misconduct that cannot readily be broken into discrete, identifiable units that are meaningful for purposes of sentencing."
See United States v. Mullins, 971 F.2d 1138, 1143 (4th Cir. 1992); see also United States v. Hahn, 960 F.2d 903, 910 (9th Cir. 1992) ("In assessing whether conduct is relevant within the meaning of Guidelines 1B1.3(a)(2), the sentencing court is to consider such factors as the nature of the defendant's acts, his role, and the number and frequency of repetitions of those acts, in determining whether they indicate a behavior pattern").
Thus, the crimes addressed in the guideline relied upon in those cases are qualitatively different than RICO. RICO by its nature may involve a variety of seemingly distinct offenses which nevertheless are connected in the goal to further the enterprise. Therefore, I find without hesitation that the murder of Mutah Sessoms was relevant conduct under a RICO conviction.
Let me deal with the facts.
Finally, I must determine whether Mr. Bethea murdered Mutah Sessoms. This inquiry requires an initial determination of the appropriate evidentiary standard for finding facts at the sentencing hearing.
It is settled law that during the sentencing phase the trial judge acts as a fact finder, and the procedural safeguards that apply to a trial do not generally apply. See Kikumura, supra, at 1100.
Particularly relevant to this case the Supreme Court has held that in determining facts at the sentencing phase the sentencing court generally may use a "preponderance of the evidence" standard rather than a "beyond a reasonable doubt" standard. McMillan v. Pennsylvania, 477 U.S. 79, 88, 91 L. Ed. 2d 67, 106 S. Ct. 2411 (1986).
In United States v. Kikumura, supra, the Third Circuit addressed McMillan while reviewing a trial court's upward departure of a defendant's sentence from 30 months to 30 years. While the court of appeals warned that such departures may create a sentencing hearing that function "as a tail which wags the dog of the substantive offense," id. at 1101 (quoting McMillan at 88), the court ultimately upheld the district court's use of its discretion.
Specifically, Judge Becker, speaking for the panel, interpreted McMillan to hold that while a preponderance standard is generally constitutional, "a different question would be presented if the magnitude of a contemplated departure is sufficiently great that the sentencing hearing can fairly be characterized as a tail which wags the dog of the substantive offense." See Kikumura at 1101.
Therefore, the court held that "in such situations, the factfinding underlying that departure must be established at least by clear and convincing evidence."
The Supreme Court has stated that facts are proven by clear and convincing evidence if they produce in the mind of the trier of fact "an abiding conviction that the truth of the factual contentions are highly probable." See Colorado v. New Mexico, 467 U.S. 310, 316, 81 L. Ed. 2d 247, 104 S. Ct. 2433 (1984).
I believe that the reasoning in Kikumura applies equally to the use of offenses for which the defendant was not convicted in imposing a sentence under the RICO guideline. Fact finding pursuant to the RICO guideline contemplates a judge using his or her discretion to impose a sentence harsher than one based solely on the crimes for which the defendant was convicted.
Moreover, in this case, the government's motion, if granted, would increase the defendant's offense level from 39 to 43. The difference between exposures, though numerically small, is qualitatively great. If Mr. Bethea is sentenced under an offense level of 39, he may see the light of day again. If sentenced under an offense level of 43, he will not. Therefore, I will use a clear and convincing standard to determine whether Mr. Bethea murdered Mutah Sessoms.
I turn to that issue now.
At the conclusion of the closing arguments in the Bethea case I read the following instruction to the jury:
"To prove Racketeering Act One against either defendant, the government must prove the following three elements beyond a reasonable doubt:
"FIRST: That Mutah Sessoms was killed.