United States of America v.  Paul Thomas Kinter

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4621 
PAUL THOMAS KINTER,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CR-98-493-DKC)
Argued: September 26, 2000
Decided: December 19, 2000
Before NIEMEYER and TRAXLER, Circuit Judges, and
Frederick P. STAMP, Jr., Chief United States District Judge
for the Northern District of West Virginia, sitting by designation.
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Traxler and Chief Judge Stamp joined.
COUNSEL
ARGUED: Martin Gregory Bahl, FEDERAL PUBLIC DEFEND-
ER’S OFFICE, Baltimore, Maryland, for Appellant. Rod J. Rosen-
stein, Assistant United States Attorney, Greenbelt, Maryland, for
Appellee. ON BRIEF: James Wyda, Federal Public Defender, Susan
M. Bauer, Assistant Federal Public Defender, Barry J. Pollack, Assis-

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tant Federal Public Defender, Baltimore, Maryland, for Appellant.
Lynne A. Battaglia, United States Attorney, Jan Paul Miller, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.
OPINION
NIEMEYER, Circuit Judge:
For his bribery-related convictions, Paul Kinter was sentenced to
46 months imprisonment, a term based on the amount of benefit that
a government contractor received as a result of the bribes rather than
the lesser amount of benefit that Kinter personally received from the
scheme. It is this lesser amount that Kinter contends is appropriate to
consider under U.S.S.G. § 2C1.1(b)(2)(A). Because the Sentencing
Guidelines’ general application principles stated in § 1B1.3(a)(1)
instruct that a court’s determination of the amount of "benefit
received" must be informed by the scope of Kinter’s activities as well
as the reasonably foreseeable activities of persons acting jointly with
him, we affirm. In doing so, we also reject Kinter’s argument that the
Supreme Court’s recent decision in Apprendi v. New Jersey, 120
S. Ct. 2348 (2000), renders his sentence unconstitutional because it
was based in part upon judge-made findings pursuant to the Sentenc-
ing Guidelines.
I
When Scott King, an IRS employee, informed Paul Kinter, his for-
mer father-in-law, during the summer of 1990 that the IRS planned
to consolidate many of its computer maintenance contracts into a sin-
gle, multimillion dollar contract that it would award to a company
certified by the Small Business Administration as a § 8(a) contrac-
tor,* the two men decided to sell King’s influence at the IRS in
exchange for kickbacks from a yet-to-be-identified company for
whom they would obtain the contract. At the time, King was the tech-
*Section 8(a) of the Small Business Act, 15 U.S.C. § 637(a), autho-
rizes the award of United States government procurement contracts to
socially and economically disadvantaged small business concerns.
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nical representative for the IRS’s Martinsburg, West Virginia facility
and the person on whom the contracting officer, who had authority to
award the procurement contract, relied.
With the assistance of a co-conspirator, Mark Nicholas, Kinter
eventually located and brought into the scheme Washington Data Sys-
tems, Inc., and its subcontractor RGI, Inc. (collectively "Washington
Data"), as a § 8(a) contractor. In furtherance of the scheme, Washing-
ton Data hired Kinter and Nicholas as "consultants" and agreed to pay
them a kickback of approximately 3% of any revenue that Kinter and
Nicholas would secure for Washington Data. Kinter and Nicholas
were to pay King his share from their amount. Kinter and Nicholas
initially paid King approximately $300 per week. After King recom-
mended Washington Data to the contracting officer and Washington
Data obtained its first purchase order, King’s payments increased to
$500 per week. Washington Data had no previous experience in com-
puter maintenance and would not have received the IRS’s contract but
for King’s influence with the contracting officer.
Following the successful completion of that first contract, Wash-
ington Data had its "foot in the door" and received approximately 30
short-term and long-term purchase orders from the IRS over the fol-
lowing 5 years. As Kinter had anticipated, the revenues to Washing-
ton Data from these contracts exceeded $57 million, generating $9.5
million in profits for Washington Data. Although King ceased to be
the technical representative at the IRS’s Martinsburg facility in 1992,
Kinter and King continued to receive payments from Washington
Data until December 1996. In the aggregate, Kinter received between
$340,000 and $350,000 from Washington Data, and he paid a sub-
stantial portion of this amount to King.
The grand jury indicted Kinter in December 1998 on charges of
conspiracy, in violation of 18 U.S.C. § 371; bribery of a public offi-
cial, in violation of 18 U.S.C. § 201(b)(1); and payment of a gratuity
to a public official, in violation of 18 U.S.C. § 201(c)(1)(A). Follow-
ing Kinter’s guilty plea to the charges, the district court sentenced
Kinter to two concurrent 46-month terms of imprisonment on the
bribery and conspiracy charges, and one concurrent 24-month term on
the gratuity charge. In calculating Kinter’s sentences for the bribery
and conspiracy counts, the district court enhanced Kinter’s offense
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level by 14 levels based on the $9.5 million in benefits received by
Washington Data as a result of the bribery scheme. In doing so, the
court rejected Kinter’s argument that it should have considered only
the $340,000-to-$350,000 amount that Kinter personally received.
Had the court accepted Kinter’s position, it would have enhanced
Kinter’s offense level only 8 levels, exposing him to a sentencing
range of 24-30 months imprisonment.
This appeal followed.
II
For bribery offenses, the Sentencing Guidelines provide that the
sentence shall be enhanced by the greatest of (1) the value of the brib-
ery payment, (2) the "benefit received or to be received" as a result
of the bribery payment, or (3) the loss to the government. U.S.S.G.
§ 2C1.1(b)(2)(A). If the dollar amount so identified exceeds $2,000,
the enhancement is prescribed by the table contained in U.S.S.G.
§ 2F1.1. See id. That table provides an 8-level enhancement if the dol-
lar amount is more than $200,000, and a 14-level enhancement if the
dollar amount is more than $5 million. See id. § 2F1.1(b)(1).
The government contends that the proper measure for determining
the enhancement in this case is the "benefit received" by Washington
Data — the $9.5 million profit that it received from the IRS contracts,
yielding the 14-level enhancement that the district court found in this
case. Kinter contends that because he was paid between $340,000 and
$350,000, the 8-level enhancement is the correct one. He argues that
the § 2C1.1 enhancement contemplates only the amount of benefit
that he personally received, not the benefit received by Washington
Data.
Because resolution of this issue turns primarily upon the legal
interpretation of the Sentencing Guidelines, our standard of review is
de novo. See United States v. Nale, 101 F.3d 1000, 1003 (4th Cir.
1996); United States v. Jones, 31 F.3d 1304, 1315 (4th Cir. 1994).
Kinter’s argument discounts the effect of his crime in a manner that
is contrary to the explicit provisions of the Sentencing Guidelines.
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Section 2C1.1(b)(2) characterizes a "benefit received" as a "specific
offense characteristic," and § 1B1.3(a)(1), providing general applica-
tion principles for the Sentencing Guidelines, instructs that "specific
offense characteristics" are to be determined on the basis of
(A) all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or will-
fully caused by the defendant; and
(B) in the case of a jointly undertaken criminal activity
(criminal plan, scheme, endeavor, or enterprise
undertaken by the defendant in concert with others,
whether or not charged as a conspiracy), all reason-
ably foreseeable acts and omissions of others in fur-
therance of the jointly undertaken criminal activity,
that occurred during the commission of the offense of con-
viction, in preparation for that offense, or in the course of
attempting to avoid detection or responsibility for that
offense . . . .
U.S.S.G. § 1B1.3(a)(1) (emphases added). These provisions create
two separate bases upon which we conclude that "benefit received,"
for the purposes of sentencing Kinter, must include Washington
Data’s $9.5 million profit from the IRS contracts. First, Kinter
induced, procured, and willfully caused Washington Data to obtain
the IRS contracts. As the district court found:
Mr. Nicholas may have been more important than Mr. Kin-
ter in getting to an 8(a) [contractor] that was willing to pay
the kickbacks, but Mr. Kinter was no less instrumental in
arranging for this three-way relationship to take place.
He not only, in my view, was necessary to that beginning,
he participated in it, . . . [and he] was intimately involved
in the decisions that the coconspirators made and carried
out.
* * *
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Mr. Kinter was very involved in the ongoing process of
receiving the commissions from [Washington Data] and get-
ting them laundered and split up.
These findings alone make the $9.5 million in profits received by
Washington Data relevant to the § 2C1.1 calculus through the appli-
cation of § 1B1.3(a)(1)(A).
The district court also found that Kinter and Washington Data
undertook the bribery conspiracy jointly and that during the conspir-
acy Kinter foresaw the scope of the continued course of dealing
between the IRS and Washington Data, thus rendering the contrac-
tor’s profits includable also through application of § 1B1.3(a)(1)(B).
The district court stated from the bench,
[T]he initiation of this and the continuing receipt of the
commissions [from Washington Data] is all part of the con-
duct that constitutes the bribery scheme. There was no
break, no unforeseen intervening event that stopped the
course of this bribery scheme. The fact that IRS continued
dealing with [Washington Data] was not unforeseen. It was,
in fact, foreseen. It was the purpose of setting up the
arrangement.
(Emphasis added). The court found further,
[Washington Data] decided to take [Nicholas and Kinter] up
on their offer and benefited mightily from it, so did Mr. Kin-
ter, financially while it lasted, and I don’t think that the $9.5
million or, frankly, over $5 million, the 14 level adjustment
overrepresents the seriousness of what happened here.
These findings likewise make the full $9.5 million relevant in the
§ 2C1.1 determination. See United States v. Agostino, 132 F.3d 1183,
1196-97 (7th Cir. 1997) (holding that the district court should have
considered only personal benefit in its § 2C1.1 calculation because
the relevant criminal activity was not "jointly undertaken"); United
States v. Pretty, 98 F.3d 1213, 1222 (10th Cir. 1996) (discussing the
foreseeability of co-conspirators’ profits in the § 2C1.1 context).
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In addition to the broad scope of activities made relevant by both
subsections (A) and (B) of § 1B1.3(a)(1), Kinter’s position is in ten-
sion with the Sentencing Guidelines commentary, which provides that
"for deterrence purposes, the punishment [for bribery] should be com-
mensurate with the gain to the payer or the recipient of the bribe,
whichever is higher." U.S.S.G. § 2C1.1, cmt. background; see also
United States v. Muldoon, 931 F.2d 282, 289 (4th Cir. 1991) (citing
analogous commentary). Thus, in cases involving a middleman in a
bribery scheme, such as Kinter, a court should first determine which
party was, in actuality, the payer of the bribe and then calculate the
gain to that payer. This analysis differs little in substance from the
inquiry required by § 1B1.3(a)(1). If Kinter had acted within his indi-
vidual capacity — if, for example, he had bribed the government offi-
cial without Washington Data’s knowledge — Washington Data’s
profits would not have been an accurate measure of the "gain to the
payer." Because, however, Kinter acted as an agent for Washington
Data, Washington Data was, in reality, the relevant payer, and Kin-
ter’s sentence was properly enhanced by the gain to Washington Data.
See United States v. Bankston, 182 F.3d 296, 317-18 (5th Cir. 1999);
Agostino, 132 F.3d at 1196-97 n.5 (citing Muldoon, 931 F.2d at 289).
This commentary thus reflects the Sentencing Commission’s
informed belief that the repugnance of a middleman’s crime and the
magnitude of its effect upon the efficient operation of government are
more accurately measured by the ultimate payer’s profits than by the
middleman’s relatively scant take from the scheme. See United States
v. Gillam, 167 F.3d 1273, 1278-79 (9th Cir. 1999).
At bottom, because substantial evidence supported the lower
court’s finding that Kinter acted on Washington Data’s behalf, the
district court’s inclusion of the $9.5 million in its § 2C1.1 calculus
was consistent with the Sentencing Guidelines and its commentary.
Notwithstanding these Sentencing Guidelines’ instructions, Kinter
argues skillfully that our decision in United States v. Ellis, 951 F.2d
580 (4th Cir. 1992), confines the scope of "benefit received" under
§ 2C1.1 to the defendant’s personal benefit. We do not agree, how-
ever, with this reading of Ellis. In Ellis, the defendant, a limited part-
ner in a dog track, was convicted of paying bribes to West Virginia
legislators in return for their votes in support of a bill that increased
the profitability of such tracks statewide. Rejecting the government’s
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argument that the benefit to at least two tracks in the state should have
been considered in sentencing the defendant, we stated, "Neither the
provision itself nor precedent requires that vicarious liability apply to
§ 2C1.1 calculations." Id. at 585. Kinter, interpreting this passage
broadly, concludes that Ellis stands for the proposition that "vicarious
liability has no applicability in calculating the § 2C1.1 enhancement."
We were careful in Ellis, however, to limit our holding to its spe-
cific facts and distinguish Muldoon, a case in which we stated that the
district court should not focus upon the defendant’s personal benefit
when making § 2C1.1 determinations. The Ellis decision labeled the
Muldoon statement "dictum," see Ellis, 951 F.2d at 585, and in any
event distinguished it, saying,
Muldoon involved discrete government contracts, for which
there is a reliable measure of the total benefit received —
net profit on the illegally obtained contract. In contrast, cal-
culating the total benefit received by companies who profit
from improperly passed legislation is a far less certain
endeavor, one that (as this case suggests) is potentially limit-
less in reach.
Ellis, 951 F.2d at 586 (citing Muldoon, 931 F.2d at 289); see also
United States v. Kant, 946 F.2d 267, 269 (4th Cir. 1991) (using, with-
out protest from the defendant, corporate benefit as the measure of
"benefit received").
Our driving concern in Ellis was the difficulty inherent in comput-
ing the total benefit from the bribe-induced legislation at issue — a
vague, indeterminate measure that would have extended to persons
and business that had no direct relationship with the defendant. Cf.
Gillam, 167 F.3d at 1279 ("In Ellis, the court of appeals simply
rejected the government’s cross-appeal from a determination that the
§ 2C1.1 enhancement for benefit received does not permit the court
to take into account benefits received by entities not participants in
the bribery scheme"). Significantly, we did not hold in Ellis that "ben-
efit received" never includes corporate benefits; rather, we merely
concluded that personal benefit might be the more appropriate mea-
sure in a case in which the court could not readily determine the third-
party beneficiary’s total profits. And we specifically provided that in
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factual circumstances involving "discrete government contracts" —
such as the IRS contracts in the case before us — the district court
need not confine its analysis to the defendant’s personal benefit. Ellis,
951 F.2d at 586.
Perhaps more important to the applicability of Ellis to the case
before us is the fact that we rendered our decision in Ellis prior to the
1992 amendments to U.S.S.G. § 1B1.3. Under the pre-1992 guideline,
specific offense characteristics were determined only on the basis of
"all acts and omissions committed or aided and abetted by the defen-
dant." That provision did not include the language currently found in
§ 1B1.3(a)(1)(A) that encompasses acts and omissions "induced, pro-
cured, or willfully caused by the defendant." See U.S.S.G. Appendix
C, amend. 439. More significantly, the pre-1992 version of § 1B1.3
contains no analogue to the current § 1B1.3(a)(1)(B), which includes
in the determination all reasonably foreseeable acts in furtherance of
a jointly undertaken criminal activity. Thus, the 1992 amendments to
§ 1B1.3 have abrogated the Ellis court’s rejection, in the § 2C1.1 con-
text, of "the principle that a conspirator must answer for his conduct
and for all foreseeable consequences of it," Ellis, 951 F.2d at 585 (cit-
ing Pinkerton v. United States, 328 U.S. 640 (1946)), at least insofar
as the "benefit received" flows to other co-conspirators.
Thus, because the pertinent language in Ellis has no application to
the facts of this case and, in any event, has been put into question by
subsequent amendments to the Sentencing Guidelines, its holding
does not bar us from imputing to Kinter, in accordance with the Sen-
tencing Guidelines, all of the benefits received by Washington Data
as a result of his bribery activities. In so holding, we join all of the
other circuit courts that have considered the issue, which have uni-
formly held that when a middleman defendant acts on behalf of a
third-party payer of the bribe, the district court may consider the
payer’s bribe-generated benefits when calculating the "benefit
received" under U.S.S.G. § 2C1.1, as long as those profits were rea-
sonably foreseeable or the result of acts aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the defendant.
See Bankston, 182 F.3d at 317-18 (5th Cir.); Gillam, 167 F.3d at
1278-79 (9th Cir.); United States v. Muhammad, 120 F.3d 688, 699-
700 (7th Cir. 1997); Pretty, 98 F.3d at 1222 (10th Cir.); United States
v. Ziglan, 964 F.2d 756, 758 n.3 (8th Cir. 1992); cf. United States v.
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Cohen, 171 F.3d 796, 803 (3d Cir. 1999) (interpreting "benefit con-
ferred" language of U.S.S.G. § 2B4.1 as contemplating corporate ben-
efit); United States v. Landers, 68 F.3d 882 (5th Cir. 1995) (assuming,
without deciding, the same).
III
Seizing upon the Ellis court’s discussion of the reliability-of-profit
measures, Kinter also contends that the $9.5 million profit figure was
not sufficiently reliable to be included in the district court’s calcula-
tion of "benefit received." He argues that the $9.5 million amount rep-
resents benefits received by Washington Data not only for contracts
to which the bribes were directly related but also subsequent contracts
awarded to Washington Data. Kinter’s argument is grounded upon his
assertion that he made payments to King only in exchange for King’s
recommendation that Washington Data be awarded an initial contract,
valued at $950,000. He maintains that after the first contract, a combi-
nation of institutional inertia, competent performance by Washington
Data, and a lack of other qualified § 8(a) contractors led to the subse-
quent awards worth $57 million to Washington Data over the course
of several years. In other words, he claims that the evidence did not
support the sentencing court’s finding that his bribes were the but-for
cause of the $9.5 million benefit to Washington Data. The district
court’s determination on this mixed question of law and fact is sub-
jected to a standard approximating clear error review when, as here,
the issues involved are "essentially factual." United States v.
Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989).
The threshold for the causation inquiry for § 2C1.1 calculations is
relatively low. Cf. United States v. Sapoznik, 161 F.3d 1117, 1119
(7th Cir. 1998) ("To show that the bribes benefited the people paying
them . . . it is enough for the government to show that the bribes facil-
itated the gambling operations"). In this case, Kinter’s resume and
handwritten notes show his expectation that the initial bribe would
allow Washington Data to get its "foot in the door" and thereafter pro-
duce $60 million in revenues for Washington Data. The district court
also cited testimony that Kinter remained involved in the scheme long
after the first contract, that "[h]is consulting fees continued," and that
"Mr. Kinter was very involved in the ongoing process of receiving the
commissions from [Washington Data] and getting them laundered and
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split up." Furthermore, there was testimony that Washington Data
would not have bid on the contracts absent Kinter’s intervention and
that the contracting officer relied upon King’s advice. The record
amply supports these factual findings.
Kinter points out that the "foot in the door" evidence should not
justify an analysis that would permit the "‘benefit received’ to run in
perpetuity." While we agree with this observation, we note that
U.S.S.G. § 1B1.3 places an important limitation on this analysis. That
section provides that defendants may be held responsible for actions
taken in furtherance of a jointly undertaken criminal activity only
when those acts are "reasonably foreseeable." U.S.S.G.
§ 1B1.3(a)(1)(B). Thus, even though we agree that Kinter might not
have been held responsible, under a foreseeability standard, for reve-
nues accruing to Washington Data that exceeded $60 million, the evi-
dence supports a conclusion that Kinter expected the illegal conduct
to produce up to $60 million in revenues, the amount that yielded $9.5
million in direct benefits to Washington Data. Indeed, as the district
court found, "there is a very strong link" between the amount of the
bribe paid to King and Washington Data’s $9.5 million profit from
the continued contracts with the IRS, the securing of which was "the
purpose of setting up the arrangement."
IV
Finally, we permitted Kinter to file a supplemental brief addressing
the relevance to his case of the Supreme Court’s recent decision in
Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). Because he failed to
raise this issue below, we review the district court’s decision for plain
error. See United States v. Hastings, 134 F.3d 235, 239 (4th Cir.
1998).
At issue in Apprendi was a New Jersey hate crime statute that pro-
vided for the enhancement of a defendant’s sentence if the trial judge
found, by a preponderance of the evidence, that the offense was com-
mitted with a "purpose to intimidate an individual or group of individ-
uals because of race, color, gender, handicap, religion, sexual
orientation or ethnicity." Apprendi, 120 S. Ct. at 2351 (quoting N.J.
Stat. Ann. § 2C:44-3(e) (internal quotation marks omitted)). After
Apprendi fired several bullets into the home of an African-American
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family in a previously all-white neighborhood, he pled guilty before
a state court to a firearm possession charge for which the maximum
penalty, as established by New Jersey statute, was 10 years imprison-
ment. See id. at 2352. The trial court, however, found by a preponder-
ance of the evidence that Apprendi’s conduct was "motivated by
racial bias" and sentenced him to a 12-year term. Id. After the New
Jersey Supreme Court affirmed the judgment, the United States
Supreme Court reversed, concluding that "[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt." Id. at 2362-63. Because
Apprendi had not admitted his bias in the plea agreement and New
Jersey had not proven that bias to a jury beyond a reasonable doubt,
the Court concluded that Apprendi could be subjected only to the 10-
year maximum punishment for firearm possession — the only crime
for which he had waived the process guaranteed to him by the Fifth
and Fourteenth Amendments. See id. at 2355-56.
In the case before us, the sentencing judge determined, under a pre-
ponderance standard, that Kinter paid more than one bribe and that
Washington Data’s profit was $9.5 million — findings that required
the court to impose a sentence of between 46 and 57 months. In the
absence of these findings, the maximum punishment allowable under
the Sentencing Guidelines for a person standing in Kinter’s shoes
would have been ten months. See U.S.S.G. § 2C1.1; id. Ch. 5, Pt. A
(Sentencing Table). Kinter therefore contends that Apprendi required
those two facts to be submitted to a jury and proven beyond a reason-
able doubt before they could form the basis of an enhancement of his
sentence. This contention essentially boils down to an argument that
Apprendi renders much, if not all, of the current sentencing practices
under the Sentencing Guidelines unconstitutional. Under Kinter’s
interpretation of Apprendi, any determination that has the real effect
of increasing the maximum punishment to which a defendant is sub-
ject under the Sentencing Guidelines must be made by a jury and
proven beyond a reasonable doubt.
The Apprendi Court, however, did not paint with the broad brush
that Kinter now offers us. On the contrary, the majority opinion
explicitly limited its holding to factual determinations "that increase[ ]
the penalty for a crime beyond the prescribed statutory maximum."
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Apprendi, 120 S. Ct. at 2362-63 (emphasis added). The outcome of
our case thus turns upon the definition of "prescribed statutory maxi-
mum." If the district court’s factual findings did not result in an
enhancement that exceeded that maximum, Apprendi is irrelevant.
The government contends, and all of the Courts of Appeals to have
considered the issue have thus far agreed, that to find the "prescribed
statutory maximum" as contemplated in Apprendi, one need only look
to the language of the statute criminalizing the offense, and no fur-
ther. See United States v. Nealy, No. 99-15211, 2000 WL 1670932,
at *4 n.3 (11th Cir. Nov. 7, 2000); United States v. Doggett, No. 99-
50380, 2000 WL 1481160, at *4 (5th Cir. Oct. 6, 2000); Talbott v.
Indiana, 226 F.3d 866, 869 (7th Cir. 2000). If we followed that con-
clusion, we would have to reject Kinter’s Apprendi claim, as the stat-
utes at issue in this case — 18 U.S.C. §§ 201(b)(1) and 371 — permit
sentences of up to 15 and 5 years, respectively, which are well in
excess of the 46-month concurrent sentences that Kinter received.
Although we ultimately agree with the conclusion reached by these
other Courts of Appeals, Kinter’s argument is not without support,
and the issue is sufficiently complex to warrant a brief discussion
here. After all, the Apprendi dissenters expressed their fear that
Apprendi would eventually stand for the principle that "a defendant
is entitled to have a jury decide, by proof beyond a reasonable doubt,
every fact relevant to the determination of [his] sentence under a
determinate-sentencing scheme" — a fear that the majority did little
to allay. Apprendi, 120 S. Ct. at 2393-94 (O’Connor, J., dissenting).
Moreover, claims such as Kinter’s are indeed covered by the holding
of Apprendi if the relevant "prescribed statutory maximum" is found
in the Sentencing Guidelines rather than on the face of the relevant
substantive statute.
And though we reject it here, there is at least a colorable argument
that the Sentencing Guidelines do provide that maximum. As Justice
Thomas noted in his concurring opinion in Apprendi, "the Guidelines
‘have the force and effect of laws.’" Apprendi, 120 S. Ct. at 2380 n.11
(Thomas, J., concurring) (quoting Mistretta v. United States, 488 U.S.
361, 413 (1989) (Scalia, J., dissenting)). Moreover, because the maxi-
mums set by the Sentencing Guidelines may not be exceeded by sen-
tencing judges, they are legally binding enactments in a manner
nearly indistinguishable from congressionally enacted criminal stat-
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utes. If, for example, the district court in this case had sentenced Kin-
ter to 59 months imprisonment on the bribery charge, we would have
been required to vacate it because the court would have disregarded
the maximum 57-month penalty for Kinter’s crime prescribed by law
(i.e., by the Sentencing Guidelines) — even though the 59-month sen-
tence would have been well below the 15-year maximum established
by 18 U.S.C. § 201(b)(1). See Mistretta, 488 U.S. at 413 (Scalia, J.,
dissenting). Moreover, the sentencing ranges promulgated by the
Commission — including their maximums and minimums — are
incorporated into the federal statutes by 18 U.S.C. § 3553(b).
If this analysis were correct, Apprendi would indeed work a water-
shed change upon the federal courts’ current sentencing practices.
District courts would no longer be permitted to make factual determi-
nations that had the effect, in any real sense, of enhancing the defen-
dant’s sentence, and the Sentencing Guidelines would thus be
rendered essentially useless, insidiously undermining the constitu-
tional seal of approval bestowed upon the Sentencing Commission by
the Supreme Court in Mistretta. Cf. Apprendi, 120 S. Ct. at 2391-95
(O’Connor, J., dissenting) (warning that the majority opinion would
have precisely this effect). But cf. id. at 2400 (Breyer, J., dissenting)
(noting that the majority had expressed "no constitutional objection"
to the Guidelines).
We conclude, however, that the Sentencing Guidelines pass muster
under the Apprendi Court’s conception of due process for reasons that
closely parallel the principles animating the Mistretta Court’s
separation-of-powers-based decision. Mistretta made clear that the
Sentencing Commission and its Sentencing Guidelines enjoy a unique
constitutional status. See Apprendi, 120 S. Ct. at 2380 n.11 (Thomas,
J., concurring). Although Congress delegated significant legislative
power to the Commission to "promulgate sentencing guidelines for
every federal criminal offense," Mistretta, 488 U.S. at 371, the sub-
stance of that delegation is decidedly nonlegislative in character. The
Sentencing Guidelines’ function — to "impose sentences within the
broad limits established by Congress," id. at 396 — is, the Mistretta
Court explained, "clearly attendant to a central element of the histori-
cally acknowledged mission of the Judicial Branch," id. at 391 (com-
paring the Guidelines to the Federal Rules of Criminal and Civil
Procedure). In other words, the Commission’s act of establishing sen-
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tencing ranges in the Guidelines is categorically different from the
legislative act of setting a maximum penalty in a substantive criminal
statute. The Commission’s task is not the fundamentally legislative
one of creating and delineating hundreds of new crimes through the
Guidelines. See id. at 373 n.7. Instead, the Sentencing Guidelines are
merely "a constitutional mechanism for channeling the discretion that
a sentencing court would otherwise enjoy" in the absence of the
Guidelines. United States v. Mack, 229 F.3d 226, 244 (3d Cir. 2000)
(Becker, C.J., concurring).
This characterization of the Sentencing Guidelines is extremely
significant because the Supreme Court, in both Apprendi and its pre-
cursor, Jones v. United States, 526 U.S. 227 (1999), explained that
there is no constitutional infirmity in a trial court’s use of facts proven
only by a preponderance of the evidence when exercising the wide
discretion to "impos[e] a judgment within the range prescribed by
statute." Apprendi, 120 S. Ct. at 2358; see also Jones, 526 U.S. at 248
("It is not, of course, that anyone today would claim that every fact
with a bearing on sentencing must be found by a jury; we have
resolved that general issue and have no intention of questioning its
resolution"); cf. United States v. Watts, 519 U.S. 148, 156 (1997) (per
curiam) (holding that, in general, the use of a preponderance standard
at sentencing satisfies due process). There is, accordingly, no due pro-
cess infirmity in a district court’s use of similarly-proven facts to
determine a sentence under the constitutionally unique process estab-
lished by the Commission, which is itself part of the judicial branch,
given that the Sentencing Guidelines merely serve to regulate discre-
tion long entrusted to the sentencing judge. See Mistretta, 488 U.S.
at 396 (stating that the Guidelines "do no more than fetter the discre-
tion of sentencing judges to do what they have done for generations
— impose sentences within the broad limits established by Con-
gress"). Because Apprendi does not apply to a judge’s exercise of sen-
tencing discretion within a statutory range, the current practice of
judicial factfinding under the Guidelines is not subject to the
Apprendi requirements — at least so long as that factfinding does not
enhance a defendant’s sentence beyond the maximum term specified
in the substantive statute.
The Sentencing Guidelines do not create crimes. They merely
guide the discretion of district courts in determining sentences within
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a legislatively-determined range, and this discretion has been
entrusted to the federal courts "[f]rom the beginning of the Republic."
Apprendi, 120 S. Ct. at 2358 n.9 (quoting K. Stith and J. Cabranes,
Fear of Judging: Sentencing Guidelines in the Federal Courts 9
(1998) (internal quotation marks omitted)). Accordingly, we agree
with the conclusions reached by the Fifth, Seventh, and Eleventh cir-
cuits that the relevant "maximum" under Apprendi is found on the
face of the statute rather than in the Sentencing Guidelines. See Nealy,
2000 WL 1670932, at *4 n.3 (11th Cir.); Doggett, 2000 WL 1481160,
at *4 (5th Cir.); Talbott, 226 F.3d at 869 (7th Cir.); cf. Apprendi, 120
S. Ct. at 2366 n.21 (citing, with seeming approval, language from
Edwards v. United States, 523 U.S. 511, 515 (1998), indicating that
the statute itself provides the relevant maximum). Because the sen-
tencing enhancements at issue in this case did not extend Kinter’s
sentence beyond the maximums prescribed for his offenses by the
substantive provisions of the United States Code, the government was
not required to submit to a jury and prove beyond a reasonable doubt
the facts relevant to those enhancements.
For this reason and the others given above, the judgment of the dis-
trict court is
AFFIRMED.
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