United States of America v. Charles Kirby

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,
v.
CHARLES KIRBY,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana,
Indianapolis Division.
No. 1:19-cr-00201-JMS-DLP-1
Jane Magnus-Stinson,
Judge.
O R D E R
A jury found Kirby guilty of a drug trafficking 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 offenses, 18 U.S.C. § 924(c)(1), the district court concluded by a
preponderance of the evidence that Kirby had possessed a firearm 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. F ED. R. A PP . P. 34(a)(2)(B).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 22-3037 Page 2
accept a drug delivery. It therefore applied U.S.S.G. § 2D1.1(b)(1) to add two offense
levels. With a total offense 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 offense level under the Sentencing Guidelines was
unconstitutional by taking into account the conduct underlying an offense 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 five petitions for writs of certiorari pending
when he filed 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 affirms the continued use of acquitted conduct in sentencing,
Kirby’s sentence should be affirmed.”
On June 30, 2023, the Supreme Court denied all five 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
first instance.
Because the Court did not grant certiorari in McClinton and the companion cases,
Kirby’s arguments are effectively 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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