United States of America v. Joe Douglas Helton

*The Honorable Arthur J. Tarnow, United States District Judge for
the Eastern District of Michigan, sitting by designation.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0400P (6th Cir.)
File Name: 03a0400p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOE DOUGLAS HELTON,
Defendant-Appellant.
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No. 02-5536
Appeal from the United States District Court
for the Eastern District of Kentucky at Pikeville.
No. 99-00022—Joseph M. Hood, District Judge.
Argued: September 10, 2003
Decided and Filed: November 12, 2003
Before: GIBBONS and SUTTON, Circuit Judges;
TARNOW, District Judge.*
_________________
COUNSEL
ARGUED: Gerald D. DeRossett, PILLERSDORF,
DeROSSETT & LANE, Prestonsburg, Kentucky, for
2 United States v. Helton No. 02-5536
Appellant. Kenneth R. Taylor, ASSISTANT UNITED
STATES ATTORNEY, Lexington, Kentucky, for Appellee.
ON BRIEF: Gerald D. DeRossett, PILLERSDORF,
DeROSSETT & LANE, Prestonsburg, Kentucky, for
Appellant. Kenneth R. Taylor, Charles P. Wisdom, Jr.,
ASSISTANT UNITED STATES ATTORNEYS, Lexington,
Kentucky, for Appellee.
_________________
OPINION
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SUTTON, Circuit Judge. In this, his second appeal from
the same conviction, Joe Douglas Helton challenges the
consecutive sentences he received for: (1) possession of ten
grams of cocaine with intent to distribute in violation of
21 U.S.C. § 841(a)(1); (2) use of a firearm during and in
relation to a drug-trafficking offense in violation of 18 U.S.C.
§ 924(c); and (3) possession of a firearm in violation of
18 U.S.C. § 922(g)(1). For the reasons that follow, we
AFFIRM.
I. BACKGROUND
In 1999, from June 2 to June 3, Helton and three others
(Harold Dean McCarty (“McCarty”), Mildred Stanley Slusher
(“Stanley”) and Molly Minix Shepherd (“Minix”)) used
cocaine at Helton’s residence while Helton and McCarty
prepared half-gram packages of cocaine for sale. Realizing
that they needed to restock their supply of cocaine (in view of
the amount they had consumed), Helton and McCarty decided
to exchange Helton’s television for a half-gram of cocaine
and $400. Stanley drove McCarty to a prospective seller. On
the way, Stanley watched McCarty hide nineteen cocaine
packages behind a traffic sign.
After agreeing to terms with the cocaine seller and after
returning to Helton’s residence to load the television onto his

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No. 02-5536 United States v. Helton 3
truck, McCarty left to make the exchange. While he was
gone, Stanley retrieved five or six of the recently-hidden
packages for Helton, Minix and herself—all of whom were
suffering from cocaine withdrawal—to consume. When
McCarty learned that no cocaine remained at the hiding place,
he accused Stanley of stealing the packages. She denied any
knowledge of their whereabouts, but McCarty did not believe
her and proceeded to shoot her. The bullet passed through
Stanley’s shoulder and exited out her lower back, but did not
kill her.
At this point, Helton and McCarty drove Stanley to the
hiding place behind the traffic sign where McCarty threatened
her with the gun, again demanding that she tell them where
the cocaine was. She again disclaimed any knowledge about
the location of the cocaine, and McCarty fired at her head,
missing her.
Helton and McCarty then drove Stanley to a strip mine
where they tied cement blocks to her body and threw her into
a nearby pond. In a fortuitous application of Murphy’s Law,
the pond turned out to be waist deep. Stanley did not drown.
In one last effort to “put her under,” Helton took aim at
Stanley three times and tried to shoot her three times. Each
time, he missed the cement-laden Stanley. Apparently
stymied, Helton and McCarty dragged Stanley from the pond
and moved her to a nearby woods. In a conversation that
history regrettably does not fully record, Helton and McCarty
discussed what to do with Stanley next.
Happily for Stanley, they did not have a chance to follow
through on their next plan. Helton left the scene and sleep
overcame McCarty, allowing Stanley to escape to a nearby
residence where she was airlifted to the University of
Kentucky Medical Center. There, she underwent surgery and
eventually recovered.
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The United States District Court for the Eastern District of
Kentucky severed the trials of McCarty and Helton. In
Helton’s trial, a jury found him guilty on all three counts in
the indictment: (1) possession of ten grams of cocaine with
intent to distribute in violation of 21 U.S.C. § 841(a)(1)
(Count I); (2) use of a firearm during and in relation to a drug-
trafficking offense in violation of 18 U.S.C. § 924(c) (Count
II); and (3) possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1) (Count III).
In sentencing Helton, 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
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. With a three-point enhancement for Stanley’s “serious
bodily injury,” Helton’s base-offense level for Counts I and
III (grouped under U.S.S.G. § 3D1.2) became thirty-one. Past
criminal convictions placed Helton in a level II criminal
history category, giving him a sentencing range on Counts I
and III of 121–151 months. The district court sentenced him
to 131 months on both counts. The court also sentenced
Helton to a sixty-month consecutive sentence under 18 U.S.C.
§ 924(c)(1)(A)(ii) (use of a firearm during a drug-trafficking
offense). All sentences considered, Helton received a total
sentence of 191 months.
Helton appealed his convictions and sentences on a number
of issues, including inappropriate cross-referencing. He
claimed the district court should have used U.S.S.G.
§ 2X1.1(a) as its cross-referencing guideline and should have
applied U.S.S.G. § 2A2.2 for aggravated assault (for a base-
offense level of fifteen), because (1) he did not have the
requisite intent for murder, and (2) he acted under duress in
view of several threats by McCarty. The Government cross-
appealed, seeking a four-point (rather than three-point)

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No. 02-5536 United States v. Helton 5
enhancement of Helton’s base offense level, due to the extent
of Stanley’s injury.
We affirmed Helton’s convictions and agreed that the
district court appropriately applied the attempted-murder
cross reference. See United States v. Helton, 32 Fed. Appx.
707 (6th Cir. 2002) (“Helton I”). At the same time, we agreed
with the Government that Stanley had sustained a “permanent
or life-threatening bodily injury,” which warranted a four-
point rather than a three-point enhancement of Helton’s base
offense level. See id. at 716 (citing U.S.S.G.
§ 2A2.1(b)(1)(A)); U.S.S.G. § 1B1.1 cmt. n.1(h). In view of
this conclusion, we remanded the case for resentencing. See
Helton I, 32 Fed. Appx. at 709.
In the same week that we ruled on Helton’s original appeal,
we released United States v. Stubbs, 279 F.3d 402 (6th Cir.
2002). In Stubbs, we reversed a mandatory sixty-month
sentence—resulting from cross-referencing under U.S.S.G.
§ 2K2.1(c)(1)(A)—imposed on a defendant convicted
of violating 18 U.S.C. § 924(o). We concluded that this
increase in the minimum sentence of the defendant was “more
fundamental [than sentencing in excess of the statutory
maximum, prohibited by Apprendi v. New Jersey, 530 U.S.
466 (2000)] because Defendant was indicted for one offense
and sentenced under another simply by operation of a cross-
reference in the sentencing guidelines . . . .” Stubbs, 279 F.3d
at 409. Unlike “relevant conduct” guidelines calling for a
determinate increase in a sentencing base-offense level,
Stubbs reasoned, the cross-referencing provision “required the
district court to calculate [the defendant’s base-offense level]
as if his offense of conviction had been murder,” a charge not
in the indictment. Id. at 408 (emphasis in original). Relying
on several post-Apprendi decisions, we concluded that cross-
referencing under these circumstances violated the
defendant’s Fifth and Sixth Amendment rights.
Invoking Stubbs (and Apprendi), Helton claimed on remand
that he could be sentenced only for offenses for which he had
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been indicted and convicted by a jury, which would not
include attempted murder. The district court disagreed. It
instead sentenced Helton in accordance with the four-point
enhanced base-offense level for attempted murder and for a
“permanent or life-threatening bodily injury.” Helton thus
received 120 months on Count III, sixty months on Count II,
and an additional eighteen months on Count I, all to be served
consecutively, for a total sentence of 198 months. The court
entered judgment on April 16, 2002, and Helton filed this
appeal one week later.
II. DISCUSSION
The legal issues raised in this case do not contain the same
suspense as the facts. We review the district court’s legal
conclusions de novo and its fact-findings for clear error. See
United States v. Griffis, 282 F.3d 443, 446 (6th Cir. 2002).
A. The Scope of the Remand.
The Government initially challenges our authority to reach
Helton’s claim that Stubbs prohibits the attempted-murder
cross referencing. In its view, this Court’s limited remand in
Helton I did not authorize the district court to do anything but
apply the four-point enhancement prompted by the fact that
Stanley suffered a “permanent or life-threatening bodily
injury.” In one sense, the Government is correct. When we
issue a remand order that is limited by its terms to a discrete
issue, the district court obtains jurisdiction to address only
that issue. See United States v. Campbell, 168 F.3d 263, 265
(6th Cir. 1999). Where, however, “an appellate court simply
vacates a sentence and remands to the district court for
‘resentencing,’ that order is considered a general one that
allows the district court to resentence the defendant de novo.”
United States v. Moore, 131 F.3d 595, 598 (6th Cir. 1997);
see also United States v. Hebeka, 89 F.3d 279, 284–85 (6th
Cir. 1996). Unless otherwise specified, a remand order is
presumed to be general in nature. See Moore, 131 F.3d at
598.

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No. 02-5536 United States v. Helton 7
In this instance, Helton I remanded the case to the district
court “for resentencing consistent with this opinion.” Helton
I, 32 Fed. Appx. at 716. In view of this general language and
in view of the presumption in favor of a general remand, we
conclude that the district court had authority to review
Helton’s argument under Stubbs. So, accordingly, do we.
B. The Cross-Referencing Challenge.
Like the defendant in Stubbs, Helton claims that the district
court 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.
Like the defendant in Stubbs, he claims that the Guidelines
may not be applied to increase his mandatory minimum
sentence in this manner, unless a jury first finds beyond a
reasonable doubt that he engaged in the alleged conduct. And
like the defendant in Stubbs, he claims that any such
sentencing violates his Fifth and Sixth Amendment rights.
Stubbs, however, is no longer good law. Neither that
decision nor the precedents upon which it relied, see United
States v. Ramirez, 242 F.3d 348 (6th Cir. 2001) and United
States v. Flowal, 234 F.3d 932 (6th Cir. 2000), have survived
a recent Supreme Court decision delineating the scope of
Apprendi. In Harris v. United States, 536 U.S. 545 (2002),
decided after Stubbs, the Supreme Court held that the
constitutional mandates of Apprendi do not apply to the
Sentencing Guidelines when the defendant’s sentence remains
below the maximum sentence authorized by statute. In that
setting, the Court concluded, the Constitution permits a judge
to make factual findings that increase a defendant’s
mandatory minimum sentence under the preponderance-of-
the-evidence standard. Id. at 568–69. “Within the range
authorized by the jury’s verdict,” the Court reasoned, “the
political system may channel judicial discretion—and rely
upon judicial expertise—by requiring defendants to serve
minimum terms after judges make certain factual findings.”
Id. at 567. Under Harris, once the jury has determined guilt,
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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
makes clear that the district court does not run afoul of
Apprendi or the constitutional rights that it protects.
Recent precedent from this Court confirms this conclusion.
As we recently have said, “a fact that merely activates or
increases a statutorily mandated minimum sentence may, at
the legislature’s discretion, be submitted to a judge and
proved only by a preponderance of the evidence.” United
States v. Chapman, 305 F.3d 530, 536 (6th Cir. 2002). See
also United States v. Copeland, 321 F.3d 582, 603 (6th Cir.
2003) (holding that under Harris “a defendant cannot
demonstrate an Apprendi violation where he has been
sentenced to a term of years encompassed by [the statute
under which he is charged]”) (emphasis in original); United
States v. Lawrence, 308 F.3d 623, 635 (6th Cir. 2002) (noting
that while this Court had held in several opinions that
Apprendi applied to statutory minimums, Harris overruled
that conclusion). In the aftermath of Harris, we also have
specifically concluded that “Flowal, Ramirez . . . and all other
cases before this Circuit in which we have held that Apprendi
applies to mandatory minimum sentences, are overruled to the
extent they conflict with Harris . . . .” United States v.
Leachman, 309 F.3d 377, 383 (6th Cir. 2002). The decisions
upon which Stubbs relied did not survive Harris. It follows
that the same is true of Stubbs.
Applied here, Harris and our recent precedents establish
that the district court’s sentence fell well within constitutional
limits. In this instance, the district court on remand sentenced
Helton to consecutive sentences totaling 198 months. As no
single sentence exceeded the maximum permitted by statute

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No. 02-5536 United States v. Helton 9
under any of the three counts on which the jury convicted
him, Helton’s constitutional challenge cannot succeed.
III. CONCLUSION
For the foregoing reasons, we AFFIRM.

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