USA v. Charles Kirby, No. 22-3037 (7th Cir. 2023)
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NONPRECEDENTIAL DISPOSITION To be cited only in accordance with FED. R. APP. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted October 3, 2023 * Decided October 4, 2023 Before MICHAEL B. BRENNAN, Circuit Judge MICHAEL Y. SCUDDER, Circuit Judge AMY J. ST. EVE, Circuit Judge No. 22-3037 UNITED STATES OF AMERICA, Plaintiff-Appellee, Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. v. CHARLES KIRBY, Defendant-Appellant. No. 1:19-cr-00201-JMS-DLP-1 Jane Magnus-Stinson, Judge. ORDER A jury found Kirby guilty of a drug tra cking conspiracy and attempting to possess heroin with the intent to distribute. 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A). Although the jury found him not guilty of carrying a deadly weapon during and in relation to these o enses, 18 U.S.C. § 924(c)(1), the district court concluded by a preponderance of the evidence that Kirby had possessed a rearm while attempting to By prior order (App. Dkt. 24), we vacated oral argument in this appeal. We have agreed to decide the case without oral argument because the dispositive issue has been authoritatively decided. FED. R. APP. P. 34(a)(2)(B). * No. 22-3037 Page 2 accept a drug delivery. It therefore applied U.S.S.G. § 2D1.1(b)(1) to add two o ense levels. With a total o ense level of 32 and a criminal history category of I, Kirby’s guidelines range was 121 to 151 months’ imprisonment, and the court imposed the mandatory minimum sentence of 120 months. Although Kirby did not object to the increase under § 2D1.1(b)(1), he now seeks plain-error review of that adjustment on constitutional grounds. He argues that the two-level increase to his o ense level under the Sentencing Guidelines was unconstitutional by taking into account the conduct underlying an o ense of which he was acquitted. But Kirby concedes that United States v. Watts, 519 U.S. 148 (1997), controls the outcome of his appeal. There, the Supreme Court of the United States held that a sentencing court may consider conduct underlying an acquitted charge without violating the Constitution. But, relying on ve petitions for writs of certiorari pending when he led his brief, Kirby argued that, if the Supreme Court granted the petitions and overruled Watts, as the petitioners asked, he would be entitled to at least a limited remand. He acknowledges, however, that “[i]f the Supreme Court denies the petitions or grants them and a rms the continued use of acquitted conduct in sentencing, Kirby’s sentence should be a rmed.” On June 30, 2023, the Supreme Court denied all ve petitions for writs of certiorari. United States v. McClinton, 23 F.4th 732 (7th Cir. 2022), cert. denied, 143 S. Ct. 2400 (2023); United States v. Bravo, 26 F.4th 387 (7th Cir. 2022), cert. denied, 143 S. Ct. 2690 (2023); United States v. Shaw, No. 18-50384, 2022 WL 636639 (9th Cir. Mar. 4, 2022), cert. denied, 143 S. Ct. 2689 (2023); United States v. Karr, No. 21-50219, 2022 WL 1499288 (5th Cir. May 12, 2022), cert. denied, 143 S. Ct. 2691 (2023); United States v. Bullock, 35 F.4th 666 (8th Cir. 2022), cert. denied, 143 S. Ct. 2691 (2023). Based on the Justices’ statements accompanying the denials of the petitions, the Court appears willing to allow the U.S. Sentencing Commission to address the issue of acquitted conduct in the rst instance. Because the Court did not grant certiorari in McClinton and the companion cases, Kirby’s arguments are e ectively moot, and, as he acknowledges, Watts compels us to uphold the application of § 2D1.1(b)(1) when his only objection is the use of acquitted conduct. Whether or not we agree with Kirby’s position, only the Court itself can overrule its decisions. See State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989); Cross v. United States, 892 F.3d 288, 303 (7th Cir. 2018); United States v. Elliott, 703 F.3d 378, 383 (7th Cir. 2012). Therefore, IT IS ORDERED that the judgment of the district court is AFFIRMED.
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