United States v. Steven Douglas Dare

425 F.3d 634 UNITED STATES of America, Plaintiff-Appellee, v. Steven Douglas DARE, Defendant-Appellant. No. 04-30202. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 9, 2005. Filed September 23, 2005. Michael Donahoe, Federal Defenders of Montana, Helena, MT, for the defendant-appellant. Paulette L. Stewart, United States Attorney's Office, Helena, MT, for the plaintiff-appellee. Appeal from the United States District Court for the District of Montana; Donald W. Molloy, Chief District Judge, Presiding. D.C. No. CR-03-00020-DWM. Before: O'SCANNLAIN, LEAVY, and BEA, Circuit Judges. LEAVY, Circuit Judge: 1 Stephen Douglas Dare appeals his statutory mandatory minimum ten-year sentence imposed pursuant to 18 U.S.C. § 924 (c) for discharging a firearm during the course of a drug trafficking crime. He contends that he was sentenced in violation of the Sixth Amendment and that the district court erred in using a preponderance of the evidence standard when it found that he discharged a firearm. We hold that Dare's mandatory minimum sentence imposed through judicial factfinding utilizing a preponderance of the evidence standard does not violate the Sixth…

Stephen Douglas Dare appeals his statutory mandatory minimum ten-year sentence imposed pursuant to 18 U.S.C. § 924 (c) for discharging a firearm during the course of a drug trafficking crime. He contends that he was sentenced in violation of the Sixth Amendment and that the district court erred in using a preponderance of the evidence standard when it found that he discharged a firearm. We hold *636 that Dare’s mandatory minimum sentence imposed through judicial factfinding utilizing a preponderance of the evidence standard does not violate the Sixth Amendment, pursuant to Harris v. United States, 536 U.S. 545 , 122 S.Ct. 2406 , 153 L.Ed.2d 524 (2002). We affirm the judgment.

BACKGROUND

On April 23, 2003, Steven Dare met several coworkers at a local bar and he drank alcohol for several hours. He stated that he was “pretty well trashed.” His younger friend Casey arrived in the bar with a person that Dare did not know. Casey explained that this person wanted to buy some marijuana. Unbeknownst to both Dare and Casey, the buyer was a drug informant working for the Montana drug task force.

The trio of Dare, Casey, and the informant drove to Dare’s home. Dare sold the informant a bag…

I respectfully dissent. Harris v. United States, 536 U.S. 545 , 122 S.Ct. 2406 , 153 L.Ed.2d 524 (2002), is no longer good law in cases where a defendant receives a sentence, based on facts found by a judge other than a prior conviction, that is higher than the maximum sentence the judge could have imposed based solely on facts either admitted by the defendant or found by a jury beyond a reasonable doubt. See United States v. Booker, — U.S. -, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005); Blakely v. Washington, 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004). Blakely and Booker changed our analysis.

First, although we used to consider only the statutory maximum for a sentence, we must now also consider the maximum under the Sentencing Guidelines when a defendant has been sentenced under a mandatory sentencing scheme. Further, we focus only on whether that fact increased the defendant’s sentence above the máxi-mum guidelines sentence. In other words, we focus only on the effect of a fact found by a judge on the defendant’s sentence. We no longer distinguish between facts which are elements of the crime and those that are traditionally considered sentencing factors.

Second, any…