

accepted responsibility for his conduct. The judgment of

the district court is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-15-03