United States of America v. COURTNEY BUTLER (98-5552) and JULIUS RETIC (98-5554)

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0110P (6th Cir.)
File Name: 00a0110p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
C OURTNEY BUTLER (98-5552)
and J ULIUS R ETIC (98-5554),
Defendants-Appellants.
;>

1
Nos. 98-5552/5554
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 97-20030—Julia S. Gibbons, Chief District Judge.
Argued and Submitted: June 18, 1999
Decided and Filed: March 29, 2000
Before: JONES, COLE, and CLAY, Circuit Judges.
_________________
COUNSEL
ARGUED: Stephen R. Leffler, Memphis, Tennessee, for
Appellant. Tony R. Arvin, ASSISTANT UNITED STATES
ATTORNEY, Memphis, Tennessee, for Appellee.
ON BRIEF: Randall P. Salky, THE LAW OFFICE OF
RANDALL SALKY, Memphis, Tennessee, Stephen R.
Leffler, Memphis, Tennessee, for Appellants. Tony R. Arvin,

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2 United States v. Butler, et al. Nos. 98-5552/5554
ASSISTANT UNITED STATES ATTORNEY, Memphis,
Tennessee, for Appellee.
CLAY, J., announced the judgment of the court and
delivered an opinion, in which JONES and COLE, JJ.,
concurred except as to Part II.B.1. JONES, J. (pp. 19-23),
delivered a separate opinion, in which COLE, J. concurred,
which constitutes the opinion of the court on the issue
addressed in Part II.B.1.
_________________
OPINION
_________________
CLAY, Circuit Judge. Defendant Courtney Butler appeals
from his judgment of conviction and sentence to 235 months
of imprisonment for his commission of armed bank robbery
in violation of 18 U.S.C. § 2113 and 18 U.S.C. § 2.
Defendant Julius Retic appeals from his judgment of
conviction and sentence to 120 months of imprisonment for
his commission of armed bank robbery in violation of 18
U.S.C. § 2113 and 18 U.S.C. § 2, and for using and carrying
a firearm during and in relation to a crime in violation of 18
U.S.C. § 924(c). For the reasons below, we AFFIRM the
judgment of the district court as to Butler, but VACATE
Retic’s sentence and REMAND his case for resentencing.
I.
On February 19, 1997, a federal grand jury sitting in the
Western District of Tennessee returned an indictment
charging Courtney Butler and Julius Retic, along with three
other individuals, with twelve counts of criminal activity.
The relevant facts surrounding their separate offenses and
their respective sentencings are as follows.
Nos. 98-5552/5554 United States v. Butler, et al. 23
beyond the initial directive, we believe the original twenty-
one year old age limit is sufficiently clear to overcome an
argument from silence.
Our hesitance to infer too much from mere “silence” is
driven by our concern that doing so would lead courts wholly
to abandon their role of assessing whether enacted guidelines
comport with Congressional intent. Indeed, Congress “can
revoke or amend any or all the Guidelines as it sees fit either
within the 180-day waiting period . . . or at any time.”
Mistretta, 488 U.S. at 393-94. All proposed guidelines are
thus subject to review and potential rejection by Congress,
and all enacted guidelines have theoretically survived that
potential rejection. Heeding “silence” would thus dictate that
all enacted guidelines inherently satisfied Congressional
intent, and would eliminate our vital role—described in
LaBonte and other cases—of squaring the enacted guideline
with the original statutory language. See 520 U.S. at 757.
Indeed, an Eighth Circuit panel has already taken this
dramatic step, concluding (erroneously, we believe) that
“[g]iven Congress’s supervisory role, the Sentencing
Commission’s formulation of the Guidelines is not subject to
judicial review unless the Commission oversteps
constitutional bounds.” United States v. Vincent, 167 F.3d
428, 431 (8th Cir. 1999). To the contrary, we believe
appellate courts must continue to “hold[] the Commission
accountable as an agency of limited powers.” Daniel J. Freed,
Federal Sentencing in the Wake of the Guidelines:
Unacceptable Limits on the Discretion of Sentencers, 101
Yale L.J. 1681, 1748 (1992).
We conclude that U.S.S.G. § 3B1.4 is in conflict with a
clear Congressional directive. In addition to the reasons
articulated by Judge Clay in II.B.2, we believe that Retic’s
sentence must be vacated and the case remanded for
imposition of a new sentence that is in accordance with the
directive’s age limitation.

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22 United States v. Butler, et al. Nos. 98-5552/5554
1Indeed, Congress asked the Commission to take into account the
“possible relevance of the proximity in age between the offender and the
minor(s) involved in the offense.” Pub. L. No. 103-322, § 140008, 108
Stat. 2033 (1994).
behavior,1 taking the adult-defendant’s and the accomplice-
minor’s relative ages into consideration is hardly a novel
concept. Cf. M ODEL P ENAL C ODE § 213.3(1)(a) (1962); C AL.
P ENAL C ODE 261.5(d) (1999) (“Any person 21 years of age or
older who engages in an act of unlawful sexual intercourse
with a minor under 16 years of age is guilty of either a
misdemeanor or a felony . . .”). This is precisely the bright-
line role which the age limit played in the directive at issue.
We therefore find that the limit was a core aspect of that
directive, and its wholesale elimination comprised much more
than a “slightly broader” application.
Finally, we respectfully disagree with our distinguished
colleague’s utilization of a “Congressional silence” theory to
conclude that Congress indeed approved of the Commission’s
amendment. He points to the six-month review period in
which Congress can accept or reject Commission guidelines,
and to the fact that “Congress ultimately failed to express
disagreement with expansion of the enhancement to” include
defendants under twenty one, to conclude that the amendment
was “an appropriate reflection of [Congressional] policy.”
Ante at __. See also United States v. Munoz-Cerna, 47 F.3d
207, 212 (7th Cir. 1995) (reading Congressional intent by
noting that “Congress had the opportunity to accept, reject, or
modify the guideline provision” yet “decided to allow the
Commission’s handiwork to take effect”). For several
reasons, we are not persuaded by this analysis.
As the Supreme Court stated in another Sentencing
Guideline case, “[n]ot every silence is pregnant.” Burns v.
United States, 501 U.S. 129, 136 (1991) (citation omitted).
The Court in Burns counseled that silence should not be
“credited when it is contrary to all other textual and
contextual evidence of congressional intent.” Id. Although
there is admittedly little evidence of that legislative intent
Nos. 98-5552/5554 United States v. Butler, et al. 3
A. BUTLER
On May 29, 1996, Butler and Julian Shelton robbed the
Volunteer Bank in Henning, Tennessee. During the robbery,
Butler wore a wig covered with a hat and Shelton wore safety
glasses and a hat, while Shelton was armed with a hand gun.
Together they stole a total of $12,269 from the bank. When
the federal grand jury handed down its twelve-count
indictment, it charged Butler in Count 5 with aiding and
abetting armed bank robbery in violation of 18 U.S.C. § 2113
and 18 U.S.C. § 2 in connection with his participation in this
robbery at Volunteer Bank. The indictment also charged
Butler in Counts 1 through 4, Counts 6 through 8, and Counts
11 and 12 with numerous other bank robberies and the use of
firearms during those offenses. On March 5, 1998, Butler
pleaded guilty to Count 5 of the indictment pursuant to a plea
agreement in which the government dismissed the remaining
charges against him.
At sentencing on April 3, 1998, the district court
determined that Butler had three convictions that qualified
him for career offender status under § 4B1.1 of the
Sentencing Guidelines. Specifically, the district court took
note of a 1990 conviction for conspiracy to sell cocaine, a
1994 conviction for delivery of under a half-gram of cocaine,
and a 1994 conviction for aggravated burglary. Additionally,
the district court denied Butler’s request for a downward
departure. The district court enhanced Butler’s criminal
history category accordingly, and sentenced Butler to 235
months of imprisonment, 3 years of supervised release, and
payment of restitution in the amount of $6,134.50, or one-half
the loss to the bank. Butler filed a timely notice of appeal to
this Court on April 14, 1998.
B. RETIC
On July 19, 1996, at the age of twenty, Retic robbed the
Munford Union Bank in Atoka, Tennessee along with Curtis
Harden, who was seventeen years of age at the time. Butler
was waiting nearby in a getaway vehicle. During the robbery,
which took place in the middle of the afternoon, Retic put a

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4 United States v. Butler, et al. Nos. 98-5552/5554
handgun to the head of a customer service representative,
instructed her not to push the alarm button, and told her that
if she moved, he would “cap” her. Harden repeatedly asked
Retic not to shoot the representative, and Retic complied.
Harden jumped the teller counter and removed money.
During the robbery, Retic saw a bank teller motion to her
husband and children, who were about to enter the bank to
pick her up, not to enter. Retic ordered the husband and
children into the bank. As Retic and Harden were leaving the
bank, they encountered another customer. Retic grabbed him,
pointed the gun at him and ordered him into the bank.
Ultimately, Retic and Harden left the bank with $16,330.
Later that evening, local police picked up Harden walking
along the highway. Harden later made an admission
identifying Butler as the individual who planned the robbery
and Retic as the individual who accompanied him into the
bank.
In connection with this incident, the indictment charged
Retic in Count 11 with armed bank robbery in violation of 18
U.S.C. § 2113 and 18 U.S.C. § 2, and in Count 12 with using
and carrying a firearm during and in relation to that bank
robbery in violation of 18 U.S.C. § 924(c). On July 16, 1997,
Retic pleaded guilty to Count 11, and on November 14, 1997,
he pleaded guilty to Count 12. At a sentencing hearing held
on April 3, 1998, Retic received a reduction in his sentence
pursuant to § 5K1.1 of the Sentencing Guidelines for
acceptance of responsibility. However, the district court
enhanced Retic’s offense level by two levels pursuant to
§ 3B1.4 of the Guidelines on the grounds that he had
encouraged a minor, Harden, to participate in the crime. The
district court ultimately sentenced Retic to sixty months of
imprisonment for Count 11 and sixty months of imprisonment
for Count 12, to be served consecutively. Retic filed a timely
notice of appeal to this Court on April 15, 1998.
II.
Before this Court, both Butler and Retic challenge only
their sentences, and not their underlying convictions. We
Nos. 98-5552/5554 United States v. Butler, et al. 21
Commission to “promulgate guidelines or amend existing
guidelines to provide that a defendant 21 years of age or older
who has been convicted of an offense shall receive an
appropriate sentence enhancement if the defendant involved
a minor in the commission of the offense.” Pub. L. No. 103-
322, § 140008, 108 Stat. 2033 (1994) (emphasis added).
However, in issuing § 3B1.4, the Commission simply
removed the age restriction. See U.S.S.G. § 3B1.4. Looking
at the face of both the directive and the guideline, we are not
convinced that the Commission’s interpretation of the age
restriction is “sufficiently reasonable.” To the contrary, the
guideline’s “interpretation” was a direct overruling of an
explicit Congressional declaration because it eliminated the
age limit, lock, stock and barrel.
The Government’s feeble response to this facial conflict is
that the Commission’s interpretation simply “implemented
Congress’s directive in a slightly broader fashion.” Gov’t Br.
at 9. Its sole evidence is the Commission’s own statement
that it was implementing the directive in “slightly broader
form.” U.S. Sentencing Commission Guideline Manual,
Appendix C, Amendment 527 (1997). This argument is
unpersuasive for two reasons. First, reflexively relying on the
commission’s characterization of its own amendment would
abandon our judicial role in “determining whether [the]
[a]mendment accurately reflects Congress’ intent.” LaBonte,
520 U.S. at 757. More importantly, both the Commission’s
characterization and the Government’s contention are
specious. Eliminating the minimum age requirement is far
more dramatic than introducing a “slightly broader form” of
the original directive. As this case demonstrates, without the
age limit that Congress originally authorized, the guideline
introduces a whole host of situations where defendants under
age twenty one can receive enhancements for engaging in
criminal activities with youths of similar age, or perhaps even
older than the defendants themselves. To resolve situations
such as this, which do not present the underlying concern that
the existence of an age differential allows an older, adult party
to influence a minor to engage in wrongful or dangerous

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20 United States v. Butler, et al. Nos. 98-5552/5554
is consistent with the rationale for why we generally do not
entertain issues not raised below—that it is “essential . . . that
parties . . . have the opportunity to offer all the evidence they
believe relevant to the issues.” Singleton v. Wulff, 428 U.S.
106, 120 (1976) (internal quotations and citation omitted).
When a new argument presents a question of pure law, neither
party has been denied the opportunity to offer relevant
evidence in making its case. To the contrary, as has occurred
in the case sub judice, both sides have had a full “opportunity
to present whatever legal arguments [they] may have” on this
particular issue. Id.
Not only is Retic’s argument properly before this Court, it
is persuasive. Although Congress has delegated “‘significant
discretion in formulating guidelines’” to the Commission, the
Commission still “must bow to the specific directives of
Congress.” United States v. LaBonte, 520 U.S. 751, 757
(1997) (quoting Mistretta v. United States, 488 U.S. 361, 377
(1989)). In ascertaining whether the Commission has
properly interpreted a directive, courts therefore “defer to [the
Commission’s] interpretation as long as it is ‘sufficiently
reasonable’ in light of the Congressional directive.” United
States v. Williams, 53 F.3d 769, 772 (6th Cir. 1995) (quoting
United States v. Kennedy, 32 F.3d 876, 889 (4th Cir. 1994));
see also United States v. Nottingham, 898 F.2d 390, 393 (3d
Cir. 1990) (“To the extent that the enabling legislation
contains specific direction, the guidelines must comport with
that direction.”) When the Commission’s interpretation, as
embodied in a guideline, does not square with clear
Congressional intent, courts will not apply that guideline. See
United States v. Gaines, 122 F.3d 324, 330 (6th Cir. 1997)
(“When Congress and the Sentencing Commission disagree
on matters of sentencing policy, Congress trumps.”); United
States v. Branham, 97 F.3d 835 (6th Cir. 1996) (holding that
the Commission contravened a Congressional directive).
We can not conceive of a clearer example than that
presented here where the Commission has so flatly ignored a
clear Congressional directive. The Violent Crime Control and
Law Enforcement Act of 1994 directed the Sentencing
Nos. 98-5552/5554 United States v. Butler, et al. 5
review the district court’s legal conclusions regarding the
Sentencing Guidelines de novo. See United States v. Garner,
940 F.2d 172, 174 (6th Cir. 1991). Moreover, we review a
district court’s factual findings in applying the Sentencing
Guidelines for clear error. See United States v. Latouf, 132
F.3d 320, 331 (6th Cir. 1997).
A.
Butler argues that the district court erred by sentencing him
as a career offender pursuant to the Sentencing Guidelines.
The Guidelines provide that a defendant is a career offender
if (1) he was at least eighteen when he committed the offense
of conviction; (2) the offense of conviction is a felony that is
a crime of violence or a controlled substance offense; and (3)
the defendant has at least two prior felony convictions of
crimes of violence or controlled substance offenses. See
USSG § 4B1.1. The Guidelines further provide that a
“controlled substance offense” includes any felony offense,
state or federal, that involves the distribution of a controlled
substance. See USSG § 4B1.2(b). Butler argues that of the
three convictions the district court cited in support of its
§ 4B1.1 enhancement, the two “controlled substance
offenses” were actually simple possession offenses and the
third, a conviction for aggravated burglary, was not a crime of
violence. Therefore, Butler argues, his prior convictions did
not qualify him as a career offender. Butler’s arguments are
in vain.
In determining whether a particular offense constitutes a
“controlled substance offense” or a “crime of violence” under
the Guidelines, this Court employs a categorical approach
“limited to an examination of the fact of conviction and the
statutory definition of the predicate offense.” United States
v. Arnold, 58 F.3d 1117, 1121 (6th Cir. 1995). Under this
approach, “‘it is not only impermissible, but pointless, for the
court to look through to the defendant’s actual criminal
conduct. . . .’” Id. (quoting United States v. John, 936 F.2d
764, 767 (3d Cir. 1991)). Indeed, the categorical approach
eliminates “‘the practical difficulties and potential unfairness

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6 United States v. Butler, et al. Nos. 98-5552/5554
of a factual approach’ to each prior conviction.” See United
States v. Kaplansky, 42 F.3d 320, 322 (6th Cir. 1994)
(quoting Taylor v. United States, 495 U.S. 575, 600-02
(1990)).
Significantly, Butler does not contest the fact of his
conviction for the three cited offenses, and does not contest
that the statutes under which he was convicted are statutes
that criminalize “controlled substance offenses” and “crimes
of violence.” Rather, he argues that this Court should eschew
the categorical approach described above by looking at the
substantive facts behind each of those offenses. Because it is
improper for a court to go beyond the fact of conviction and
the definitions of the statutes under which Butler was
convicted to determine whether he qualified as a career
offender, the district court did not err in enhancing Butler’s
sentence under § 4B1.1 of the Guidelines.
Finally, although Butler argues that the district court should
have departed downwards in sentencing him, this claim is
unreviewable. The Sentencing Reform Act of 1984 (“Act”)
provides for limited appellate review of sentences for federal
offenses. See Williams v. United States, 503 U.S. 193, 199
(1992). Under the Act, a defendant may only appeal his
sentence if it (1) was imposed in violation of law; (2) reflects
an incorrect application of the Sentencing Guidelines; (3) is
greater than the sentence specified in the applicable
Guidelines range; or (4) was imposed for an offense for which
there is no sentencing guideline and is plainly unreasonable.
See 18 U.S.C. § 3742(a) (1998). Generally, under § 3742, a
defendant may appeal if the district court departs upward
from the Guideline range, and the government may appeal if
the district court departs downwards. See Williams, 503 U.S.
at 199. We have consistently held that the decision by a
district court not to depart downwards from the Guidelines is
not reviewable on appeal unless the record reflects that the
district court was not aware of or did not understand its
discretion to make such a departure. See United States v.
Landers, 39 F.3d 643, 649 (6th Cir. 1994).
Nos. 98-5552/5554 United States v. Butler, et al. 19
______________________
CONCURRENCE
______________________
NATHANIEL R. JONES, Circuit Judge, concurring, with
COLE, J., joining.
We concur in the judgment announced by Judge Clay, and
with most of Judge Clay’s well-reasoned opinion.
Nevertheless, we believe defendant Retic, in addition to
prevailing for the reasons stated in II.B.2, correctly asserts
that the United States Sentencing Commission failed to
comport with a clear Congressional directive when it
eliminated the requirement that the defendant be at least
twenty-one years old to be subject to enhancement under
U.S.S.G. §3B1.4. We therefore respectfully disagree with
regard to the analysis in II.B.1.
As a preliminary matter, we are untroubled by the fact that
Retic did not make this particular legal argument below.
Before the district court, Retic clearly challenged the
application of U.S.S.G. § 3B1.4 to enhance his sentence, J.A.
at 180-81; he therefore complied with this Court’s
requirement that a defendant object at the district court in
order to avoid waiving that objection on appeal. See United
States v. Jarman, 144 F.3d 912, 915 (6th Cir. 1998). The
additional argument he now makes in support of that
objection is one of pure law. “The question is simply the
proper interpretation and application of the [relevant] statute,”
requiring “no new or amplified factual determination.”
Frederick Steel Co. v. Commissioner of Internal Revenue, 375
F.2d 351, 355 (6th Cir. 1967) (internal quotations and citation
omitted). As such, the fact that the argument was not raised
below is immaterial. See id.; see also Hutton v. United States,
501 F.2d 1055, 1062-63 & 1063 n.15 (6th Cir. 1974)
(recognizing that Frederick Steel Co. articulated an exception
to the general rule that an appellate court cannot entertain an
argument based on a theory not raised below). This exception

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18 United States v. Butler, et al. Nos. 98-5552/5554
sentence of Retic and REMAND his case to the district court
for resentencing.
Nos. 98-5552/5554 United States v. Butler, et al. 7
Although Butler contends that the district court should have
granted him a downward departure on the grounds that he had
a diminished capacity due to alcohol and drug abuse and
because he had a traumatic childhood, he does not argue –
likely because he cannot – that the district court did not
understand its ability to make such a departure. Indeed, the
district court stated:
There is really not anything factually about this case that
would warrant a downward departure. The defendant’s
family circumstances and his background are not
unusual. They are relatively typical of people engaged in
criminal conduct. There is no indication that his drug or
alcohol use in any way constituted diminished capacity
as contended in the objections. There is just nothing in
this case that would amount to either an appropriate legal
basis for a downward departure or that would amount to
an appropriate legal basis for a downward departure or
that would factually amount to an appropriate reason to
go below the guideline range.
(J.A. at 113.) It seems clear that the district court recognized
its power to depart downwards but merely exercised its
discretion not to do so. Consequently, the district court’s
failure to grant Butler a downward departure is not
reviewable. Because Butler’s arguments are meritless, his
sentence is affirmed.
B.
The arguments Retic makes before this Court, both of
which attack the decision of the district court to enhance his
offense level at sentencing pursuant to § 3B1.4 of the
Guidelines are viewed differently. Section 3B1.4 provides
that “[i]f the defendant used or attempted to use a person less
than eighteen years of age to commit the offense or assist in
avoiding detection of, or apprehension for, the offense,” a
district court may increase the defendant’s offense level by
two levels. USSG § 3B1.4 (1998). In his challenge to the
§ 3B1.4 enhancement, Retic argues, for the first time before
this Court, that to the extent the enhancement applies to

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8 United States v. Butler, et al. Nos. 98-5552/5554
defendants of any age, the provision goes beyond the scope of
the mandate Congress granted the Sentencing Commission
(“Commission”). He further argues that even if § 3B1.4 is
valid, the district court should not have applied it in his case
because he did not use or attempt to use Harden during the
bank robbery. Retic does not succeed with his argument that
§ 3B1.4 is generally invalid; however, his argument that the
provision does not apply to his case is meritorious.
1.
Congress enacted the precursor to § 3B1.4 when it passed
the Violent Crime Control and Law Enforcement Act of 1994,
Pub. L. No. 103-322, § 140008, 108 Stat. 2033 (1994). This
enabling provision directed the Commission to “promulgate
guidelines or amend existing guidelines to provide that a
defendant 21 years of age or older who has been convicted of
an offense shall receive an appropriate sentence enhancement
if the defendant involved a minor in the commission of the
offense.” Id. Although the sentence enhancement created by
Congress included language restricting its application to
defendants 21 years of age or older, in adopting § 3B1.4, the
Commission dropped the age restriction, rendering the
sentence enhancement applicable to defendants of all ages.
Retic, who was 20 years old when he committed this crime,
therefore argues that § 3B1.4 goes beyond the limited
authorization Congress granted, and that as a defendant under
the age of 21 at the time of the offense, he should not be
subject to a sentence enhancement for involving a minor in
his crime. Although this argument carries some facial appeal,
it lacks merit.
In 1984, Congress created the Commission, charging it with
“establish[ing] sentencing policies and practices for the
Federal criminal justice system.” 28 U.S.C. § 991 (1985).
Since this delegation of power was constitutional, sentencing
guidelines promulgated by the Commission now bind the
federal courts. See Mistretta v. United States, 488 U.S. 361,
391 (1989). Although Congress legitimately granted the
Commission “significant discretion in formulating
Nos. 98-5552/5554 United States v. Butler, et al. 17
3The facts, at best, show only that Retic and Harden possessed equal
authority in their commission of the crime. As Retic points out, it was
Harden who directed Retic not to shoot the customer service
representative at the bank. Moreover, when asked about the crime,
Harden identified Butler, and not Retic, as the individual who planned the
robbery. Although it therefore seems more likely that Butler “directed”
a minor to commit a crime, the district court did not have the opportunity
to make such a finding because the government dropped its charge against
Butler in connection with this particular robbery.
Consequently, the district court misapplied the provision.
The district court found that Retic and Harden were partners
in crime who worked together to rob the Munford Union
Bank, but failed to find that Retic acted affirmatively to
involve Harden in the armed bank robbery beyond merely
acting as his partner. The district court did not find that Retic
directed, commanded, intimidated, counseled, trained,
procured, recruited, or solicited Harden’s participation in the
bank robbery.3 Thus, the district court concluded, on the
basis of evidence showing that Harden participated in the
robbery with Retic and on the inference that they
“encouraged” one another, that Retic “used” Harden.
Because the term “use” requires a showing of more than a
mere criminal partnership, the district court erred in finding
that Retic used a minor in committing his crime and in
enhancing Retic’s sentence by two levels pursuant to § 3B1.4.
Accordingly, Retic’s case is remanded to the district court for
resentencing.
III.
As previously explained, the district court did not err in
sentencing Butler as a career offender pursuant to § 4B1.1 of
the Guidelines, and was aware of its authority to depart
downwards in sentencing Butler, but simply exercised its
discretion not to do so. However, because a defendant must
do more than merely act as a partner with a minor in crime, in
order to “use” a minor in crime under § 3B1.4, this
enhancement does not apply to Retic and his sentence was
erroneously imposed. Accordingly, we AFFIRM the
judgment of the district court as to Butler, but VACATE the

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16 United States v. Butler, et al. Nos. 98-5552/5554
the offender and the minor(s) involved in the offense.”
§ 140008(b) (emphasis added). Congress’ inclusion of these
considerations indicates that to deserve § 3B1.4 enhancement,
one must do more than simply participate in crime with a
minor. If the contrary were true, the relative ages of the
offender and the minor would be irrelevant; by deeming age
relevant, Congress likely imagined an offender who actually
exercised some control or took some affirmative role in
involving the minor.
Finally, it is instructive to consider the analogous statutory
provision criminalizing the use of juveniles in drug
trafficking, which makes it unlawful for an adult to
“knowingly and intentionally employ, hire, use, persuade,
induce, entice, or coerce, a person under eighteen years of
age” to violate federal drug laws. 21 U.S.C. § 861 (1998).
Indeed, in giving the Commission the authority to create
§ 3B1.4, Congress made indirect reference to this statute
when it observed that the Guidelines set forth a two-level
sentence enhancement for crimes involving a minor in a drug
trafficking offense. See Violent Crime Control and Law
Enforcement Act of 1994, § 140008(b)(3); USSG § 2D1.1
(noting its application to § 861 convictions). Courts
interpreting § 861 have observed that where the evidence
shows a juvenile was involved in the defendant’s drug
operation, the government must produce additional evidence
showing that the defendant was responsible for some
affirmative or active “use” of the juvenile. See, e.g., United
States v. McDonald, 877 F.2d 91, 93 (D.C. Cir. 1989). In
analyzing the sufficiency of evidence supporting a § 861
conviction, we have looked for proof of the juvenile’s
subservience to the defendant in the drug operation in
response to the claim that the juvenile was an independent
drug dealer over whom the defendant exerted no influence.
See United States v. Segines, No. 95-3534, 1996 WL 287254,
at *8 (6th Cir. May 8, 1996) (unpublished). Thus, it appears
that in the criminal context, “using” a minor to carry out
criminal activity entails more than being the equal partner of
that minor in committing a crime.
Nos. 98-5552/5554 United States v. Butler, et al. 9
guidelines,” id. at 377, the discretion of the Commission
“must bow to the specific directives of Congress.” United
States v. LaBonte, 520 U.S. 751, 757 (1997). When the
Commission seeks to amend a guideline, it must submit a
proposed amendment to Congress, along with reasons
explaining the amendment, and must give Congress 180 days,
or roughly six months, to modify or disapprove the
amendment. See 28 U.S.C. § 994(p) (1994). Under this
“report and wait” provision, if Congress fails to act, the
proposed amendment will take effect. See id. Taking this
process into account, this Court has recognized that “[w]hen
Congress and the Commission disagree on matters of
sentencing policy, Congress trumps. . . . Where the
Guidelines and a statute conflict, the statute (an act of
Congress) controls.” United States v. Gaines, 122 F.3d 324,
330 (6th Cir. 1997).
To determine whether a guideline adopted by the
Commission is at odds with the directives of Congress and
must therefore give way, the language of the statute is looked
at first. See LaBonte, 520 U.S. at 757. In the statute enabling
§ 3B1.4, Congress adopted the following language:
SEC. 140008. SOLICITATION OF MINOR TO
COMMIT CRIME
(a) Directive to Sentencing Commission.
(1) The United States Sentencing Commission shall
promulgate guidelines or amend existing guidelines to
provide that a defendant 21 years of age or older who has
been convicted of an offense shall receive an appropriate
sentence enhancement if the defendant involved a minor
in the commission of the offense.
(2) The Commission shall provide that the guideline
enhancement promulgated pursuant to paragraph (1) shall
apply for any offense in relation to which the defendant
has solicited, procured, recruited, counseled, encouraged,
trained, directed, commanded, intimidated, or otherwise
used or attempted to use any person less than 18 years of

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10 United States v. Butler, et al. Nos. 98-5552/5554
1For example, Congress disapproved of a proposed amendment that
would have eliminated the 100:1 sentencing ratio that treats one who deals
in a given quantity of crack cocaine the same as it treats one who deals in
100 times as much powder cocaine. See Gaines, 122 F.3d at 327.
age with the intent that the minor would commit a
Federal offense.
Violent Crime Control and Law Enforcement Act of 1994,
Pub. L. No. 103-322, § 140008, 108 Stat. 2033 (1994). At
first blush, it appears, as Retic alleges, that Congress
intended—and provided in unambiguous terms—for sentence
enhancement for solicitation of a minor to commit crime only
for defendants age 21 and older. A clearer expression of
congressional intent is unimaginable.
However, Congress’ expression of intent as to § 3B1.4 did
not begin and end with its enactment of § 140008. When the
Commission drafted § 3B1.4 to reflect the congressional
directive set forth in § 140008, it did so by proposing
Amendment 527 to the Sentencing Guidelines. See USSG
App. C. (1998). In accordance with statutory procedures
regarding the proposal of amendments to the Guidelines, the
Commission then submitted Amendment 527, along with
many other proposed amendments, to Congress on May 1,
1995, and specified an effective date of November 1, 1995.
See Amendments to the Sentencing Guidelines for the United
States Courts, 60 Fed. Reg. 25074, 25086 (May 10, 1995).
Significantly, in submitting Amendment 527, the Commission
stated as the reason for its proposal that the amendment
“implements the directive in Section 140008 of the Violent
Crime Control and Law Enforcement Act of 1994 (pertaining
to the use of a minor in the commission of an offense) in a
slightly broader form.” 60 Fed. Reg. at 25086. On October
30, 1995, Congress considered and rejected some of the
amendments proposed on May 1, 1995, see Pub. L. No. 104-
38, 109 Stat. 334 (1995), but did not act to modify or
disapprove Amendment 527.1 Thus, Amendment 527,
codified as § 3B1.4, became effective on November 1, 1995.
See USSG App. C.
Nos. 98-5552/5554 United States v. Butler, et al. 15
adjustments entitled “Role in the Offense.” USSG Ch. 3,
Pt.B. The introductory commentary to this part of the
Guidelines states that it sets forth “adjustments to the offense
level based upon the role the defendant played in committing
the offense.” USSG Ch. 3, Pt.B, intro. comment. Under the
generous construction adopted by the district court, any
defendant who partnered with a minor in a crime would be
subject to a two-level enhancement, creating, in effect, a
“strict liability enhancement.” However, this view conflicts
with the notion that the enhancement is reserved for
defendants who play a particular role in the offense. Indeed,
if numerous adult defendants participated in a crime along
with a minor, every single one of the adult defendants would
be subject to the two-level enhancement, regardless of the
roles they played in involving the minor in the crime. Such a
result would ostensibly render the characterization of § 3B1.4
as a “role in the offense” adjustment a misnomer.
Moreover, sentencing guidelines are to be interpreted and
applied so that they are consistent with the statute that
authorized them. See Stinson v. United States, 508 U.S. 36,
45 (1993). Congress labeled the provision enabling § 3B1.4
“Solicitation of a Minor to Commit Crime.” Violent Crime
Control and Law Enforcement Act of 1994, § 140008. The
dictionary defines “solicitation” as “[a]sking; enticing; urgent
request. The inchoate offense of asking someone to engage
in illegal conduct.” Black’s Law Dictionary 1392 (6th ed.
1990). As one could not passively solicit the participation of
a minor in crime, this suggests that the enhancement should
apply when a defendant takes affirmative acts to involve a
minor. Moreover, while setting forth the suggested
definitions for the term “use” adopted in Application Note 1,
Section 140008 also identified a number of “relevant
considerations” that indicate Congress did not intend to create
“strict liability enhancement” for anyone who merely
participates in crime with a minor. Violent Crime Control
and Law Enforcement Act of 1994, § 140008. For example,
Congress instructed the Commission to consider “the severity
of the crime that the defendant intended the minor to commit”
and “the possible relevance of the proximity in age between

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14 United States v. Butler, et al. Nos. 98-5552/5554
within the guideline range, although this is certainly not
the clear -- it’s a fairly close issue based on some of the
other language of the application note.
(J.A. at 70-71.) Our review of § 3B1.4 leads us to disagree
with the district court’s analysis.
It was proper for the district court to take a plain language
approach in its interpretation of § 3B1.4, because courts must
treat the sentencing guidelines “as if they were a statute” and
follow “the clear, unambiguous language if there is no
manifestation of a contrary intent.” United States v. Lewis,
900 F.2d 877, 881 (6th Cir. 1990); see also Lopez-Lopez,
1998 WL 788875, at *1 (holding that courts may use the
“common meaning of ‘use’” in applying § 3B1.4). However,
the district court relied heavily on a definition for the term
“encourage” and not for the term “use,” and even then chose
not to rely upon the definition of “encourage” set forth
specifically for the criminal legal context, namely “to
instigate.” Black’s Law Dictionary 527 (6th ed. 1990). The
dictionary defines “use” as “[t]o make use of; to convert to
one’s service; to employ; to avail oneself of; to utilize; to
carry out a purpose or action by means of; to put into action
or service, especially to attain an end.” Black’s Law
Dictionary 1541 (6th ed. 1990). A consideration of the
definitions of “use” supports the notion that § 3B1.4 would
require more affirmative action on the part of a defendant.
See Bailey v. United States, 516 U.S. 137, 145 (1995) (finding
that “[t]hese various definitions of ‘use’ imply action and
implementation”); see also LeFave, 1998 WL 10362, at *1
(observing that although mere awareness of a minor’s
involvement would not warrant § 3B1.4 enhancement, active
payment by a defendant to a minor for illegal work would
merit such enhancement).
In an effort to determine the true meaning of § 3B1.4, the
language and design of the statute as a whole as well as the
specific provision at issue must be considered. See KMart
Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). Section
3B1.4 falls under a category of sentencing guideline
Nos. 98-5552/5554 United States v. Butler, et al. 11
Against this historical backdrop, Retic essentially invites
the Court to hold that in spite of its inaction when faced with
Amendment 527, Congress intended, as it originally stated in
§ 140008, that sentence enhancements for the involvement of
minors in crime should apply only to defendants who are 21
years of age and older. Given the context, Retic’s invitation
cannot be accepted. The provision that allowed Congress six
months to review and displace Amendment 527 resembles the
“report and wait” provision of the enabling acts for the
Federal Rules of Civil Procedure and the Federal Rules of
Evidence. See United States v. Scampini, 911 F.2d 350, 353
(9th Cir. 1990) (quoting United States v. Smith, 713 F. Supp.
1315, 1318-19 (D. Minn. 1989)). The Supreme Court has
long affirmed the validity of “report and wait” procedures and
the significance of congressional inaction under such
procedures, observing in a case challenging the Federal Rules
of Civil Procedure that:
The value of the reservation of the power to examine
proposed rules, laws and regulations before they become
effective is well understood by Congress. It is
frequently, as here, employed to make sure that the action
under the delegation squares with the Congressional
purpose. Evidently the Congress felt the rule was within
the ambit of the statute as no effort was made to
eliminate it from the proposed body of rules, although
. . . [t]he Preliminary Draft of the rules called attention to
the contrary practice . . ., as did the Report of the
Advisory Committee and the Notes prepared by the
Committee to accompany the final version of the rules.
That no adverse action was taken by Congress indicates,
at least, that no transgression of legislative policy was
found. We conclude that the rules under attack are
within the authority granted.
Sibbach v. Wilson & Co., Inc., 312 U.S. 1, 15 (1941). The
Court has continued to find valid the enactment of rules
through “report and wait” provisions. See, e.g., Alaska
Airlines, Inc. v. Brock, 480 U.S. 678, 690 & n.12 (1987); INS
v. Chadha, 462 U.S. 919, 935 & n.9 (1983).

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12 United States v. Butler, et al. Nos. 98-5552/5554
These cases instruct that Congress reserved for itself the
opportunity to review proposed amendments to guidelines
through a “report and wait” provision, and that by failing to
act to modify or disapprove Amendment 527 even when
notified that it was different from the directive enacted in
§ 140008, Congress, in effect, approved of Amendment 527
as an appropriate reflection of its policy on the sentencing of
those who involved minors in their crimes. Cf. United States
v. Munoz-Realpe, 21 F.3d 375, 377 (11th Cir. 1994)
(concluding that by allowing an amendment to the Guidelines
to take effect, Congress gives its “imprimatur” to the new
guideline). Thus, although the initial intent of Congress
would have been at odds with § 3B1.4, the history behind the
passage of § 3B1.4 compels a finding that the intent of
Congress changed. While at first Congress expressly directed
the Commission to exclude defendants under the age of 21
from this sentence enhancement, through its inaction under
the “report and wait” provision of § 994(p), Congress
ultimately failed to express disagreement with expansion of
the enhancement to include defendants under the age of 21.
This is not the situation in which the intent of Congress and
the position adopted by the Sentencing Guidelines are at odds;
therefore, the enactment of § 3B1.4 was valid, and the
Commission did not overstep the bounds of its authority.
2.
Since Retic cannot prevail in his general attack on the
validity of § 3B1.4, we turn now to his claim that it was
improper for the district court to apply § 3B1.4 given the facts
of his case. Specifically, he cites the absence of proof that he
used or attempted to use Harden during the bank robbery. In
determining whether a defendant “used or attempted to use”
a minor so as to warrant a § 3B1.4 enhancement, a sentencing
court should bear in mind that “‘[u]sed or attempted to use’
includes directing, commanding, encouraging, intimidating,
counseling, training, procuring, recruiting, or soliciting.”
USSG § 3B1.4, comment. (n.1). This Court has yet to
construe the meaning of the term “use” or the phrase
“attempted to use” in this context. See United States v.
Nos. 98-5552/5554 United States v. Butler, et al. 13
2The version of § 3B1.4 applied by the district court became effective
on November 1, 1995. See USSG. App. C.
Harris, 165 F.3d 1062, 1067 (6th Cir. 1999) (finding § 3B1.4
enhancement proper not because defendant “used” a minor,
but because the minor “assisted” defendant in avoiding
detection of the offense). Since the provision is fairly new,2
very few courts have interpreted the “use” or “attempted to
use” aspect of § 3B1.4. See, e.g., United States v. Benjamin,
116 F.3d 1204, 1206 (7th Cir. 1997); United States v. Lopez-
Lopez, No. 98-50030, 1998 WL 788875, at *1 (9th Cir. Nov.
5, 1998) (unpublished); United States v. LeFave, No. 96-
50618, 1998 WL 10362, at *1 (9th Cir. Jan. 13, 1998)
(unpublished).
Here, the district court followed a path somewhat similar to
that taken by the court in Benjamin, where the United States
Court of Appeals for the Seventh Circuit affirmed an
enhancement pursuant to § 3B1.4 where the defendant and the
minor were “partner[s] in crime” and co-conspirators. 116
F.3d at 1206. While conceding that the list of words set forth
in Application Note 1 of the Commentary to the provision
“would connote some pressure or affirmative action,” the
district court placed emphasis on the definition of the term
“encouraged” as set forth in Black’s Law Dictionary. That
publication defines “encourage” as “[i]n criminal law, to
instigate; to incite to action; to give courage to; to inspirit; to
embolden; to raise confidence; to make confident; to help; to
forward; to advise.” Black’s Law Dictionary 527 (6th ed.
1990). The district court then found that:
Mr. Retic and Mr. Harden worked together to commit the
crime. They helped one another, and they encouraged
one another simply by their own participation. The
presence and involvement of each was an emboldening
factor to the other, and so I would agree that there is not
any indication that Mr. Retic, as an adult, was pressuring
Mr. Harden as a minor . . . he did use a minor in the
sense that I have described, and I think that does fall

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