United States of America v. Marshall Dwayne Hughes

*Although Judge Ryan was not present for the oral argument in this
app eal, he otherwise fully participated in the case and has listened with
care to the tape reco rded oral argume nts.
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.

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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
reversed and 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 one-
year 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

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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).

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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 three-
point 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.

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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.

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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.

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