United States of America v. Dayonta McC Linton

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-2860
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
DAYONTA M CC LINTON ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:18-cr-00252-TWP-MJD-1 — Tanya Walton Pratt, Chief Judge.
____________________
A RGUED O CTOBER 25, 2021 — DECIDED J ANUARY 12, 2022
____________________
Before EASTERBROOK, R OVNER , and WOOD, Circuit Judges.
R OVNER , Circuit Judge. In search of pharmaceutical drugs,
Dayonta McClinton and five accomplices, Marvin Golden,
Malik Perry, Larry Warren, Willonte Yates, and an unnamed
getaway driver robbed a CVS pharmacy at around eight
o’clock in the evening of October 13, 2015. The robbers
pointed guns at customers, grabbed purses and wallets, and
demanded their cell phones, which they stomped to prevent
calls to police. But all did not go as planned. One customer

-- 1 of 9 --

2 No. 20-2860
fled, and although Yates chased after her, she escaped by
jumping a fence and running to a nearby restaurant. Yates re-
turned and told the others to hurry up. He and Warren took
money from the cash register, but the drugs proved harder to
acquire than they had thought. One of the gang pointed a gun
at a pharmacy technician and demanded drugs, but the tech-
nician informed him that the majority of the drugs that the
crew wanted were kept in a time-delay safe. He did give one
of the robbers one bottle of hydrocodone, which the phar-
macy kept outside the safe pursuant to store policy for this
exact purpose—to mollify robbers who might become agi-
tated when the safe would not open. The policy turned out to
be prescient. When the pharmacist entered the passcode and
the safe would not open, the robbers became agitated, bang-
ing on the counter and knocking over a cabinet. To appease
the robbers, the pharmacist additionally offered prometha-
zine syrup and acetaminophen—both with codeine, neither of
which were in the safe. Worried about time, the robbers left
before the safe opened. Perry had possession of the few drugs
that the robbers were able to acquire before leaving the phar-
macy.
The team of robbers drove to an alley about ten minutes
away to split the proceeds. McClinton and Perry began argu-
ing over the disappointing haul when Perry declared “ain’t
nobody getting none,” and exited the car with all of the drugs.
McClinton followed Perry out of the car and shot him four
times in the back, killing him. Golden, Warren, and Yates ex-
ited the car and ran away. The following day at a dice game,
McClinton told another player, that the group had “hit a phar-
macy” the night before, and that he shot Perry after they got
into a dispute about splitting the proceeds.

-- 2 of 9 --

No. 20-2860 3
After transfer to adult court (McClinton was three months
away from his eighteenth birthday at the time of the robbery),
a jury found McClinton guilty of robbing the CVS in violation
of 18 U.S.C. § 1951(a); and brandishing a firearm during the
CVS robbery in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The
jury found him not guilty of the indicted crimes of robbery of
Perry, in violation of 18 U.S.C. § 1951(a), and causing death
while using a firearm during and in relation to the robbery of
Perry, in violation of 18 U.S.C. § 924(j)(1). At sentencing, the
district court concluded, using a preponderance of the evi-
dence standard, that McClinton was responsible for Perry’s
murder. The district court judge therefore enhanced McClin-
ton’s offense level from 23 to 43, but also varied downward to
account for McClinton’s age and the sentences of his co-de-
fendants, ultimately sentencing him to 228 months in prison.
McClinton asks us to consider two questions. First,
whether the district court could consider conduct for which
McClinton was acquitted for purposes of calculating his sen-
tence. The second is whether McClinton’s counsel was inef-
fective during his juvenile transfer proceeding.
A. The use of acquitted conduct in sentencing
The Supreme Court has held that “a jury’s verdict of ac-
quittal does not prevent the sentencing court from consider-
ing conduct underlying the acquitted charge, so long as that
conduct has been proved by a preponderance of the evi-
dence.” United States v. Watts, 519 U.S. 148, 157 (1997). The
holdings in this circuit have followed this precedent, as they
must. See, e.g., United States v. Slone, 990 F.3d 568, 572 (7th Cir.
2021), cert. denied, No. 20-8280, 2021 WL 4508213 (Oct. 4, 2021)
(noting that “sentencing courts may consider acquitted

-- 3 of 9 --

4 No. 20-2860
conduct provided that its findings are supported by a prepon-
derance of the evidence.”).
Despite this clear precedent, McClinton’s contention is not
frivolous. It preserves for Supreme Court review an argument
that has garnered increasing support among many circuit
court judges and Supreme Court Justices, who in dissenting
and concurring opinions, have questioned the fairness and
constitutionality of allowing courts to factor acquitted con-
duct into sentencing calculations. See, e.g., Jones v. United
States, 574 U.S. 948, 949–50 (2014) (Scalia, J., joined by Thomas
& Ginsburg, JJ., dissenting from the denial of cert.) (noting
that it violates the Sixth Amendment when the conduct used
to increase a defendant’s penalty is found by a judge rather
than by a jury beyond a reasonable doubt, and highlighting
that this is particularly so when the facts leading to a substan-
tively unreasonable sentence are ones for which a jury has ac-
quitted the defendant); Watts, 519 U.S. at 170 (Kennedy, J., dis-
senting) (allowing district judges “to increase a sentence
based on conduct underlying a charge for which the defend-
ant was acquitted does raise concerns about undercutting the
verdict of acquittal.”); United States v. Bell, 808 F.3d 926, 928
(D.C. Cir. 2015) (Kavanaugh, J., concurring in denial of the
r’hrg en banc) (“Allowing judges to rely on acquitted or un-
charged conduct to impose higher sentences than they other-
wise would impose seems a dubious infringement of the
rights to due process and to a jury trial.”). Many other circuit
court judges have supported this position in dissenting and
concurring opinions.
But despite the long list of dissents and concurrences on
the matter, it is still the law in this circuit—as it must be given
the Supreme Court’s holding—that a sentencing court may

-- 4 of 9 --

No. 20-2860 5
consider conduct underlying the acquitted charge, so long as
that conduct has been found by a preponderance of the evi-
dence. Watts, 519 U.S. at 157. Until such time as the Supreme
Court alters its holding, we must follow its precedent. Cross v.
United States, 892 F.3d 288, 303 (7th Cir. 2018) (“As a lower
court, we are required to follow the Court’s precedents until
the Court itself tells us otherwise.”). McClinton’s counsel ad-
vocated thoroughly by preserving this issue for Supreme
Court review.
In applying this precedent to the case before us, we may
review for clear error only the district court’s factual findings
that Perry’s murder was relevant conduct. United States v.
Vaughn, 585 F.3d 1024, 1031 (7th Cir. 2009). The United States
Sentencing Guidelines define relevant conduct as:
(A) all acts and omissions committed, aided,
abetted, counseled, commanded, induced, pro-
cured, or willfully caused by the defendant; and
(B) in the case of a jointly undertaken criminal
activity (a criminal plan, scheme, endeavor, or
enterprise undertaken by the defendant in con-
cert with others, whether or not charged as a
conspiracy), all acts and omissions of others that
were—
(i) within the scope of the jointly undertaken
criminal activity,
(ii) in furtherance of that criminal activity, and
(iii) reasonably foreseeable in connection with
that criminal activity;

-- 5 of 9 --

6 No. 20-2860
that occurred during the commission of the of-
fense of conviction, in preparation for that of-
fense, or in the course of attempting to avoid de-
tection or responsibility for that offense;
U.S.S.G. 1B1.3. The distribution of proceeds of a robbery is un-
doubtedly an act that occurs in furtherance of that robbery.
See, e.g., United States v. Hargrove, 508 F.3d 445, 449 (7th Cir.
2007) (conversations about getting a cut of the proceeds indi-
cated that defendant was still part of the conspiracy); United
States v. Gajo, 290 F.3d 922, 928 (7th Cir. 2002) (explaining that
the conspiracy continues as the co-conspirators acquire the
proceeds); United States v. Morgan, 748 F.3d 1024, 1036–37
(10th Cir. 2014) (“It is well settled that the distribution of the
proceeds of a conspiracy is an act occurring during the pen-
dency of the conspiracy.”).
In this case Perry’s murder clearly occurred in the course
of the planned robbery. Dividing up the proceeds of the rob-
bery was part and parcel of the plan to obtain cash and drugs
for the perpetrators. The fact that, in order to avoid detection,
the group traveled a safe distance away from the CVS and
waited a few minutes to divvy up the drugs and cash, does
not sever its connection to the crime. It was Perry’s announce-
ment that he intended to keep the stolen drugs for himself that
drew McClinton’s ire. And it was owing to the prior decision
of McClinton, Perry, and others to arm themselves for the rob-
bery that ensured McClinton had a firearm at the ready to set-
tle the dispute by shooting Perry. There is no doubt that under
Watts, the murder was relevant conduct that could be used to
calculate McClinton’s sentence.

-- 6 of 9 --

No. 20-2860 7
B. Ineffective assistance of counsel
McClinton also claims that the lawyer who represented
him during the juvenile transfer proceeding was ineffective
for failing to appeal the juvenile court order transferring the
matter to adult court. In fact, McClinton is so adamant about
bringing this claim before the court now that he moved to file
his own pro se supplementary brief on the matter, in addition
to his lawyer’s brief. At oral argument, with some prompting
from the panel, McClinton’s lawyer withdrew McClinton’s
ineffective assistance of counsel claim. We take just a moment
to explain why this was the most effective advocacy she could
provide to her client.
Having this matter aired before a court is clearly im-
portant to McClinton. We can assume, therefore, that he
wishes to have the claim heard by a court where it has a
chance for success. That is not this court, at this time. The ap-
peal here is a direct appeal from the district court’s judgment
finding McClinton guilty of robbery and brandishing a fire-
arm in relation to a crime of violence. Our review is limited to
the factual record developed in the district court below, which
does not include evidence concerning his prior counsel’s ad-
vice and decision making concerning the transfer order. A de-
fendant does not have the opportunity on appeal to present
evidence outside of the record about the ways in which his
lawyer below may have been ineffective. Instead, the United
States Code creates an opportunity for a secondary or collat-
eral proceeding where the defendant can develop and present
to the court all of this evidence, even deposing his own lawyer
as a witness. 28 U.S.C. § 2255; Massaro v. United States, 538 U.S.
500, 504–09 (2003). For this reason, anyone who raises a claim
of ineffective assistance of counsel on direct review, as

-- 7 of 9 --

8 No. 20-2860
McClinton initially did, is doomed to fail. See Delatorre v.
United States, 847 F.3d 837, 844 (7th Cir. 2017).
During oral argument, McClinton’s lawyer dutifully re-
ported to this court that, despite her warning to her client,
McClinton was adamant about raising the ineffectiveness
claim in the direct appeal. But a defendant only gets one
chance to raise a claim of ineffective assistance of counsel.
And once he raises the claim and loses, he can never raise it
again. United States v. Flores, 739 F.3d 337, 341 (7th Cir. 2014).
As we have warned defendants and their lawyers time
and time again, claims of ineffective assistance of counsel are
“’invariably doomed’ on direct review because they often re-
quire augmentation of the record with extrinsic evidence,
which cannot be considered.” Delatorre, 847 F.3d at 844 (7th
Cir. 2017) (citing United States v. Gilliam, 255 F.3d 428, 437 (7th
Cir. 2001)). We have even noted that this court has never re-
versed a conviction on direct appeal because of ineffective as-
sistance of counsel. United States v. Trevino, 60 F.3d 333, 339
(7th Cir. 1995). As far as we can tell, that statistic remains true
today. See United States v. Morgan, 929 F.3d 411, 433 (7th Cir.
2019). We have documented our concerns and warnings re-
peatedly. See United States v. Harris, 394 F.3d 543, 557 (7th Cir.
2005) (compiling cases with warnings against pursuing inef-
fective assistance claims during direct appeal). See also Mas-
saro, 538 U.S. at 506.
At the end of the day, counsel’s duty to vigorously defend
her client in an effective manner means that she should not
make a claim that she knows has zero chance of success, when
she knows that reserving such a claim for a collateral proceed-
ing is the only means of preserving whatever chance of suc-
cess on the merits that the claim might have. Some aspects of

-- 8 of 9 --

No. 20-2860 9
the trial and decision-making are completely within the prov-
ince of the client—“notably, whether to plead guilty, waive
the right to a jury trial, testify in one’s own behalf, and forgo
an appeal.” McCoy v. Louisiana, 138 S. Ct. 1500, 1508 (2018).
Trial management, tactical and strategic decisions such as
“what arguments to pursue, what evidentiary objections to
raise, and what agreements to conclude regarding the admis-
sion of evidence” are all within the lawyer’s province. Id. (cit-
ing Gonzalez v. United States, 553 U.S. 242, 248 (2008)). In this
case, McClinton’s counsel chose the only competent strategy
by withdrawing the claim of ineffective assistance, thus pre-
serving the claim for a later proceeding under 28 U.S.C.
§ 2255. For this reason, McClinton’s pro se motion for leave to
file a pro se supplemental brief is DENIED as moot. The judg-
ment of the district court is AFFIRMED in all other respects.

-- 9 of 9 --