§380 Conspiracy, Attempt, Aiding
(U.S.S.G. §2X)
9th Circuit reverses for failure to consider guideline for attempted extortion. (224)(380) Defendant was convicted of attempted extortion. At sentencing, the district court failed to consider the guideline for attempts, § 2X1.1, which requires a reduction unless the remaining steps are so insubstantial that the commission of the substantive offense is inevitable. The Ninth Circuit found that this was plain error requiring reversal because there was a reasonable probability that the district court would have applied the reduction if it had considered it. U.S. v. Koziol, __ F.3d __ (9th Cir. Apr. 13, 2021) No. 19-50018.
2d Circuit agrees that terrorist conspiracy was “about to complete” underlying offense. (380) Based on a plan to kill nightclub attendees, defendant pled guilty to conspiracy to provide material support to a foreign terrorist organization, in violation of 18 U.S.C. § 2339B(a)(1). At sentencing, he sought a three-level reduction under § 2X1.1(b)(2), arguing that he was not “about to complete” the murders because his accomplices included government cooperators. The district court rejected the argument and sentenced him to the statutory maximum of 240 months. The Second Circuit affirmed, holding that even if § 2X1.1(b)(2) applied, the low end of the guideline range would still have been above the statutory maximum. Moreover, the offense came close enough to fruition to make the reduction inappropriate. U.S. v. Lutchman, __ F.3d __ (2d Cir. Dec. 6, 2018) No. 17-291.
2nd Circuit finds defendant knew mortgage fraud involved more than $1.5 million. (320)(380) Defendant, a state senator, was convicted of obstruction of justice in connection with a mortgage fraud investigation into Ahmad, a local businessman. Guideline § 2J1.2(c) directed the court to § 2X3.1, which led the court to § 2B1.1. It then applied a 16-level increase under § 2B1.1(b)(1)(I) for a loss of more than $1.5 million. The Second Circuit affirmed the 16-level enhancement, finding no “clear error” in the district court’s finding that defendant knew or should have known about Ahmad’s mortgage fraud, as well as its value. Defendant was aware that New York State regulators were investigating Ahmad’s business, and he knew that Ahmad had received inquiries from these regulators concerning forged signatures on some documents. During a recorded conversation, defendant strongly implied that he understood that Ahmad was committing fraud. He also expressed familiarity with the government’s publicly filed indictment in Ahmad’s case, which alleged that the fraud was worth over $50 million. Given this, it was not clear error for the district court to conclude that defendant should have known that Ahmad was defrauding individuals of more than $1.5 million. U.S. v. Sampson, __ F.3d __ (2d Cir. Aug. 6, 2018) No. 17-343-cr.
5th Circuit denies reduction for attempt. (380) Defendant was convicted of attempting to fraudulently possess 15 or more unauthorized access devices. He argued that the district court erred in declining to apply a three-level reduction for attempt under §2X1.1(b)(1). The court denied the reduction because it found that defendant had been about to complete all acts necessary for the successful completion of the substantive offense when he was apprehended. Defendant argued that the court erroneously overlooked Note 4 to §2X1.1, which triggers the attempt reduction where a defendant has completed only part of an intended offense but is assessed losses based on his intended completion of the entire offense. The Fifth Circuit upheld the denial of the attempt reduction. The key factor is not the amount of criminal activity the defendant has yet to undertake to cause the intended loss. Rather, “the focus is on the substantive offense and the defendant’s conduct in relation to that specific offense.” There was no merit to his contention that his offense was only partially completed under Note 4. U.S. v. Popa, 835 F.3d 506 (5th Cir. 2016).
D.C. Circuit remands to consider sentencing entrapment in armed robbery. (224)(380) Detectives arrested three defendants in a reverse sting, and the defendants pled guilty to conspiracy to interfere with commerce by robbing a liquor store. Defendants challenged a five-level increase under §§2X1.1 and 2B3.1(b)(2) for possessing firearms, contending that the undercover police officers instigated the use of the firearms in the reverse sting. They argued that the police brought a pistol and assault rifle to a meeting at which the robbery was being planned, and for a few minutes the officers placed those weapons in two defendant’s hands. None of the defendants was carrying a weapon of his own. The D.C. Circuit ruled that actual possession of a firearm is not required for the increase for inchoate offenses, such as the robbery conspiracy here. The district court properly found that defendants intended that firearms would be possessed during the robbery. Nonetheless, the case was remanded to determine whether the alleged police introduction of firearms into the conspiracy constituted sentencing entrapment. U.S. v. McKeever, __ F.3d __ (D.C. Cir. June 10, 2015) No. 13-3096.
8th Circuit limits knowledge requirement for conspiracy to specific offense characteristics. (320)(330) (380) Defendant was a backseat passenger in a vehicle stopped by police. Another passenger, Hicks, threw a loaded handgun into the back which the officers later discovered had been stolen. Defendant refused to testify before a grand jury investigating Hicks, and pled guilty to criminal contempt, in violation of 18 U.S.C. §401(3). The court found §2X3.1 applied, which provides for a base offense level of six levels lower than the offense level for the underlying offense—Hicks’ conviction for being a felon in possession of a firearm. Defendant argued that he did not, and should not have known that Hicks committed the offense after having been previously convicted of a crime of violence or controlled substance offense. The Eighth Circuit found this argument contrary to the plain language of 2X3.1. Note 1 says that the underlying offense level is calculated by applying the base offense level plus any applicable specific offense characteristics that were known, or reasonably should have been known, to the defendant. The knowledge requirement is thus limited to the applicable specific offense characteristics. U.S. v. Davis, __ F.3d __ (8th Cir. June 3, 2016) No. 15-3306.
8th Circuit reverses gun increase where court made no finding of defendant’s knowledge. (320)(330)(380) Defendant was a backseat passenger in a vehicle stopped by police. Another passenger, Hicks, threw a loaded handgun into the back seat which the officers later found had been stolen. Defendant refused to testify before a grand jury investigating Hicks, and pled guilty to criminal contempt, in violation of 18 U.S.C. §401(3). The district court sentenced him under §2X3.1, basing the offense level on the underlying offense, i.e., Hicks’ conviction for being a felon in possession of a firearm. The Eighth Circuit reversed. Under Note 1 to section 2X3.1, the sentence for an accessory after the fact is based on the base offense level for the underlying offense, plus any applicable specific offense characteristics that reasonably should have been known by the defendant. Here, the only evidence of defendant’s knowledge about the stolen handgun was paragraph 5 of the PSR, which stated only that “authorities later determined that the revolver had been stolen during a home burglary.” Since the government did not prove that defendant knew or should have known that the handgun was stolen, the district court erred in applying the enhancement. On remand, the government should have the opportunity to expand the record. U.S. v. Davis, __ F.3d __ (8th Cir. June 3, 2016) No. 15-3306.
6th Circuit upholds reliance on jury verdict to find object of conspiracy. (380) Sixteen defendants, members of an Amish community, were convicted of crimes stemming from a spate of hair-cutting and beard-shearing attacks against other Amish individuals. Based on each defendant’s conviction for conspiracy to conceal evidence, the district court used the conspiracy guideline, §2X1.1. The guidelines treat a single conspiracy with multiple objects as separate conspiracies, one for each object. §1B1.2(d). That creates difficulties if “the verdict or plea does not establish which offense(s) was the object of the conspiracy.” When that issue arises, the district court “sits as a trier of fact” and decides for itself which objects it “would convict the defendant of conspiring to commit.” Because their conspiracy count included multiple objects, two defendants argued that the district court had to perform this task and decide for itself whether there was sufficient evidence to convict each of them of conspiring to conceal evidence. The Sixth Circuit found no error. The jury’s special verdict established which offense was the object of the conspiracy. U.S. v. Mullet, __ F.3d __ (6th Cir. May 4, 2016) No. 15-3212.
5th Circuit rejects finding that defendant had completed or was about to complete all acts required to export ammunition to Mexico. (380) During a traffic stop, police found ammunition in the trunk of defendant’s vehicle. He admitted that he had purchased the ammunition for someone named Compadre, that Compadre had provided the money to buy the ammunition, and that the ammunition was destined for Mexico. The district court denied defendant a §2X1.1(b)(1) reduction for an attempt, finding he had completed or was about to complete all acts required to export the ammunition to Mexico. The Fifth Circuit reversed, finding the district court incorrectly determined that when defendant was arrested, he was on the verge of delivering the ammunition to a co-conspirator who would smuggle it across the border into Mexico. Defendant had bought the ammunition three days before he was stopped, and there was no evidence that defendant had arranged to meet Compadre on the day of his arrest or even that any arrangements had been made. Rather, defendant told officers, at the time of the traffic stop, that he was on his way home from his mother’s house when he was stopped. There was no contrary evidence. U.S. v. Soto, __ F.3d __ (5th Cir. Apr. 7, 2016) No. 15-40478.
7th Circuit denies reduction for solicitation where offense was covered by another guideline. (380) Defendant asked two undercover law enforcement agents posing as gun suppliers to kill the people he held responsible for his divorce and the loss of custody of his son. He pled guilty to using a facility of interstate commerce with intent that a murder be committed and possessing a firearm in furtherance of a crime of violence. On appeal, he argued that the district court erred in refusing to apply §2X1.1(b)(3)(A), which provides for a three-level decrease for solicitation “unless the person solicited to commit or aid the substantive offense completed all the acts he believed necessary for successful completion of the substantive offense….”. The guideline also states that “when an attempt, solicitation, or conspiracy is expressly covered by another offense guideline section” the sentencing court is to apply that guideline and not §2X1.1. The district court held that §2X1.1 was inapplicable because defendant’s offense conduct was covered by another guideline, and the Seventh Circuit agreed. Defendant’s offense conduct was specifically covered by §2A1.5 (“Conspiracy or Solicitation to Commit Murder”), which is listed in the Application Notes to §2X1.1 among the specific offense guidelines that expressly cover solicitation. U.S. v. Grzegorczyk, __ F.3d __ (7th Cir. Sept. 1, 2015) No. 14-3460.
8th Circuit rejects reduction for failure to complete all acts necessary for substantive offense. (380) Defendant and an accomplice agreed with an undercover agent to rob a cocaine stash house, kill the stash house’s two guards, and sell the stolen cocaine. Unknown to defendant and his accomplice, the stash house and the guards were fictitious, and authorities arrested them when they arrived at the house. Guideline § 2X1.1(b)(2) provides for a three-level reduction “unless … the circumstances demonstrate that the conspirators were about to complete all [acts necessary to complete the substantive offense] but for apprehension or interruption by some similar event beyond their control.” The Eighth Circuit upheld the denial of the reduction, ruling that the district court did not clearly err by finding the circumstances showed defendant would have completed all the acts necessary to complete the object of the conspiracy but for federal agents’ intervention. Factual impossibility constituted an event beyond defendant’s control and made the reduction inappropriate. U.S. v. Jones, __ F.3d __ (8th Cir. June 30, 2015) No. 14-2864. XE “U.S. v. Jones, __ F.3d __ (8th Cir. June 30, 2015) No. 14-2864.”
1st Circuit agrees that defendant’s conduct involved more than harboring a fugitive. (380) Defendant pled guilty to conspiracy to harbor a fugitive, conspiracy to commit identity fraud, and identity fraud based on various crimes she committed during her 16 years on the run with a wanted fugitive, Bulger. The sentencing judge calculated defendant’s base offense level for the conspiracy to harbor a fugitive count at 30 under § 2X3.1. Defendant argued that this number should have been 20 based on 2X3.1(a)(3)(B), which provides for a maximum offense level of 20 where “the conduct is limited to harboring a fugitive.” The First Circuit held that defendant’s conduct was not limited to harboring. First, defendant committed, and pled guilty to, other crimes in addition to harboring – conspiracy to commit identity fraud and identity fraud. The inquiry was not whether the additional crimes were solely done in furtherance of the harboring, but whether defendant did more than give Bulger shelter. Defendant clearly did. She traveled with Bulger across the country for an extended period of time, and then settled with him in California, where they remained for 15 years. During this time, defendant saw to Bulger’s day-to-day needs, handling tasks that helped Bulger keep his public outings to a minimum. U.S. v. Greig, 717 F.3d 212 (1st Cir. 2013).
Circuit says court was not required to hold evidentiary hearing to determine underlying offense. (380) Defendant, a former FBI agent, was convicted of racketeering, obstruction of justice and making false statements. Section 2J1.2 directs a court to use § 2X3.1 (accessory after the fact) if the obstruction of justice interfered with the investigation or prosecution of a criminal offense. Section 2X3.1 provides for an offense level based on the “underlying offense.” The district court found that the “underlying offense” was murder, which carries an offense level of 43. Defendant argued for the first time on appeal that the district court erred in using the murder guidelines without conducting any further fact-finding as to what exactly constituted the “underlying offense.” The First Circuit found no error. The plain language of § 2J1.2(c) and § 2X3.1 does not in any way oblige the court to conduct an evidentiary inquiry into the substance of the other offense. Here, the jury found that defendant had obstructed the prosecution of another case at various times, including after the grand jury had returning a superseding indictment charging various defendants with a number of crimes that included first-degree murder. The court reasonably looked to the most serious offense contained in the superseding indictment. U.S. v. Connolly, 341 F.3d 16 (1st Cir. 2003).
1st Circuit holds accessory after the fact accountable for reasonably known relevant conduct. (380) Defendant was convicted of acting as an accessory after the fact to a robbery. He argued that since being an accessory after the fact is not itself a crime of violence, sentencing enhancements related to the violent nature of the robbery should not apply to him. The First Circuit disagreed. Application Note 1 of § 2X3.1, the accessory after the fact guideline, references Note 10 to § 1B1.3, for purposes of computing the total offense level. That notes states, “in the case of … accessory after the fact, the conduct for which the defendant is accountable includes all conduct relevant to determining the offense level for the underlying offense that was known, or reasonably should have been known, by the defendant.” U.S. v. Mojica-Baez, 229 F.3d 292 (1st Cir. 2000).
1st Circuit finds defendant did more than give shelter to fugitives. (380) Defendant pled guilty to acting as an accessory after the fact to a robbery. Section 2X3.1 provides that a defendant’s offense level shall not exceed 20 where the defendant’s conduct “is limited to harboring a fugitive.” The district court did not cap defendant’s base offense level at 20 because it found that she had done more than simply give shelter to fugitives. The First Circuit agreed. On the day of the robbery, defendant accompanied one of the robbers out of the house, at first for one hour and then for two hours. When he returned from the robbery, defendant helped him secrete the proceeds by retrieving a key for him. Defendant later advised someone named “Rodi” that the money had been counted successfully. Finally, using a false name, defendant obtained three hotel rooms for the other participants in the robbery to use as a hideout. Thus, defendant helped the robbers in ways that were not limited to harboring a fugitive. U.S. v. Vega-Coreano, 229 F.3d 288 (1st Cir. 2000).
1st Circuit holds that enhancement for captain of vessel applies to conspiracies and attempts. (380) Section 2D1.1(b)(2)((B) requires a two-level enhancement if the defendant “acted as a … captain … aboard any craft or vessel carrying a controlled substance.” Defendant argued that the increase would only have been appropriate if he had actually carried out the act of transporting drugs, but was not proper for mere conspiracy and attempt. The First Circuit found this argument frivolous. The offense level for the crimes of conspiracy and attempt is “[t]he base offense level from the guideline for the substantive offense, plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty.” USSG § 2X1.1(a). Thus, the increase for acting as captain plainly is to be applied to convictions for conspiracy and attempt, so long as the necessary factual predicate for the enhancement exists. Defendant did not challenge the court’s finding that he was the captain of a boat intended to be used to carry marijuana. His argument was simply that the substantive crime was not committed. However, it did not matter whether he actually carried the controlled substance; his conspiring and his attempt to do so warranted the increase. U.S. v. Rodriguez, 215 F.3d 110 (1st Cir. 2000).
1st Circuit says reduction for incomplete conspiracy must be based on substantive offense charged. (380) Defendant pled nolo contendere to conspiracy to escape from a county jail. Defendant requested a three-level reduction under § 2X1.1(b)(2) for an incomplete conspiracy, claiming that he never intended to escape. Instead, his goal was to defraud other inmates by pretending he was going to escape and asking them for money to assist him. The government argued that any scheme to defraud was complete, because defendant had succeeded in getting $300 from another inmate. The district court declined to award defendant a reduction for an incomplete conspiracy because “the conspiracy to defraud was completed.” The First Circuit found this statement problematic, since the relevant inquiry under § 2X1.1(b)(2) was whether the “substantive offense” charged, the conspiracy to escape, had been completed. Even if there was ample evidence that the conspiracy to escape had been completed, given the government’s erroneous invitation for the court to look at this as a conspiracy to defraud, remand was necessary to clarify the matter. U.S. v. Meader, 195 F.3d 66 (1st Cir. 1999).
1st Circuit says offense underlying perjury not dependent on offense of conviction. (380) Defendant, a Boston police officer, was present when Cox, a plain clothes Boston police officer, was allegedly mistaken for a fleeing suspect and beaten by unknown police officers. Defendant was convicted of perjury and obstruction of justice after he told a grand jury that he did not see Cox chase the fleeing suspect and did not see Cox being beaten. The court applied cross-references in §§ 2J1.2(c)(1), § 2J1.3(c)(1), and § 2X3.1, to sentence defendant under § 2H1.1, finding that the “underlying offense” was the violation of constitutional rights by the intentional use of excessive force by police officers. The court then calculated defendant’s sentence under § 2A2.2, the aggravated assault guideline. Defendant claimed that since he was only convicted of lying about seeing Cox chase the suspect, and was acquitted of lying about seeing Cox being beaten, the underlying offense could not include the intentional use of force. The First Circuit found that defendant’s acquittal had no bearing on what offenses were under investigation when he testified before the grand jury, and thus had no bearing on the offenses underlying the perjury conviction. Section 2J1.2(c)(1)’s cross reference does not depend on the defendant’s actual conviction as an accessory after the fact to the offense under investigation. U.S. v. Conley, 186 F.3d 7 (1st Cir. 1999).
1st Circuit refuses to apply § 2X1.1 to completed substantive offense. (380) Defendant attempted to fraudulently obtain and deposit bank drafts drawn against corporate bank accounts of various companies. In one instance, he completed and faxed to the bank all the necessary information to obtain $150,000. Because the bank suspected fraud, it never completed processing defendant’s request and defendant failed to obtain any funds. One month later, defendant sent to the bank forms which were to be used obtain a total of $583,443. He received $268,000 before his actions were discovered. The First Circuit refused to sentence these actions as attempts under § 2X1.1 because defendant completed the substantive crimes. Under U.S. v. Egemonye, 62 F.3d 425 (1st Cir. 1995), § 2X1.1 applies only where the defendant has not completed the actions necessary to the substantive offense. Defendant completed all the necessary acts for the crimes of wire fraud when he faxed 30 bank draft sales form requests to the bank in furtherance of his scheme to obtain $150,000, and when he sent by modem 80 transaction requests to the bank in furtherance of his scheme to obtain $583,443. U.S. v. Carrington, 96 F.3d 1 (1st Cir. 1996).
1st Circuit agrees intended loss equaled aggregate credit limits of purchased credit cards. (380) On four occasions, defendant purchased credit cards from an undercover agent. The first three transactions involved a total of 11 cards, while the last transaction involved 40 cards. Defendant was immediately arrested after the fourth sale and did not have the opportunity to use the cards. The First Circuit agreed that the intended loss under § 2F1.1 equaled the aggregate credit limits of all of the purchased cards. Although defendant only realized 53 % of the aggregate limits of the cards from the first three transactions and nothing from the final batch, there was evidence that he had instructed his runners to obtain cash from the banks at the card limits. The 53 % figure represented only the amount that defendant had secured at the time his scheme was interrupted by arrest. Where there is good evidence of actual intent and some prospect of success, a court is not required to engage in a refined forecast of how successful the scheme is likely to be. Defendant was not entitled to a reduction under § 2X1.1 for a partially completed offense. Although the question was close, the court concluded that § 2X1.1 is limited to cases where the substantive offense has not been completed. Here, defendant had completed his substantive crime by purchasing the cards. U.S. v. Egemonye, 62 F.3d 425 (1st Cir. 1995).
1st Circuit refuses reduction where robbery conspiracy was not completed. (380) Defendant was convicted of numerous offenses relating to a conspiracy to rob an armored car at a shopping mall. The plan was frustrated when the truck left the location earlier than usual. The 1st Circuit affirmed that defendant was not entitled to a reduction under section 2X1.1(b), which applies to attempts and conspiracies. The conspirators arrived at the mall prepared and equipped to carry out a robbery and were thwarted only by the unexpected early departure of the truck. The district court could conclude that defendant was “about to complete” a robbery, “but for apprehension or interruption by some similar event” beyond his control. The guideline reflects a policy decision that conspiracies and attempts should be treated like substantive offenses for sentencing purposes if the substantive offense was nearly completed and the defendant did not voluntarily withdraw. U.S. v. Chapdelaine, 989 F.2d 28 (1st Cir. 1993).
1st Circuit affirms that attempts to illegally transfer bank funds were completed. (380) Defendant arranged for his bank to transfer money from unclaimed accounts to accounts he controlled at other banks. At the time he submitted the forms for one of the transfers, he also submitted two additional forms to transfer $191,985 from another unclaimed account. Before the bank transferred the money, however, he retrieved the forms and stopped the process. The 1st Circuit affirmed the inclusion of the $191,985 in his offense level under section 2B1.1(b)(1). Application note 2 says attempts are to be determined under section 2X1.1. Under 2X1.1(b)(1), the attempt is treated as a completed attempt if the defendant was about to complete the offense but for apprehension or interruption by a similar event beyond defendant’s control. Here, testimony indicated that defendant withdrew the transfer request after a bank officer became suspicious and asked questions about the transfers. U.S. v. Oyegbola, 961 F.2d 11 (1st Cir. 1992).
1st Circuit applies guidelines to defendants who failed to withdraw from conspiracy prior to guidelines’ effective date. (380) The 1st Circuit affirmed the application of the guidelines to defendants involved in a conspiracy that began prior to and continued beyond November 1, 1987, the effective date of the guidelines. Although defendants contended that their involvement in the conspiracy ended no later than the summer of 1987, there was no evidence that defendants took affirmative actions to withdraw from the conspiracy. Mere cessation of activity, in and of itself, is insufficient to constitute withdrawal from a conspiracy. Moreover, there was evidence that defendants attempted to resume more active participation in the conspiracy by reestablishing their supply relationship with a co-conspirator. The court rejected defendants’ contention that, for purposes of factoring guideline calculations, only activity occurring subsequent to November 1, 1987 should have been considered. The guidelines take into account the entirety of the defendant’s behavior in furtherance of the conspiracy. U.S. v. David, 940 F.2d 722 (1st Cir. 1991).
1st Circuit affirms applicability of guidelines where defendant failed to show he withdrew from conspiracy prior to effective date. (380) Defendant contended that it was improper to apply the guidelines to his conspiracy conviction because the government produced no evidence of his involvement in the conspiracy after the effective date of the guidelines. The 1st Circuit held the guidelines were applicable to defendant’s offense, since defendant failed to demonstrate that he withdrew from the conspiracy prior to the effective date. U.S. v. Arboleda, 929 F.2d 858 (1st Cir. 1991).
1st Circuit upholds finding of conspiracy to burn an oil-soaked wooden warehouse located across the alley from an occupied residence. (380) The sentencing court increased defendant’s base offense level based on a finding that his actions recklessly endangered others. Defendant argued that because the conspiracy was far from complete and he did not know the distance of the residence from the warehouse, reckless endangerment was not established with reasonable certainty. The 1st Circuit held that “the question of reasonable certainty goes to what with reasonable certainty can be determined to be the conspirator’s intent.” Based on the facts presented, the district court was not clearly erroneous in concluding that the conspiracy would have endangered the occupants of the residence or the fire-fighters called upon to control the fire. U.S. v. Medeiros, 897 F.2d 13 (1st Cir. 1990).
1st Circuit holds sentencing enhancements do not violate double jeopardy. (380) A drug defendant who was acquitted at an earlier trial for possession of a weapon during a drug offense claimed that it violated the Double Jeopardy Clause to use the prior acquittal for enhancement purposes. If he had been convicted of the prior gun charge, he would have received a separate sentence. Under the guidelines, he received only an enhancement of his sentence. Thus there was no double jeopardy violation. U.S. v. Mocciola, 891 F.2d 13 (1st Cir. 1989).
2nd Circuit says § 2X1.1(a) cross-reference must be based on “reasonable certainty.” (380) Defendants were convicted of a variety of firearms trafficking charges, including engaging in a domestic firearms trafficking conspiracy. Section 2X1.1(a) states that where a conspiracy is not covered by a specific offense guideline, the base level is the “base offense level from the guidelines for the substantive offense, plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty.” The district court looked to § 2K2.1(a)(4)(B) to set the base offense level at 20 because the offense involved a machine gun and was committed while defendant was an illegal alien. However, the Second Circuit ruled that it was improper to use the preponderance of the evidence standard to make factual findings for two offense level increases – one for a conspiracy involving more than 200 weapons (§ 2K2.1(b) (1)(E)) and the other for a conspiracy involving a destructive device (§ 2K2.1(b)(3)(A)). The offense level adjustments in § 2K2.1(b) do not mention a conspiracy. Therefore, the district court should have reverted to the “reasonable certainty” standard described in § 2X1.1(a) when it applied the two offense level increases. U.S. v. Nadirashvili, 655 F.3d 114 (2d Cir. 2011).
2nd Circuit holds that cross-reference to accessory after the fact guideline applied to defendant convicted of obstruction under endeavoring theory. (380) Defendant was convicted of “endeavoring” to obstruct justice in violation of 18 U.S.C. § 1503. Section 2J1.2 applied, and required a cross-reference to § 2X3.1, the accessory after the fact guideline, whenever the offense “involved obstructing the investigation or prosecution of a criminal offense.” Defendant argued that the cross reference did not apply because he was convicted of endeavoring to obstruct justice but was not proven to have actually obstructed justice. The Second Circuit held that the § 2J1.2 cross-reference applied to his endeavoring offense. The panel agreed with the reasoning of four sister circuits that have considered the issue. Since § 2J1.2 is the only section of the guidelines that covers § 1503 (obstruction of justice), it follows that endeavoring to obstruct justice, a subpart of § 1503, is to be included within § 2J1.2. U.S. v. Giovanelli, 464 F.3d 346 (2d Cir. 2006).
2nd Circuit remands where court applied wrong standard for robbery conspiracy increase. (380) Defendant acted as the “inside man” in a conspiracy to rob a federal credit union. The conspiracy guideline uses the base offense level from the substantive offense, plus any adjustments “that can be established with reasonable certainty.” U.S.S.G. § 2X1.1(a). The base offense level for robbery (20) is increased by five “if a firearm was brandished or possessed.” U.S.S.G. § 2B3.1(b)(2)(C). In applying this enhancement, the district court erroneously stated that the proper test was “whether it was reasonably foreseeable that a firearm would be brandished or possessed during the commission of the robbery.” The government offered no evidence that a firearm was actually possessed in connection with the conspiracy. A conspirator cannot be held liable for an action that was intended by a co-conspirator (reasonably foreseeable or not) if the action did not actually occur, unless it was within the specifically intended scope of the conspiracy. The district court’s misstatement of the law may not have affected defendant’s sentence, since the court made findings that could have supported the increase. It could have concluded that the use of firearms was a specifically intended element of the conspiracy. However, as the district court was proceeding under an inapplicable legal standard, it never made that finding. The Second Circuit remanded. U.S. v. Savarese, 404 F.3d 651 (2d Cir. 2005).
2nd Circuit says court did not make sufficient loss findings for conspiracy defendant. (380) Defendant participated in conspiracy to rob the vault of an armored car company. The conspirators were arrested before they could commit the actual robbery. The government later learned that the armored car company had $5 million in its vault on the day of the planned robbery. The district court found that defendant intended to rob a vault that contained a “substantial” amount of cash, and applied a six-level increase for an intended loss of between $2.5 and 5 million under § 2B3.1(b)(7)(G). The Second Circuit ruled that the court’s finding that defendant specifically intended to steal a “substantial” amount was insufficiently grounded in the record to warrant the six-level increase. Note 2 to § 2X1.1, the conspiracy guideline, states that only specific offense characteristics from the guidelines for the substantive offense that apply are those that are determined to have been “specifically intended” or “actually occurred.” In imposing an enhancement under § 2X1.1 on a conspiracy conviction, the district court must make appropriate findings of the defendant’s intention to cause a loss falling into a particular range delineated by § 2B3.1(b) before it may apply an enhancement under that guideline. While the facts might support such a finding, the enhancement could not be upheld because court did not make the requisite findings. U.S. v. Velez, 357 F.3d 239 (2d Cir. 2004).
2nd Circuit refuses to apply reduction where defendant did not object to PSR’s claim that conspirators were about to complete robbery. (380) Defendant participated in conspiracy to rob the vault of an armored car company. After a meeting with his co-conspirators, defendant left and drove by the company’s premises, stopping at a convenience store to purchase gloves to use during the robbery. Upon returning to the meeting place, defendant and his associates were arrested. The Second Circuit upheld the district court’s refusal to apply a three-level reduction under § 2X1.1(b)(2) for an uncompleted offense. That section expressly instructs the court not to impose the reduction where “the circumstances demonstrate that the conspirators were about to complete all such acts but for apprehension or interruption by some similar event beyond their control.” The PSR stated that defendant and his co-conspirators were about to complete the robbery had they not been arrested. Defendant did not object to any of the facts contained in the PSR regarding the planning, attempted execution, or termination of the robbery conspiracy, and could not dispute that the arrest was beyond his control. Therefore, the court properly refused to grant defendant the reduction for an uncompleted offense. U.S. v. Velez, 357 F.3d 239 (2d Cir. 2004).
2nd Circuit agrees that police officer could foresee drug transaction in crack house he protected. (380) Defendant, a former police officer, was convicted of aiding and abetting the maintenance of a crack house. The guideline applicable to maintaining a crack house is § 2D1.8. The district court found that defendant “knew that 1213 First Avenue was a crack house in which numerous illegal crack cocaine transactions had occurred,” and that when defendant talked to Wharry on March 8, 2000, and warned her about the police surveillance, he believed “that a drug transaction was or was about to take place in the crack house.” Thus, the court found that defendant was accountable for the 9.5 grams of crack sold to the confidential informant that day “because, based on his knowledge and experience as a police officer, the participants and the entire circumstances by a preponderance of the evidence the quantity of drugs was reasonably foreseeable by him.” The Second Circuit found no clear error in any of these findings. Moreover, there was no merit to defendant’s contention that he was entitled to a four-level reduction under § 2D1.8(a)(2) on the ground that he had no participation in the underlying controlled substance offense other than allowing use of the premises. This reduction is not applicable “unless the defendant initially leased, rented, purchased, or otherwise acquired a possessory interest in the premises for a legitimate purpose.” Note 1 to § 2D1.8. U.S. v. Hamilton, 334 F.3d 170 (2d Cir. 2003).
2nd Circuit holds that defendants were entitled to reduction for uncompleted substantive offense. (380) Defendants conspired to perpetrate a “pump and dump” scheme, a stock manipulation scheme in which the conspirators first artificially inflate the price of a stock, and then dump the stock once the price becomes sufficiently high. They were arrested during the planning stages of the conspiracy. The district court refused to grant them a § 2X1.1(b)(2) reduction that applies “unless the defendant or a co-conspirator completed all the acts the conspirators believe necessary on their part for the successful completion of the substantive offense …” The government had argued that the reduction does not apply if “the conspirators had completed the acts that constituted the elements of at least one of the substantive offenses.” By the time of their arrest, defendants had committed the substantive offense of mail fraud. The Second Circuit rejected this interpretation. Under note 2 to § 2X1.1, “substantive offense” means “the offense that the defendant was convicted of soliciting, attempting, or conspiring to commit.” Even if defendants completed the technical elements of a substantive offense of wire or securities fraud, they did not complete “all of the acts the conspirators believed necessary on their part for the successful completion of the substantive offense,” the pump-and-dump scheme charged in the indictment. The district court erred in not applying the reduction to defendants. U.S. v. Downing, 297 F.3d 52 (2d Cir. 2002).
2nd Circuit says findings insufficient to deny reduction for inchoate offense. (380) Defendants was a member of a seditious conspiracy that attempted to murder Hosni Mubarak, assisted with the bombing of the World Trade Center, and attempted to bomb buildings and tunnels in New York City. Section 2X1.1(b)(2) authorizes a three-level reduction for uncompleted conspiracies. The district court denied the reduction to those defendants involved in completed acts, such as the World Trade Center bombing. The Second Circuit held that the district court did not make sufficient findings linking defendant El-Grabrowny to the World Trade bombing to support the denial of an inchoate offense reduction. The record showed that El-Grabrowny was in contact with the actual bombers in the weeks leading up to the bombing. One bomber made a phone call to El-Grabrowny as he was making arrangements to purchase the hydrogen gas for the bomb. The other bomber used a driver’s license with El-Grabrowny’s address on it when renting the Ryder truck used in the bombing. El-Grabrowny also accompanied the bombers to visit a jailed co-conspirator in the weeks before the attack. Nonetheless, the judge did not make specific findings linking El-Grabrowny to the bombing itself. U.S. v. Rahman, 189 F.3d 88 (2d Cir. 1999).
2nd Circuit rejects attempt guideline for possessing stolen property with intent to sell. (380) Defendant claimed that the district court should have computed his offense level under § 2X1.1, the guideline for attempt, because his possession of additional stolen parts was part of an uncompleted attempt to transport the parts. The Second Circuit held that defendant was properly sentenced under § 2B1.1, which is specifically called “Possessing Stolen Property.” Defendant did not simply attempt to possess stolen property, he actually possessed it. Defendant could not recharacterize his possession of stolen property as an uncompleted attempt to commit some other crime in an effort to receive the more beneficial treatment provided by § 2X1.1. U.S. v. Martin, 157 F.3d 46 (2d Cir. 1998).
2nd Circuit finds conspirators were about to complete robbery but for intervention of police. (380) Defendant was convicted of attempting and conspiring to commit a robbery. The Second Circuit held that but for the intervention of the police, the conspirators were about to complete the robbery, and thus did not deserve a § 2X1.1(b)(2) reduction. The fact that the police were aware of the scheme shortly after the conspiracy was hatched did not mean that the conspirators could not have been “about to complete” the crime. The guideline reduce punishment based on the conduct of the defendant, not on the probability that a conspiracy will be successful. There was abundant evidence that the conspirators were about to complete the robbery at the time the police intervened. They had obtained a detailed floor plan of the company to be robbed, planned the robbery for a date on which the company would be holding a large amount of cash, obtained two guns, several handcuffs and ski masks, driven to the offices of the company, parked their getaway vehicle nearby, passed through a gate at the front of the building, and approached the front door. U.S. v. Medina, 74 F.3d 413 (2d Cir. 1996).
2nd Circuit says Hobbs Act robbery conspiracies should be sentenced under § 2X1.1, not 2B3.1. (380) Following U.S. v. Skowronski, 968 F.2d 242 (2d Cir. 1992), the district court sentenced this Hobbs Act robbery conspiracy under § 2B3.1, rather than § 2X1.1. It also enhanced defendants’ sentences under § 2B3.1 (b)(6) for an intended loss of more than $50,000. The Second Circuit held that unlike § 2X1.1, § 2B3.1(b)(6), does not specify an adjustment for an intended but unrealized loss. Nevertheless, the court noted that a 1993 amendment to § 2E1.5 deleted a provision expressly referring Hobbs Act robberies to § 2B3.1. Since there is no longer a guideline provision directing Hobbs Act robbery conspiracies to § 2B3.1, such conspiracies are covered by the conspiracy guideline, § 2X1.1, and on remand the court should consider whether the defendants are eligible for a three level decrease under § 2X1.1(b)(2) for an uncompleted offense. However, if the resulting offense level is higher than it would be under § 2B3.1 (with no adjustment for intended loss), then to avoid ex post facto problems, defendants must be resentenced under § 2B3.1. U.S. v. Amato, 46 F.3d 1255 (2d Cir. 1995).
2nd Circuit says defendant not responsible for unforeseeable losses or losses after he withdrew from conspiracy. (380) Two conspirators fraudulently obtained equipment that enabled them to build a phony ATM machine. Defendant then joined the conspiracy, and assisted in installing the phony ATM at a mall. They used information from the phony ATM to create counterfeit ATM cards. From April 27 to May 18 they used the counterfeit cards to withdraw $107,000. Defendant claimed that on May 14, he told his conspirators that he no longer wished to be a part of the conspiracy. Nonetheless, the district court held him accountable under § 2F1.1 for the value of the stolen equipment ($100,000) plus the full $107,000 withdrawn with the counterfeit ATM cards. The Second Circuit remanded, holding that defendant was responsible for the stolen equipment only if the theft was in furtherance of defendant’s jointly undertaken criminal activity and was reasonably foreseeable. The district court did not make findings on these issues. In addition, if, as defendant claimed, he told the conspirators that he no longer wished to be a part of the conspiracy, then he withdrew from the conspiracy and was not responsible for losses that occurred after his withdrawal. U.S. v. Greenfield, 44 F.3d 1141 (2d Cir. 1995).
2nd Circuit says that perjury defendant was properly sentenced under accessory after the fact guideline. (380) Defendant testified before a grand jury that he had no knowledge of, or involvement with, a particular armed robbery. He was indicted for conspiring to commit armed robbery and numerous perjury counts. A jury acquitted him of the robbery conspiracy and two perjury counts, and convicted him of 12 remaining perjury counts. Defendant argued that the district court erroneously sentenced him under § 2X3.1, accessory after the fact, rather than § 2J1.3, perjury. The Second Circuit held that the district court properly applied § 2X3.1 because § 2J1.3(c) requires application of the accessory after the fact guideline if the perjury was “in respect to a criminal offense” and the resulting offense level is higher. Defendant’s acquittal of the robbery conspiracy charges did not make the cross reference inapplicable. The district court found that the crime of conspiracy to rob had unquestionably been committed, regardless of whether defendant was involved in it. Furthermore, some of defendant’s perjuries clearly related to that crime. U.S. v. Gay, 44 F.3d 93 (2d Cir. 1994).
2nd Circuit holds defendants accountable for stolen goods they intended to purchase. (170) Defendants were convicted of conspiracy to receive and resell stolen goods, primarily silver and gold. The district court included in its offense calculation under section 2B1.1(b)(1) the value of a planned purchase of 5600 pounds of silver from a government agent. The 2nd Circuit affirmed. Agreement for the purchase had been reached, and there were extensive negotiations concerning the method and timing of delivery. Defendants were not entitled to a reduction under § 2X1.1(b)(2) for a conspiracy where the substantive offense is not committed. The reduction is appropriate only where the arrest occurs well before any of the acts necessary for the substantive offense are completed. These defendants undoubtedly had completed all the acts they believed necessary to receive the goods. Finally, even if sentencing entrapment is a valid claim, that defense was inapplicable here, since defendants were predisposed to engage in further transactions. U.S. v. Rosa, 11 F.3d 315 (2nd Cir. 1993).
2nd Circuit finds 2X1.1 inapplicable to defendant convicted of Hobbs Act conspiracy. (380) Defendant was convicted of a Hobbs Act conspiracy, but the district court reduced his offense level by 3 points under 2X1.1. Relying on circuit precedent, the 2nd Circuit held that 2X1.1 is inapplicable to a defendant convicted of a Hobbs Act conspiracy. U.S. v. Friedman, 998 F.2d 53 (2nd Cir. 1993).
2nd Circuit applies same enhancements to conspirators as to those convicted of the substantive offense. (380) Defendant was convicted of conspiracy to counterfeit, and his base offense level was enhanced 15 levels because his offense involved more than $10 million. The 2nd Circuit rejected defendant’s argument that the Sentencing Commission acted irrationally or in excess of its power in applying the same enhancements to conspirators under 2X1.1(a) as would apply to those convicted of the target offense. U.S. v. Boothe, 994 F.2d 63 (2nd Cir. 1993).
2nd Circuit holds that defendant should have received reduction for uncompleted conspiracy. (380) Defendant was convicted of conspiracy to unlawfully sell unregistered shares of a corporation. Over 100,000 of the corporation’s 3.5 million shares were sold to the public, but the intended loss calculated under section 2F1.1 was based on the sale of all 3.5 million shares. The 2nd Circuit held that defendant should have received a reduction under section 2X1.1(b)(2), which applies to conspiracies unless the conspirators completed all the acts they believed necessary for the successful completion of the substantive offense. Even if the distribution scheme was stopped by apprehension or some other event beyond the conspirators’ control, the conspirators at that juncture had completed “all of the acts necessary for the successful completion of part, but not all, of the intended offense,” as described in note 4 to section 2X1.1. U.S. v. Sprecher, 988 F.2d 318 (2nd Cir. 1993).
2nd Circuit upholds application of specific offense characteristics for kidnapping despite acquittal. (380) Defendant was convicted of conspiracy to kidnap and acquitted of the substantive crime of kidnapping. The 2nd Circuit upheld use of the specific offense characteristics for kidnapping in guideline section 2A4.1. The provision applicable to inchoate offenses, section 2X1.1, states that the base offense level is the base offense level for the substantive offense, plus any adjustments from the guideline for any intended offense conduct that can be established with reasonably certainty. Thus, the district court used the kidnapping base offense level of 24, and applied enhancements for ransom and for committing the offense in furtherance of another crime. The fact that the jury acquitted defendant of the substantive crime of kidnapping did not establish that he withdrew from the conspiracy before the ransom demand or the facilitation of another crime. Moreover, the fact that he was acquitted did not mean he was entitled to the three level reduction under section 2X1.1(b). U.S. v. Patino, 962 F.2d 263 (2nd Cir. 1992).
2nd Circuit rules that conspiracy continued past effective date of guidelines. (380) Defendant and others imported a kilogram of heroin into the United States in April of 1987. However, they were unable to dispose of it despite several different attempts, the last of which occurred the summer of 1989. The 2nd Circuit affirmed the application of the guidelines to defendant’s conspiracy, ruling that the conspiracy continued past the November 1, 1987 effective date of the guidelines. The goal of the conspiracy was not merely to import the heroin but to sell it and distribute the proceeds. Thus, the conspiracy did not end in May, 1987 when the heroin was imported. U.S. v. Azeem, 946 F.2d 13 (2nd Cir. 1991).
2nd Circuit holds jury need not determine whether offense continued past effective date of guidelines. (380) The sentencing guidelines mandated a sentence of life without the possibility of parole for defendant’s continuing criminal enterprise conviction, but pre-guidelines law would have allowed the district court discretion to impose a prison term of 10 years to life. Because of the disparate sentences, defendant contended that in the absence of a specific jury determination that his offenses continued past the effective date of the guidelines, he must be sentenced under pre-guidelines law. The 2nd Circuit rejected this argument, holding that the determination of whether defendant’s offense continued past the effective date of the guidelines is a sentencing factor, and may be resolved by the district court using the preponderance of the evidence standard. The court also rejected defendant’s contention that a remand was necessary so that the district court could reconsider this issue in light of a subsequently discovered statement by a co-conspirator denying any dealing in narcotics after 1986. This statement was contradicted by substantial evidence presented at defendant’s trial and by the co-conspirator’s own subsequent testimony at the trial of others involved in defendant’s scheme. U.S. v. Underwood, 932 F.2d 1049 (2nd Cir. 1991).
2nd Circuit rejects higher burden of proof at sentencing for conspiracy despite recent guideline amendments. (380) Defendant argued that the district court should have applied a higher standard than preponderance of the evidence in determining the object of an uncompleted conspiracy. The 2nd Circuit rejected this contention. A recent amendment to the guidelines applying the higher reasonable doubt standard is applicable only to a special class of conspiracy cases. Under guideline § 1B1.2(d), a conviction of conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense. An application note states that this guideline section should apply, with respect to an object offense, only if the court, as trier of fact, would convict defendant of conspiring to commit that offense. A higher standard of proof applies because this guideline creates, in effect, a new count of conviction for sentencing purposes. No such situation was presented here. U.S. v. Macklin, 927 F.2d 1272 (2nd Cir. 1991).
2nd Circuit rules that 10-year term of supervised release exceeded statutory maximum. (380) Defendant was convicted of conspiracy to distribute cocaine. In sentencing defendant, the district court departed upward and imposed a 10-year term of supervised release. The 2nd Circuit reversed, finding that at the time defendant was sentenced, the only punishment for conspiracy was a fine or imprisonment or both, and the only statutory authority for a term of supervised release was 18 U.S.C. 3583(b), which provided a maximum term of three years for a Class C felony. In addition, the district court improperly failed to give advance warning of its intention to depart upward. U.S. v. Cardenas, 917 F.2d 683 (2nd Cir. 1990).
2nd Circuit holds guidelines apply to “straddle offenses” which continued after the effective date of the guidelines. (380) The 2nd Circuit held that the legislative history and purposes of the sentencing guidelines compelled the conclusion that a continuing offense conspiracy is “committed” after the effective date of the guidelines if there are overt acts which were committed after Nov. 1, 1987. U.S. v. Story, 891 F.2d 988 (2nd Cir. 1989).
3rd Circuit denies reduction where defendant would have completed fraud but for bank’s intervention. (380) Over a one-year period, defendant repeatedly opened accounts at various banks by depositing checks from closed accounts or accounts with insufficient funds, and then attempted to withdraw a portion of the deposited funds before the victim banks realized that the funds were not backed. The district court found that the intended loss under § 2F1.1 was the full face value of the deposited checks, rather than the amount he attempted to withdraw. Defendant argued that he was entitled to a reduction under § 2X1.1(b)(1) for an uncompleted attempt. The Third Circuit held that defendant was not entitled to the § 2X1.1 reduction, which does not apply if “the circumstances demonstrate that the defendant was about to complete [the offense] but for apprehension or interruption by some similar event beyond defendant’s control.” Here, the intervention of the banks prevented defendant from withdrawing the face amount of the checks. U.S. v. Geevers, 226 F.3d 186 (3d Cir. 2000).
3rd Circuit holds that defendant not entitled to reduction for incomplete offense. (380) Defendant deposited into a bank account a dishonored $240.65 third party check, and a stolen Treasury check in the amount of $66,021.94. The following day, defendant attempted to withdraw $24,900 from the account, but the bank refused to permit the withdrawal. The district court ruled that the loss was the entire amount fraudulently deposited into the account. The Third Circuit held that defendant was not entitled to a reduction under § 2X1.1 for an incomplete attempt. As to the $24,900 attempted withdrawal, defendant had “completed all the acts [he] believed necessary.” As to the balance of the fraudulently deposited funds, the circumstances demonstrated that he “was about to complete all such acts” and was unsuccessful only because the bank was fortunate enough to suspect fraudulent activity such that defendant was subsequently arrested, and not because of any event within defendant’s control. U.S. v. Torres, 209 F.3d 308 (3d Cir. 2000).
3rd Circuit permits sentencing court to find objects of multi‑object conspiracy. (380) Guideline section 1B1.2(d) and note 5 requires a sentencing court to determine beyond a reasonable doubt the objects of a multi‑object conspiracy after a jury returns a general guilty verdict on a conspiracy charge which does not specify the objectives of the conspiracy. The Third Circuit rejected defendant’s claim that this provision violated his Sixth Amendment right to a jury trial. Section 1B1.2(d) is a “sentencing consideration.” Under Supreme Court precedent it is permissible to treat the object of a multi‑object conspiracy indictment as a sentencing factor rather than as an element of the crime. The provision also does not violate due process. By determining the objects of the conspiracy beyond a reasonable doubt, the sentencing court will meet whatever procedural standards might be required. U.S. v. Conley, 92 F.3d 157 (3d Cir. 1996).
3rd Circuit finds no due process violation in application of guidelines to “straddle” crime. (380) Although the majority of defendant’s racketeering activities occurred prior to the November 1, 1987, the guidelines were applied to his RICO violation based on his obstruction of justice acts which took place after that date. Defendant contended that he was denied substantive due process because the guidelines permitted the prosecution to convert what was in actuality a pre-guidelines case into a guidelines case by charging him with the two obstruction of justice racketeering acts. The 3rd Circuit rejected this argument, finding that as long as there was no prosecutorial misconduct or vindictiveness, it was irrelevant that the prosecution could have kept the RICO charge from falling under the guidelines by failing to include defendant’s obstruction of justice acts. The decision whether or not to prosecute on certain charges generally rests entirely on a prosecutor’s discretion. Defendant had constructive notice of the guidelines, and continued to violate RICO after the guidelines became effective. U.S. v. Moscony, 927 F.2d 742 (3rd Cir. 1991).
3rd Circuit applies guidelines to defendant because he remained a member of the conspiracy after the effective date. (380) Defendant argued that he did nothing to further the conspiracy after late 1986 and therefore was not a member of the conspiracy when the guidelines became effective on November 1, 1987. The 3rd Circuit rejected the argument, ruling that under the law of conspiracy, a coconspirator remains a member of the conspiracy until he or she objectively withdraws from the conspiracy. Since there was no evidence that defendant had affirmatively renounced the conspiracy prior to November 1, 1987, the guidelines were properly applied to him. U.S. v. Rosa, (Appeals of Kostruck, Romano and Perrino), 891 F.2d 1063 (3rd Cir. 1989).
4th Circuit rejects enhancement based on harbored fugitive’s criminal record. (380) Defendant pled guilty to harboring a fugitive, 18 U.S.C. § 1071. Section 2X3.1, the accessory-after-the-fact guideline, states that, subject to certain limitations, the base offense level is “6 levels lower than the offense level for the underlying offense.” The underlying offense here was the unlawful possession of a weapon by Jordan, the fugitive who defendant harbored. The guidelines establish a base offense level of 14 for a basic charge of possession of a firearm by a prohibited person. See USSG § 2K2.1(a)(6). However, the offense level increases for defendants with certain prior felony convictions. In sentencing defendant, the district court took Jordan’s enhanced base offense level of 24 (based on his prior convictions) and reduced it by six levels, resulting in an offense level of 18. The Fourth Circuit reversed, ruling that defendant’s offense level could not be enhanced based on the fugitive’s prior criminal record. The underlying offense here was a violation of 18 U.S.C. § 922(g), which proscribes the possession of a firearm by a prohibited person. The § 922(g) offense takes into consideration the criminal history of the offender only to the extent that the criminal history renders the offender a prohibited person; the statute is otherwise unconcerned with the criminal history of the offender. U.S. v. Godwin, 253 F.3d 784 (4th Cir. 2001).
4th Circuit remands where sentences exceeded maximum for least-punished object of conspiracy. (380) The jury returned a general verdict convicting defendants of a conspiracy involving “heroin, or cocaine, or cocaine base or marijuana.” Defendant argued that because the jury’s verdict was ambiguous as to which drug was involved, his sentence could not exceed the statutory maximum for the drug (marijuana) carrying the lowest statutory penalty. The Fourth Circuit agreed that under Edwards v. United States, 523 U.S. 511 (1998), the district court could not impose a sentence in excess of the statutory maximum for the least-punished object on which the conspiracy conviction could have been based. Under § 841, the applicable statutory maximum is based on the quantity that can be attributed to the defendant. The court made a drug quantity finding, but did not determine whether its sentences exceeded the statutory maximum for the least-punished conspiracy. Three defendants received sentences that exceeded the applicable maximums, and thus violated Edwards. On remand, the government may choose between resentencing these defendants for a marijuana-only conspiracy, or retrying them on the conspiracy count. U.S. v. Rhynes, 196 F.3d 207 (4th Cir. 1999), vacated in part on other grounds, U.S. v. Rhynes, 218 F.3d 310 (4th Cir. 2000) (en banc).
4th Circuit says fraud was completed by depositing worthless checks in bank account. (380) Defendant wrote 47 bad checks totaling $69,000 and deposited them in his girlfriend’s bank account. He withdrew about $11,000 from the bank before they discovered the scheme. He argued that for sentencing purposes he did not complete the fraud since he only withdrew about $11,000 of the $69,000 that he deposited and therefore he should have been sentenced under § 2X1.1. The Fourth Circuit disagreed, finding defendant failed to distinguish between completing a fraud and inflicting all the loss that one intended to inflict by means of that fraud. A loss can be complete without ultimately inflicting the full, intended loss on the victim. Here the $69,000 intended loss was attributable to a completed fraud. Defendant was convicted of fraud for depositing worthless checks in the total amount of $69,000, not for withdrawing funds from the account. While $11,000 was the actual loss, $69,000 was the intended loss fully attributable to defendant. U.S. v. Williams, 81 F.3d 1321 (4th Cir. 1996).
4th Circuit says applying amendment that overruled circuit precedent would violate ex post facto clause. (380) Defendant was convicted of perjury based on two false declarations he had made to the grand jury regarding his use of marijuana and his involvement with the leader of a marijuana distribution and cultivation ring. Section 2J1.3(c) directs a court to apply § 2X3.1 (Accessory After the Fact) if the offense involved perjury “in respect to a criminal offense.” However, in U.S. v. Pierson, 946 F.2d 1044 (4th Cir. 1991), the court limited § 2X3.1 to false declarations for the purpose of assisting other persons. After Pierson was published, the commentary to § 2J1.2 was amended to expand the § 2X3.1 cross reference to defendants who perjure themselves to protect themselves, so that Pierson was no longer good law. Nevertheless, the Fourth Circuit held that applying the amendment, which went into effect after defendant committed his perjury, would violate the ex post facto clause. Thus Pierson remains circuit precedent for defendants who committed their perjury offense before November 1, 1991. U.S. v. Heater, 63 F.3d 311 (4th Cir. 1995).
4th Circuit says aider and abettor is subject to same mandatory minimum as principal. (380) A person convicted of possession with intent to distribute more than five grams of cocaine base is subject to a mandatory minimum sentence of five years under 21 U.S.C. § 841. Defendant pled guilty to aiding and abetting a violation § 841(a)(1). The Fourth Circuit held that a person convicted of aiding and abetting a § 841 offense is subject to the same mandatory minimum as the principal. The federal aiding and abetting statute, 18 U.S.C. § 2(a), and guideline § 2X2.1 require aiders and abettors to be sentenced as if a principal. Together they indicate that Congress intended to treat principals and aiders and abettors equally. It was not necessary to decide whether a defendant convicted of aiding and abetting a continuing criminal enterprise under § 848 must be sentenced to the mandatory minimum imposed on principals. The federal kingpin statute is different because it is designed to punish those who supervise others. U.S. v. Pierson, 53 F.3d 62 (4th Cir. 1995).
4th Circuit finds bank fraud uncompleted so that loss should be calculated under § 2X1.1. (380) Defendants’ company executed a master loan agreement under which the lender issued separate loans to finance new contracts entered into by the company. Payments under the contracts were to be made jointly to the company and the lender. Defendants were convicted of bank fraud after diverting funds due to the lender. The 4th Circuit held that this was not a completed fraud, and therefore note 9 to § 2F1.1 directed the loss to be calculated under § 2X1.1. The only reason that the amounts diverted by defendants were not equal to the total amounts of the contracts was that defendants were caught before they could divert all of the money. Thus, this case involved a smaller completed fraud within a larger uncompleted fraud. Under note 4 to § 2X1.1, where there is a completed fraud included within an incomplete fraud, the offense level is the greater of actual completed fraud, or the intended fraud minus three levels. Actual loss is the amount of the diverted checks. Loss was not reduced by the amount of pledged collateral, since the collateral (the proceeds on the contracts) was the very thing stolen by defendants. U.S. v. Mancuso, 42 F.3d 836 (4th Cir. 1994).
4th Circuit finds defendant substantially completed money laundering attempt. (380) Defendant pled guilty to attempted money laundering. The 4th Circuit held he was not entitled to a reduction under § 2X1.1(b)(1) because his attempt to launder money was substantially completed. Although he may have engaged in some “outlandish puffery” to establish his credentials with the government informants and undercover agents, the district court could conclude that defendant was capable of fulfilling his role in the money laundering scheme. At least one of the three schemes he described to agents was well formulated. Defendant’s acceptance of the suitcase of money from the agents was the first step of his planned delivery of the purported drug money to his associate, through whose accounts it would be laundered. U.S. v. Barton, 32 F.3d 61 (4th Cir. 1994).
4th Circuit rejects accessory after the fact cross-reference where defendant lied to protect himself. (380) Defendant was convicted of perjury after lying about an official’s involvement in a drug sting in which defendant served as an undercover agent. Section 2J1.3(c) provides that if the offense involved perjury in respect to a criminal offense, a court is to apply section 2X3.1 (Accessory After the Fact) in respect to that offense, if it would result in a higher offense level. The district court refused to apply the cross-reference, believing that U.S. v. Pierson, 946 F.2d 1044 (4th Cir. 1991) prohibited it. The 4th Circuit reversed, holding that Pierson is limited to cases in which a criminal defendant lies to protect himself from criminal punishment for the offense addressed by a false statement. Here, defendant intended through his lies to exculpate the official from a charge of attempted possession of cocaine. Because defendant did not intend to exculpate himself from that or any other charge, the accessory cross-reference should have been applied. U.S. v. Jamison, 996 F.2d 698 (4th Cir. 1993).
4th Circuit applies accessory after the fact guideline to attempt to free prisoner from jail. (380) Defendants were convicted of obstruction of justice and related counts for their foiled plan to free a federal prisoner from a county jail. Section 2J1.2(c)(1) provides for the application of section 2X3.1 (Accessory After the Fact) under certain circumstances if the offense involved obstructing the investigation or prosecution of a criminal offense. The 4th Circuit affirmed the application of section 2X3.1 to defendants through section 2J1.2’s cross reference, even though defendants were convicted of obstruction of justice on an “endeavoring” theory (some effort, although less than an attempt). The word “obstructing” means both actual obstruction and endeavoring to obstruct. U.S. v. Aragon, 983 F.2d 1306 (4th Cir. 1993).
4th Circuit rules attempted murder guideline should apply to attempt to blow up husband. (380) Defendant pled guilty to four firearms offenses as a result of two instances where she attempted to blow up her ex-husband. Following cross-references in the firearms guidelines, the court applied guideline section 2X1.1. Relying on section 2S1.1(a), the district court found that because defendant intended to kill her ex-husband, the “object offense” was first degree murder. Defendant was sentenced accordingly, although the court departed downward from the offense level for first degree murder to the level for second degree murder. The 4th Circuit reversed, ruling that the district court should have applied the attempted murder guideline, section 2A2.1. Once the district court applied the attempt guideline (section 2X1.1), it then should have determined whether a specific guideline covered defendant’s attempted offense, i.e., the guideline for attempted murder. U.S. v. Dickerson, 956 F.2d 46 (4th Cir. 1992).
4th Circuit affirms that conspiracy continued past effective date of guidelines. (380) Defendants were involved in a conspiracy to fraudulently obtain HUD-insured mortgages, which they used to purchase property with a very low down-payment. Although the mortgages were obtained in 1984 and 1985, the district court determined that the conspiracy continued past November 1, 1987, the effective date of the guidelines, and thus sentenced defendants under the guidelines. Defendants argued that since the object of the conspiracy was to obtain the HUD-insured mortgages, once the mortgages were obtained this objective was achieved and the conspiracy ended. The 4th Circuit rejected this contention, finding there were other objectives of the conspiracy. First, one of the objects of the conspiracy was to make money by eventually reselling the property. One conspirator proposed that if they held on to the property for three years, they would make a 40 percent return on the resale. This showed that the conspiratorial agreement contemplated that the agreement would last for at least three years. Second, a partnership formed by the conspirators continued to make mortgage payments well past November 1, 1987. This partnership was intimately involved in the fraudulent scheme. U.S. v. Barsanti, 943 F.2d 428 (4th Cir. 1991).
4th Circuit upholds finding that defendant’s crimes did not straddle effective date of guidelines. (380) Defendant contended that his crimes straddled the effective date of the guidelines, and therefore he should have been sentenced under the guidelines. The 4th Circuit found no evidence to support the contention that defendant committed a straddle crime. Defendant pointed to the indictment, which charged that the conspiracy continued until the present time. The ending date stated in an indictment does not govern whether a crime is a straddle crime, since these dates are tentative and subject to change as information is revealed during the course of legal proceedings. The only evidence which supported defendant’s claim was the testimony of a witness who misidentified a fund-raising brochure he received in 1988 as being from defendant’s organization. U.S. v. Bakker, 925 F.2d 728 (4th Cir. 1991).
4th Circuit uses conspiracy guideline where defendant conspired to kidnap, torture and kill child for “snuff” film. (380) Defendant was convicted of conspiracy to kidnap in connection with his plot to kidnap, sexually abuse, torture and finally kill a 12-year old boy for a “sex-snuff” film. Defendant received a 400-month sentence, and complained that although he was convicted of conspiracy to kidnap, he was sentenced as though he had committed first-degree murder. The 4th Circuit affirmed the sentence. The court correctly applied the conspiracy guideline, § 2X1.1, which references the guideline for the underlying offense — in this case the kidnapping guideline, § 2A4.1. Under § 2A4.1(5), since the kidnapping was intended to facilitate other offenses, sexual abuse and murder, the court was directed to apply the guideline for that offense. This resulted in an offense level of 43, which was reduced to 40 under § 2X1.1, since the intended crime was not completed. U.S. v. DePew, 932 F.2d 324 (4th Cir. 1991).
4th Circuit reaffirms that applying guidelines to “straddle crime” does not violate Ex Post Facto Clause. (380) Defendant was found guilty of a drug conspiracy that continued from 1981 until March 1988. He was sentenced under the guidelines. Without discussion, the 4th Circuit rejected defendant’s argument that applying the guidelines to his crime violated the Ex Post Facto Clause even though it included punishment for conduct prior to November 1, 1987, the effective date of the guidelines. U.S. v. Deigert, 916 F.2d 916 (4th Cir. 1990).
4th Circuit holds that sentencing guidelines apply to a “straddle” conspiracy. (380) Defendant contended that because his conspiracy began prior to November 1, 1987, it violated the ex post facto clause to apply the sentencing guidelines to his offense. The 4th Circuit, following its opinion in U.S. v. Sheffer, 896 F.2d 842 (4th Cir. 1990), found this claim had no merit. U.S. v. Engleman, 916 F.2d 182 (4th Cir. 1990).
4th Circuit upholds offense level on conspiracy that began before effective date of guidelines. (380) Defendant engaged in a conspiracy that began before November 1, 1987, the effective date of the guidelines and continued past that date. At sentencing, the judge considered activity before November 1, 1987 in setting the base offense level. The 8th Circuit rejected defendant’s contention that this violated the ex post facto clause. “Conspiracy is a continuing offense, and each conspirator is charged with participation for the life of the conspiracy. In this case, the conspiracy continued after the effective date of the guidelines, and thus the guidelines are applicable in this case.” U.S. v. Meitinger, 901 F.2d 27 (4th Cir. 1990).
4th Circuit holds ex post facto clause is not violated by applying guidelines to offense conspiracies which began before effective date but continued thereafter, and aggregating quantities of drugs throughout course of conspiracy. (380) Relying on decisions from other circuits, the 4th Circuit held that the ex post facto clause is not offended by (1) the application of the guidelines to conspiracies which began before, but continued after the Nov. 1, 1987 date upon which the guidelines became effective; and (2) the aggregation of quantities of drugs which were the subject of the conspiracy prior to the Nov. 1, 1987 with quantities distributed after that date. To exclude part of the aggregate total weight would be inconsistent with the overall quantitative approach of the narcotics guidelines. U.S. v. Sheffer, 896 F.2d 842 (4th Cir. 1990).
4th Circuit holds district court may impose consecutive sentence not permissible under guidelines since one count was pre-guidelines. (380) The district court sentenced defendants who committed offenses between September 1986 and April 1988 under the “prior law” for substantive offenses and under the sentencing guidelines “for the conspiracy.” The conspiracy date overlapped the effective date of the guidelines and on appeal defendants argued the district court erred in directing the conspiracy sentence be served consecutively to the sentences for the substantive counts. The 4th Circuit held that although guideline sections 3D1.2 and 5G1.2 would require the sentence to run concurrently since the substantive act was the sole object of the conspiracy, only the conspiracy count was subject to the guidelines. The district court has unfettered discretion to impose concurrent or consecutive sentences on pre-guideline counts and nothing in the Guideline or Sentencing Reform Act impedes that discretion. Although the intent of the guidelines and Sentencing Act would be served by concurrent sentences, the district court’s use of its authority was not erroneous. U.S. v. Watford, 894 F.2d 665 (4th Cir. 1990).
4th Circuit finds base offense level was improper as to amount of marijuana possessed but was proper under object of conspiracy provisions. (380) A drug conspirator’s base offense level was set at 28 after the District Court found he had constructively possessed greater than 400 kilograms of marijuana. However, he had actually possessed between 100 and 400 kilograms. The difference in the base offense level between the two amounts was two points under the drug quantity tables of guideline § 2D1.1(3). The 4th Circuit stated that the base offense level of 28 was nevertheless proper under Application Note 1 to guideline § 2D1.4, because the defendants contemplated that an amount over 400 kilograms was to be distributed. U.S. v. Roberts, 881 F.2d 95 (4th Cir. 1989).
5th Circuit affirms loss calculation in Hobbs Act robbery case. (380) Defendant was convicted of Hobbs Act charges resulting from his involvement in a conspiracy to rob an armored car. He challenged a three-point enhancement for a loss greater than $250,000, arguing for the first time on appeal that § 2B3.1(b)(7)(D) applies only to actual loss and not to intended loss. The Fifth Circuit agreed that § 2B3.1(b)(7)(D), a provision dealing with the completed offense of robbery, applies only to actual loss. However, this error did not affect defendant’s substantial rights, because § 2X1.1, which covers conspiracy convictions, including Hobbs Act robbery conspiracies, requires an enhancement for intended loss that incorporates the enhancements for actual loss contained in § 2B3.1(b)(7). Thus, a correct application of § 2X1.1 would have yielded the same result as the mistaken direct application of § 2B3.1(b)(7)(D). U.S. v. Stephens, 717 F.3d 440 (5th Cir. 2013).
5th Circuit holds that court properly applied § 2X1.1 to Hobbs Act robbery conspiracy. (380) Defendant was convicted for conspiring to interfere with commerce by robbery, in violation of the Hobbs Act, 18 U.S.C. § 1951(a). The Fifth Circuit held that the district court correctly applied § 2X1.1, covering conspiracies, rather than § 2B3.1, a robbery guideline. This circuit has previously held that § 2X1.1 applies to extortion conspiracies under the Hobbs Act. Other circuits have held that § 2X1.1 applies to Hobbs Act robbery conspiracies. Although the Eleventh Circuit has declined to apply § 2X1.1 to conspiracy to commit robbery under the Hobbs Act, it did so partly relying on a Second Circuit decision that was later overruled. The Eleventh Circuit’s view is an outlier. U.S. v. Gonzales, 642 F.3d 5 (5th Cir. 2011).
5th Circuit says defendants who obstruct a drug case need not know drug quantities. (380) Defendant accidentally learned about a DEA investigation into cocaine trafficking. He contacted Cordier, who he knew was friends with the target of the investigation. Cordier warned his friend that the government was investigating him and tapping his phone. Defendant pled guilty to conspiracy to obstruct justice, and Cordier pled guilty to conspiracy and accessory after the fact. The obstruction of justice guideline, § 2J1.2, says that when a defendant obstructs the investigation of a criminal offense, the court should apply § 2X3 (Accessory After the Fact) in respect to that criminal offense. The Fifth Circuit held that the district court erroneously calculated defendants’ base offense levels by requiring that they know or reasonably foresee the drug quantities involved in the underlying drug conspiracy. Note 1 to § 2X3.1 instructs courts to apply the base offense level plus any applicable specific offense characteristics that were known or reasonably should have been known by the defendant. For drug offenses, drug quantity is not a specific offense characteristic. Thus, defendants were not required to know or to reasonably foresee the drug quantities involved in the underlying drug offense. U.S. v. Kimbrough, 536 F.3d 463 (5th Cir. 2008).
5th Circuit holds that factual impossibility barred application of cross-reference for “another offense.” (380) Defendant sold a bomb to an undercover agent who told defendant she wanted to use the bomb to kill her ex-husband. Explosives experts confirmed that the bomb would have worked. Section 2K1.3(c)(1) provides that if the defendant possessed or transferred any explosive material with knowledge or intent that it would be used in connection with another offense, the court should apply § 2X1.1 (Attempt, Solicitation, Conspiracy) in respect to that other offense if it would result in a greater offense level. The government argued that § 2A1.2, the guideline for attempted murder, should be applied because defendant knew that the bomb was going to be used to commit murder. The district court refused to apply the cross-reference, ruling that because this was a sting operation, there was no commission or attempted commission of another offense. The Fifth Circuit reversed, holding that the court legally erred in determining that factual impossibility rendered the application of the guideline inappropriate. Factual impossibility is not a defense to a charge of attempt. U.S. v. Rankin, 487 F.3d 229 (5th Cir. 2007).
5th Circuit holds that defendant was not entitled to attempt reduction because apprehension prevented completion of offense. (380) Defendant pled guilty to exporting ammunition to Mexico without a license or authorization. 22 U.S.C. §§ 2278(b)(2) and (c). He argued that he was entitled to a three-level reduction under U.S.S.G. § 2X1.1 because he only attempted to carry out the prohibited act. The Fifth Circuit held that defendant was not entitled to the reduction because the sole reason defendant was not able to export the ammunition was due to his apprehension by government agents at the border. His voluntary confession did not cause his apprehension or interruption of the event because agents had been monitoring his purchases that day. Thus, under § 2X1.1(b)(1), the three-level reduction was not available. U.S. v. Castro-Trevino, 464 F.3d 536 (5th Cir. 2006).
5th Circuit says court erred in refusing to consider availability of reduction for uncompleted offense. (380) Defendant was arrested as part of a reverse-sting operation in which he agreed to launder a fictitious 12 million dollars in cash that was represented to him as the proceeds of illegal drug smuggling. He was convicted of conspiring to launder monetary instruments, in violation of 18 U.S.C. §§ 1956(h) and 1956(a)(3)(B), (C). The district court declined to consider granting defendant a requested three-level reduction under § 2X1.1(b), reasoning that § 2X1.1 did not apply to offenses under § 1956. The Fifth Circuit held that the district court erred in not considering the availability of the § 2X1.1(b) reduction. Sections 1B1.2(a) and 2X1.1 clearly direct that § 2X1.1 shall be applied to attempts, conspiracies, and solicitation unless the specific attempt, conspiracy, or solicitation is expressly covered by the guideline for the substantive offense. The jury did not, as the government argued, find defendant guilty of the completed offense of money laundering. Section 2S1.1 does not expressly cover attempts and conspiracies. U.S. v. Ogle, 328 F.3d 182 (5th Cir. 2003).
5th Circuit holds that § 2X1.1’s “reasonable certainty” standard applies to intended not actual conduct. (380) Defendants were convicted of conspiring to induce illegal immigrants to enter the U.S. Guideline § 2X1.1 directs sentencing courts to use the base offense level from the guideline for the applicable offense and to apply “any adjustment from [that] guideline for an intended offense conduct that can be established with reasonable certainty.” The district court increased defendant’s offense level by six under § 2L1.1(b)(2) for an offense involving between 25-99 aliens. Defendants argued that the government did not establish “with reasonable certainty” that more than 25 aliens were involved in his offense. The Fifth Circuit held that the reasonable certainty standard only applies to intended conduct, not actual conduct. This makes sense because “unless other specified,” the Guidelines’ definition of relevant conduct is limited to conduct that has occurred. Here, the district court based the § 2L1.1 increase on its finding that the conspiracy involved the actual smuggling, not the intended smuggling, of 25 or more immigrants. U.S. v. Cabrera, 288 F.3d 163 (5th Cir. 2002).
5th Circuit rules error in using guideline for underlying extortion, rather than conspiracy, was harmless. (380) Defendant, a state court prosecutor, was convicted of conspiring to commit extortion under the Hobbs Act by taking money to fix drug cases. He argued that the court incorrectly applied USSG § 2C1.1, the guideline applicable to bribery and extortion, rather than § 2X1.1, which covers attempts, conspiracies and solicitation. The Fifth Circuit agreed that the court applied the wrong guideline, but found the error harmless. Under § 2X1.1(a), the offense level for conspiracy is the same as the base offense level of the substantive offense, “plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty.” Thus, there is no difference between guideline calculations for conspiracy to extort and extortion when the evidence accepted by the sentencing court shows that the conspiracy’s objectives were actually completed. Here the district court found that the bribes alleged by the government were in fact completed. The panel also affirmed a § 2C1.1(b)(2)(B) increase for an offense involving a payment to influence an official holding a high-level decision-making position. The fact that defendant received, rather than made, the corrupt payment was irrelevant. U.S. v. Villafranca, 260 F.3d 374 (5th Cir. 2001).
5th Circuit rejects § 2X1.1(b)(1) reduction where police prevented defendant from completing fraud. (380) Defendant was arrested attempting to negotiate a $50,000 certificate of deposit in the name of an elderly woman for whom defendant was working as a companion. The Fifth Circuit held that defendant was not entitled to a three-level reduction under § 2X1.1(b)(1) for an uncompleted attempt simply because she had not presented the endorsed CD for payment at the time of her arrest. The fact that police (posing as bank officers) prevented her from presenting the fraudulently endorsed instrument did not entitle defendant to a reduction. At the time of her arrest defendant had performed all required acts necessary to access the face amount of the fraudulently endorsed CD and was in a position to do so immediately. Defendant was convicted of a completed offense. No uncompleted offense was added to determine her base offense level. U.S. v. Oates, 122 F.3d 222 (5th Cir. 1997).
5th Circuit finds defendant had completed all necessary steps to launder $10 million. (380) Defendant worked for a financial consulting firm hired to assist a church obtain funding. He and others were caught in a government sting after arranging for the church to launder $10 million in purported drug proceeds. The district court denied a § 2X1.1(b)(2) reduction, finding that defendant completed all the acts he believed necessary to successfully launder the $10 million. On appeal, the Fifth Circuit affirmed. Defendant and the church’s minister had previously laundered $350,000 in three tests. They had no difficulty laundering this amount, and always completed their task within the time limit set by the undercover agents. On undercover tapes, defendant and the minister detailed their plans to launder the money over four years, which included mixing the cash with offerings at the church. Although defendant argued that they had not implemented any of these plans yet (such as creating a Cayman Islands corporation), there was no clear error. U.S. v. Knox, 112 F.3d 802 (5th Cir. 1997), reheard en banc as to co-defendant, U.S. v. Brace, 145 F.3d 247 (5th Cir. 1998).
5th Circuit upholds sentence for more serious conspiracy based on court’s implicit finding. (380) Defendants owned the oil and gas rights to a tract of land. To prevent the land from reverting to the state for lack of production, defendants submitted false documents to the state and tried to buy the favor of its chief clerk. The indictment alleged a conspiracy with two objects: to obtain money by fraud, and to deprive Texas citizens of their right to the honest services of a state official. The jury convicted defendants by a general verdict. Defendants claimed that because it was unclear under which theory the jury convicted them, the district court erred by sentencing them as if they had been convicted of conspiring to commit a fraud involving public corruption. The Fifth Circuit upheld the sentence because the district court viewed the conspiracy as involving a deprivation of the public’s right to the honest services of a state government official. The court’s 8-level increase under § 2C1.7(b)(1) (B) for involvement of a high-level public official presupposed that defendants were guilty of conspiring to commit a public corruption fraud. U.S. v. Manges, 110 F.3d 1162 (5th Cir. 1997).
5th Circuit does not require conviction on underlying offense to use perjury cross‑reference. (380) At an initial hearing on drug charges, defendant lied about his identity to conceal his criminal record. He later pled guilty to perjury in exchange for dismissal of the drug charges. Section 2J1.3(c)(1) provides that if the offense involved perjury “in respect to a criminal offense,” the court should apply § 2X3.1. Section 2X3.1 provides for an offense level six levels lower than the offense level for the underlying offense, or 26. The application notes define “underlying offense” as the offense to which the defendant is convicted of being an accessory. The district court refused to apply the cross reference, but the Fifth Circuit held that defendant should have been sentenced under § 2X3.1 even though not convicted of the underlying offense. U.S. v. Martinez, 106 F.3d 620 (5th Cir. 1997).
5th Circuit applies money laundering guideline to multiple-object conspiracy. (380) Defendant pled guilty to conspiracy to commit fraud, money laundering, and mail fraud. The district court refused to apply the money laundering guideline, § 2S1.1, because defendant had not been charged with a substantive count of money laundering. The Fifth Circuit held that the court should have applied the money laundering guideline. Section 1B1.2(d) requires a multiple-object conspiracy to be treated as if the defendant were convicted of a separate count for each object of the conspiracy. Note 5 provides that where, as here, the plea does not establish which offense was the object of the conspiracy, the court should apply the guideline for an object offense only if it would have convicted defendant of conspiring to commit that object offense. However, this analysis is not necessary if the object offenses specified in the conspiracy count would be “grouped” under § 3D1.2(d). The conspiracy to commit mail fraud, the use of a fictitious name and money laundering are to be grouped together because their offense levels are determined largely on the total amount of harm or loss. Section 3D1.3 directs the court to apply the highest offense level of the counts in the group, in this case, money laundering. Therefore, the district court erred in using the fraud guideline. U.S. v. Coscarelli, 105 F.3d 984 (5th Cir. 1997), reinstated on rehearing en banc, 149 F.3d 342 (5th Cir. 1998).
5th Circuit applies maximum base offense level for accessory after the fact. (380) Defendant was convicted of being an accessory after the fact to a bank robbery that culminated in the murder of a woman who happened to be at the robbers’ rendezvous point. The accessory after the fact guideline, § 2X3.1(a), provides for a base offense level of 6 levels below the base offense level for the underlying offense, with a maximum base offense level of 30. Section 2B3.1(c) of the robbery guideline provides that if a victim was murdered, a court should apply § 2A1.1, the murder guideline. The district court applied the murder guideline, which carries a base offense level of 43. Because the maximum base offense level for accessory after the fact is 30, the court set defendant’s base offense level at 30. Defendant complained that he was wrongfully sentenced for a murder in which he did not participate. The Fifth Circuit held that defendant was properly assigned the maximum base offense level. The only rational way to punish an accessory after the fact is to link the sentence to the underlying crime. Defendant was not sentenced for the murder itself; he was sentenced for trying to prevent the apprehension of the conspirators responsible for the murder. If defendant had truly been sentenced for the murder, his base offense level would have been 43. U.S. v. Harris, 104 F.3d 1465 (5th Cir. 1997).
5th Circuit says defendant convicted of misprision of felony not entitled to role reduction. (380) Defendant and an associate were found in possession of a substantial quantity of crack cocaine. He pled guilty to misprision of a felony. Defendant argued that he was entitled to a § 3B1.2 reduction for being a minimal participant in the underlying felony. The Fifth Circuit held that because § 2X4.1 presupposes a defendant’s lack of involvement in the underlying offense, any adjustment based on reduced culpability must be based on a mitigating role in the misprision offense, not the underlying offense. Section 2X4.1 assumes that the misprision defendant is not guilty of the underlying offense. U.S. v. Godbolt, 54 F.3d 232 (5th Cir. 1995).
5th Circuit finds underlying offense for harboring fugitive was drugs, not failure to appear. (380) Defendant was convicted of harboring her fugitive son, who had failed to appear for judicial proceedings on a drug offense. The Fifth Circuit held that her “underlying offense” under § 2X3.1 was her son’s drug offense and not his failure to appear for judicial proceedings. The fugitive’s primary goal was to flee punishment for the drug offense, not for the failure to appear offense. U.S. v. Dilworth, 50 F.3d 318 (5th Cir. 1995).
5th Circuit includes in loss attorneys’ fees incurred by bank defending defendant’s lawsuit. (380) In order to obtain a bank loan, defendant pledged as collateral a CD equal to 10 percent of the loan balance. When the loan went into default, defendant filed a civil suit against the bank to recover the CD, claiming he believed the CD was merely a cash deposit without a pledge. The 5th Circuit upheld a loss calculation under section 2F1.1 that included the intended loss of the CD and the attorneys’ fees incurred by the bank in defending defendant’s lawsuit. The court rejected defendant’s claim that the civil suit was not directly related to the charged offense. Defendant’s scheme was to get his pledged document back from the bank in the event that the loan went into default. Filing a civil suit was part of that scheme. Defendant was not entitled to a reduction under section 2X1.1 for a partially completed offense. Although his scheme failed, he completed all of the necessary acts when he filed suit against the bank. U.S. v. Blackburn, 9 F.3d 353 (5th Cir. 1993).
5th Circuit holds that relevant conduct does not limit application of §2K2.1(c)(1) cross-reference. (380) Defendant was convicted of possession of a firearm by a felon. Section 2K2.1(c)(1) provides, through a cross-reference to §2X1.1, that if the firearm was used or possessed in connection with another offense, defendant is to be sentenced under the guideline for that offense. Accordingly, the court sentenced defendant under §2A4.1, the kidnapping guideline. He argued that this was not proper since the kidnapping was not conduct relevant to the offense of conviction, i.e. his receipt of the gun. The 5th Circuit agreed, but held that the relevant conduct section did not limit the section 2K2.1(c)(1) cross-reference. The reference to “another offense” embraces all illegal conduct performed or intended by defendant involving the firearm in the charged offense. U.S. v. Gonzales, 996 F.2d 88 (5th Cir. 1993).
5th Circuit upholds sentence based on more serious statutory violation. (380) Defendant was convicted of a count alleging a conspiracy to violate two statutes: 21 U.S.C. sections 841(a)(1) and 856(a)(2). The jury’s general guilty verdict did not specify whether defendant conspired to violate section 841, section 856, or both. The 2nd Circuit affirmed that defendant could be sentenced under the guideline applicable to the more severe section 841 violation. Guideline section 1B1.2(d) provides that a conviction on a count charging conspiracy to commit more than one offense is treated as if the defendant had been convicted of a separate conspiracy count for each offense. Note 6 to section 1B1.2(d) states that where the jury’s verdict fails to specify which of the charged offenses were the objects of the conspiracy, the defendant may be sentenced for the object offenses for which the court, were it sitting as trier of fact, would convict the defendant. U.S. v. Cooper, 966 F.2d 936 (5th Cir. 1992).
5th Circuit upholds application of section 2X3.1(a) to perjury offense related to murder. (380) Defendant was convicted of perjury and misprision of a felony for lying to a grand jury about his meeting with an individual who later murdered a federal witness. Defendant contended that the district court erred in sentencing him under guideline section 2X3.1 because even though his perjury related to a murder, he was not implicated in the murder as a principal or accessory after the fact. The 5th Circuit affirmed the application of section 2X3.1 to the offenses. Guideline section 2J1.3(c)(1) states that if the offense involved perjury or subornation of perjury in respect to a criminal offense, apply section 2X3.1 (Accessory After the Fact) in respect to that criminal offense. Section 2J1.3(c)(1) does not require that the defendant actually be convicted of the underlying offense or as an accessory to the underlying offense. U.S. v. Salinas, 956 F.2d 80 (5th Cir. 1992).
5th Circuit determines that old drug sales were part of same conspiracy despite lapse of time. (380) In determining defendant’s sentence, the district court considered defendant’s drug transactions from 1984 to 1989. Defendant contended that the 1984 transactions were not part of the later conspiracy for which he was convicted because he moved to another town in 1985, and while he was there, he had no dealings with his co-conspirators. Moreover, he argued that the statute of limitation barred consideration of the 1984 transactions. The 5th Circuit upheld the inclusion of the 1984 transactions in defendant’s base offense level. A single conspiracy is not converted into multiple conspiracies simply by lapse of time, change in membership, or a shifting emphasis in the location of the operation. The five-year limitations period for prosecuting the 1984 transactions did not expire until the fall of 1989, after defendant’s arrest and indictment. In addition, guideline section 1B1.3(a)(2) does not limit the definition of relevant conduct to acts within the limitations period. U.S. v. Lokey, 945 F.2d 825 (5th Cir. 1991).
5th Circuit finds no ex post facto violation in application of guidelines to conspiracy that began prior to guidelines’ effective date. (380) The 5th Circuit found no ex post facto violation in the application of the guidelines to a conspiracy which began prior to the enactment of the guidelines. Although defendant contended that his participation in the conspiracy was not shown to have continued past the effective date, he did not argue that he withdrew from the conspiracy by taking affirmative acts inconsistent with the conspiracy and communicated this to his conspirators. U.S. v. Puma, 937 F.2d 151 (5th Cir. 1991).
5th Circuit affirms refusal to permit jury to determine termination date of conspiracy. (380) Defendants contended that the trial court erred in refusing to submit a special interrogatory to the jury concerning the termination date of the conspiracy in order to determine whether the conspiracy continued after the effective date of the guidelines. The 5th Circuit found no error. The trial court properly did not view this issue within the purview of the jury and rendered its own factual findings supporting application of the guidelines. Moreover, because all of the defendants were charged and convicted of conspiring to manufacture and possess methamphetamine from 1982 to 1988, there was least an implicit finding from the jury that the conspiracy did continue beyond the effective date of the guidelines. U.S. v. Devine, 934 F.2d 1325 (5th Cir. 1991).
5th Circuit determines defendants were involved in a single conspiracy that continued past effective date of guidelines. (380) Several co-conspirators were involved in a drug lab that produced large quantities of methamphetamine using a new method of production. When authorities learned of the lab, the conspirators quickly disbanded it. Several months later some of the conspirators involved in the first lab began a new lab at a different location several hundred miles away. The new lab used conventional methods of production and produced only a fraction of the methamphetamine produced by the first lab. The first lab was disbanded prior to the effective date of the guidelines, while the second lab continued production until after the effective date of the guidelines. The district court found that a single conspiracy was involved, and sentenced defendants under the guidelines. The 5th Circuit affirmed, finding the district court’s determination that there was one conspiracy involving both labs was not clearly erroneous. The actions of the conspirators at the second lab were reasonably foreseeable. The huge quantity of methamphetamine produced at the first lab, the number of conspirators and the size of the distribution network involved made it likely that the conspiracy would find some means of continuing its operation. U.S. v. Devine, 934 F.2d 1325 (5th Cir. 1991).
5th Circuit finds self-serving statement insufficient to show defendant withdrew from conspiracy. (380) Defendant contended that he withdrew from a drug conspiracy prior to the guidelines’ effective date, and therefore it was improper to sentence him under the guidelines. In a taped conversation in late 1986 or early 1987, defendant told a co-conspirator “I am not involved in that anymore, my partner has fled, he has left the state.” The 5th Circuit found that this “self-serving statement” alone was insufficient to demonstrate that defendant had withdrawn from the conspiracy. U.S. v. Devine, 934 F.2d 1325 (5th Cir. 1991).
5th Circuit affirms enhancing sentence for firearms offense where weapon was used to commit murder. (380) The court properly enhanced defendant’s firearms sentence under § 2K2.1, finding that defendant committed murder during the course of a drug conspiracy. § 2K2.1(c)(2) directs a court to apply § 2X1.1 if the firearm was used or possessed in connection with another offense, and to use the guideline for the other offense if it is more specific. Murder is covered by § 2A1.1. The 5th Circuit found that defendant’s offense was not a justifiable homicide. He sought his victim, laid in wait, and with the help of his brother, provoked the argument that resulted in the victim’s death. Defendant received adequate notice of the government’s intent to seek enhancement of his sentence under § 2K2.1. Evidence relating to the homicide was presented at the sentencing hearing, and defendant had an opportunity to cross-examine the government’s witness or introduce his own evidence, but failed to do so. U.S. v. Harris, 932 F.2d 1529 (5th Cir. 1991).
5th Circuit remands because district court was under mistaken belief that three-year term of supervised release was mandatory. (380) Defendant was convicted of conspiracy under the pre-amendment version of 21 U.S.C. § 846. This version did not provide for a term of supervised release. However, because defendant committed a Class C felony, the guidelines required a term of supervised release of at least two years but not more than three years. The presentence report erroneously indicated that the amended version of § 846 governed defendant’s conviction, requiring a minimum three-year term of supervised release. The judge sentenced defendant on this basis. The 5th Circuit remanded for resentencing. Although defendant’s sentence was within the proper guideline range, it was proper to remand the case because the district court was unaware of its discretion to sentence defendant to a two year term of supervised release. U.S. v. Badger, 925 F.2d 101 (5th Cir. 1991).
5th Circuit upholds departure in misprision case where defendant committed underlying offense. (380) Defendant, the Superintendent of Eduction for a local school system, was convicted of misprision of the felony of mail fraud. The district court departed upward from a guideline range of zero to four months and sentenced defendant to 15 months. The district court based the departure upon the fact that it had “no doubt” that defendant could have been convicted of the underlying offense of mail fraud, that defendant’s offense was a public trust offense, and that defendant had received no imprisonment for a recent state conviction for fraudulently claimed travel expenses. The 5th Circuit upheld the departure. The guideline range for misprision does not contemplate defendant’s guilt of the underlying offense. Defendant was correct that his sentencing range already included a two level increase for his role as a person occupying a position of trust. However, the appellate court found it “apparent” that the district court’s upward departure was not based upon that fact. U.S. v. Pigno, 922 F.2d 1167 (5th Cir. 1991).
5th Circuit holds defendant entitled to reduction where money laundering scheme was not completed. (380) Defendant pled guilty to conspiring to launder money and was sentenced under guideline § 2X1.1(b)(2), which provides that for a decrease of by 3 levels, “unless the defendant or a co-conspirator completed all the acts the conspirators believed necessary on their part for the successful completion of the offense.” The district court refused to decrease defendant’s offense level because it found that he had completed the offense of conspiracy to launder money. The 5th Circuit disagreed, finding that the “offense” referred to in § 2X1.1(b)(2) was the underlying offense of money laundering, and not the charged offense of conspiracy to launder money. The case was remanded to determine whether defendant had substantially completed the offense of money laundering. U.S. v. Rothman, 914 F.2d 708 (5th Cir. 1990).
5th Circuit finds that guidelines apply to conspiracy that continued beyond effective date. (380) The 5th Circuit rejected defendant’s argument that the guidelines should not apply to offenses that originated before the effective date of the guidelines. Defendant’s participation in the conspiracy continued until November 10, 1987, the date of his arrest, and therefore it was proper to apply the sentencing guidelines to his case. U.S. v. Zapata-Alvarez, 911 F.2d 1025 (5th Cir. 1990).
5th Circuit holds guidelines apply to conspiracy that continued beyond guidelines’ effective date. (380) Defendant pled guilty to a conspiracy which occurred from October 1, 1987 to February 6, 1988, and was sentenced to 63 months in prison and five years of supervised release. Defendant argued that the term of supervised release was improper, since the statute under which he was convicted only provided for punishment by fine or imprisonment. The 5th Circuit held that the term of supervised release was authorized by the Sentencing Reform Act of 1984. Although the conspiracy began prior to the effective date of the Act, it continued beyond such date. Therefore the guidelines were applicable to the conspiracy. U.S. v. Van Nymegen, 910 F.2d 164 (5th Cir. 1990).
5th Circuit finds sentence properly based on amount of drugs entire conspiracy contemplated, not amount actually purchased. (380) Defendant joined a conspiracy that sought to purchase 2000 pounds of marijuana. However, defendant only agreed to purchase 500 pounds. After being arrested, defendant pled guilty to one count of Interstate Travel in Aid of Racketeering, 18 U.S.C. § 1952, in order to avoid prosecution on conspiracy with intent to distribute marijuana 21 U.S.C. 846. In calculating the sentence, the judge used the 2000 pound figure and defendant appealed, contending that the 500 pound figure should have been used. The 5th Circuit affirmed the sentence, ruling that under guideline 2D1.4 the offense level for an incomplete conspiracy is the same as if the object of the conspiracy had been completed. Although defendant only wanted to buy 500 pounds he was a member of a conspiracy seeking to buy 2000 pounds and therefore the judge’s calculation was not clearly erroneous. U.S. v. Farrell, 893 F.2d 690 (5th Cir. 1990).
5th Circuit applies guidelines to conspiracies which began before, but continue after November 1, 1987. (380) Relying on its earlier decision in U.S. v. White, 869 F.2d 822 (5th Cir. 1989), the 5th Circuit held that the guidelines apply to a defendant who joined a conspiracy to manufacture methamphetamine which was already in existence on November 1, 1987, but continued thereafter. No ex post facto violation occurred from the application of the guidelines to this offense. U.S. v. Boyd, 885 F.2d 246 (5th Cir. 1989).
5th Circuit rules that quantity of precursor may be relied upon in setting offense level. (380) The 5th Circuit held that it is proper to consider quantities of precursor chemicals possessed by drug conspirators when setting the base offense level. Section 2D1.4 provides that a defendant convicted of an incomplete conspiracy shall be sentenced as if the object of the conspiracy had been completed. Since a chemist testified that 12 pounds of P2P would produce 12 pounds of amphetamine, it was proper for the district court to consider the P2P as actual methamphetamine when calculating the offense level. U.S. v. Stephenson, 887 F.2d 57 (5th Cir. 1989), abrogation on other grounds recognized by U.S. v. Johnon, 961 F.2d 1188 (5th Cir. 1992).
5th Circuit holds that guidelines apply to conspiracies continuing after Nov. 1, 1987. (380) The 5th Circuit held that conspiracies which extend after the effective date of the Sentencing Reform Act, November 1, 1987, are subject to sentencing under the guidelines. U.S. v. Stewart, 879 F.2d 1268 (5th Cir. 1989).
5th Circuit holds that guidelines apply to conspiracies continuing after Nov. 1, 1987. (380) The 5th Circuit held that conspiracies which extend after the effective date of the Sentencing Reform Act, November 1, 1987, are subject to sentencing under the guidelines. U.S. v. Stewart, 879 F.2d 1268 (5th Cir. 1989).
5th Circuit rules guideline section for attempt or solicitation applies only where there is no specific offense guideline. (380) Defendant pled guilty to one count of attempted bank robbery and received a 51 month sentence. Section 2X1.1(b), which provides for reduction of offense levels for attempts is not applicable when there exists a specific guideline for the attempted offense. Since there is a specific guideline for attempted bank robbery (see § 2B3.1(a), the general attempt guideline did not apply. In any event, he would not have been entitled to a reduction under the general attempt guideline because he had done all that was necessary to complete the crime. Thus the defendant’s sentence was correct. U.S. v. Toles, 867 F.2d 222 (5th Cir. 1989).
6th Circuit applies cross-reference where defendant knew trial he was obstructing involved over $2 billion. (380) Defendant obstructed justice by attempting to get a witness to provide false information in a pending securities case. He was convicted of obstruction of justice, witness tampering, and conspiracy. The Sixth Circuit held that the district court properly allowed evidence from the securities case to be used in the obstruction case. Section 2J1.2 allows a sentencing enhancement if the offense “involved obstructing the investigation or prosecution of a criminal offense.” Section 2X3.1 creates a base offense level of 6 levels lower than the offense level for the underlying offense, not to fall below four or exceed 30. The enhancement is proper if the specific characteristics of the underlying offense, the securities offense, “were known, or reasonably should have been known, by the defendant.” The indictments and recordings of defendant discussing the securities fraud case demonstrated that he knew that the trial he was attempting to obstruct had over $2 billion at stake. Thus, the application of the enhancement was proper. U.S. v. Poulsen, 655 F.3d 492 (6th Cir. 2011).
6th Circuit says § 2X1.1 cross-reference can be used even where firearm is not same firearm that resulted in conviction. (380) Defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). “If the defendant used or possessed any firearm in connection with the commission … of another offense,” § 2K2.1 directs a court to apply § 2X1.1. with respect to that other offense, if it would result in a higher offense level. The district court found defendant’s July 4, 2002 firearms offense was part of a course of conduct that culminated in his July 17 intentional shooting and severe injury of Young, and applied the cross reference to sentence defendant under § 2A2.2 (Attempted Murder). The Sixth Circuit noted that at the resentencing required by Booker, the cross-reference could be applied even if defendant used a different firearm to shoot Young than the firearm that he possessed on July 4, 2002. On remand, the court may apply § 2K2.1(c)(1) if it finds a clear connection between the firearm that defendant possessed on July 4, 2002 and any different firearm he possessed thereafter in order to shoot Young, intimidate witnesses to the Young shooting, and/or rob individuals in order to obtain money that would assist defendant’s effort to avoid detection for shooting Young. U.S. v. Settle, 414 F.3d 629 (6th Cir. 2005).
6th Circuit holds that application of cross-reference to accessory guideline was mandatory. (380) While serving a state prison sentence, defendant was called to testify before a grand jury investigating Winston and Clemmons. In exchange for his testimony, defendant was offered immunity. Defendant testified before the grand jury, but refused to testify at trial. He was convicted of criminal contempt for his refusal to testify. Guideline § 2J1.2 contains a sentencing cross-reference to § 2X3.1 (Accessory After the Fact), which is to be applied if the “offense involved obstructing the investigation or prosecution of a criminal offense.” Defendant argued that the district court erred by applying the § 2X3.1 cross-reference. The Sixth Circuit rejected this argument because application of the § 2X3.1 cross-reference is mandatory. Defendant’s claim that he was not actually an accessory after the fact to the homicide at issue was not relevant, since it does not matter whether the defendant is actually guilty of the crime referenced in § 2X3.1 in order for the higher sentence recommendation to be imposed. U.S. v. Kimble, 305 F.3d 480 (6th Cir. 2002).
6th Circuit says accessory is responsible for principal’s adjustments if accessory knew of them. (380) Defendant approached Corrado, an acquaintance on trial for RICO charges, and told him he had two people on the jury who would be willing to “hang” the jury for him. Defendant was convicted of obstruction of justice. Guideline § 2J1.2 says that if the offense involved obstructing the investigation or prosecution of a criminal offense, the court should apply § 2X3.1 (Accessory After the Fact) in respect to that criminal offense if it would result in a higher offense level. The Sixth Circuit considered whether defendant’s offense level should be based on the offense level for the underlying RICO offense or on Corrado’s total offense level, which included adjustments for multiple counts, role in the offense, and specific offense characteristics. Application Note 1 to § 2X3.1 directs the court to apply “the base offense level [of the underlying offense obstructed] plus any applicable specific offense characteristics that were known, or reasonably should have been known, by the defendant.” Thus, adjustments to a principal’s base offense level enter into the determination of an accessory-defendant’s offense level, but only if the defendant had knowledge of those elements. In the absence of factual findings regarding defendant’s knowledge of those circumstances that increased Corrado’s base offense level, the district court erred by simply adopting Corrado’s total offense level of 33 as a component of defendant’s base offense level. U.S. v. Shabazz, 263 F.3d 603 (6th Cir. 2001).
6th Circuit rejects attempt reduction because bankruptcy fraud was complete upon filing of petition. (380) Defendant filed a voluntary petition for bankruptcy that failed to disclose $979,677.63 in net assets. The bankruptcy trustee discovered the fraud shortly thereafter, and no actual loss resulted. Defendant pled guilty to bankruptcy fraud, in violation of 18 U.S.C. § 157(1). The district court granted him a three-level reduction under § 2X1.1(b)(1) for an attempted offense. The Sixth Circuit reversed, since defendant’s bankruptcy fraud offense was complete upon his filing of the bankruptcy petition. The case relied upon by the district court, U.S. v. Watkins, 994 F.2d 1192 (6th Cir. 1992), did not hold that failure to complete all of the acts necessary to produce the full amount of intended loss mandates a § 2X1.1(b)(1) reduction. Instead, the inquiry is whether “the defendant completed all the acts the defendant believed necessary for successful completion of the substantive offense ….” The relevant substantive offense was the fraud itself, not fraudulent deprivation of a particular sum. Here, the substantive offense of bankruptcy fraud was complete when defendant filed the fraudulent bankruptcy petition. Although defendant would have had to take additional acts in order to inflict the loss he intended, these additional acts would have subjected him to additional counts of bankruptcy fraud. Attempted bankruptcy fraud can arise only in the usual situation of an unsuccessful attempt to file the bankruptcy petition itself. U.S. v. DeSantis, 237 F.3d 607 (6th Cir. 2001).
6th Circuit says aider and abettor’s offense level should be based on own criminal record. (380) Defendant pled guilty to aiding and abetting a felon in possession of a firearm. Section 2X2.1 says that the offense level for a defendant who is convicted of aiding and abetting “is the same level as that for the underlying offense.” The applicable firearm guideline, § 2K2.1, provides for an increased base offense level of 24 if the defendant has been convicted of two or more prior felonies. The district court held that a defendant convicted of aiding and abetting should be given the same base offense level as the principal offender. Because the principal had received an offense level of 24, the district court gave defendant an offense level of 24. The Sixth Circuit reversed, holding that the offense level of an aider and abettor should be calculated using that individual’s criminal record rather than the criminal record of the principal offender. Section 2X2.1 says that the defendant’s offense level is the same “as that for the underlying offense.” The guideline does not say that the defendant’s offense level is the same level as that of the principal offender. Treating an aider and abettor as a principal means only that the defendant is treated as if she or he actually committed the underlying offense. U.S. v. Hendrick, 177 F.3d 547 (6th Cir. 1999).
6th Circuit bases specific offense characteristic on defendant’s knowledge when he obstructed justice. (380) Defendant participated in a conspiracy to obstruct the prosecution of a convicted felon who was on trial for possession of 33 firearms. The conspiracy required different individuals to claim ownership of the guns actually owned and possessed by the felon. Under § 2X3.1, the accessory after the fact guideline, the offense level is based on the offense level for the underlying offense. Defendant’s friend was convicted of being a felon in possession of firearms, and received a five-level enhancement under § 2K2.1(b)(1)(E) for possessing 33 firearms. The district court refused to apply this enhancement to defendant because he did not know about the number of weapons at the time they were seized by the government. The Sixth Circuit held that in determining whether to apply the specific offense characteristic relating to the number of weapons, a court should look to defendant’s knowledge at the time he obstructed justice. A defendant’s sentence should be based on the specific crime he knew he was concealing. U.S. v. Miller, 161 F.3d 977 (6th Cir. 1998).
6th Circuit calculates enhancement for partially completed offense. (380) Defendant argued that three stolen checks found at his apartment should not have been included in the loss calculation under section 2F1.1 because he never attempted to cash them. The 6th Circuit upheld consideration of the uncashed checks. Note 7 to section 2F1.1 states that intended loss should be used if greater than the actual loss. However, note 7 must be read with section 2X1.1(b)(1), which governs attempts. Under note 4 to section 2X1.1, the offense level is the greater of (a) the offense level for the intended offense minus three levels, or (b) the offense level for the part of the offense for which the necessary acts were completed. Although defendant did not complete all the acts necessary to cash the stolen checks, he did complete all of the acts necessary to fraudulently obtain $19,837.13. His sentence should have been enhanced based on this total, because the corresponding three level enhancement under section 2F1.1(b)(D) is greater than the five level enhancement required by section 2F1.1(b)(F) for the total intended loss of $40,337, less three levels. U.S. v. Aideyan, 11 F.3d 74 (6th Cir. 1993).
6th Circuit affirms that defendant’s perjury in court was “in respect to a criminal offense.” (380) Defendant was convicted of eight counts of making a false statement before a court, after he recanted in court incriminating testimony he had given against his drug co-conspirators. Section 2J1.3(c)(a) provides that if the offense involved perjury “in respect to a criminal offense,” apply section 2X3.1 (Accessory After the Fact) in respect to that criminal offense, if it results in a higher offense level. The 6th Circuit affirmed that defendant’s perjury was “in respect to” the drug conspiracy. The false testimony was intended to grant the co-conspirators a new trial. Accordingly, section 2X3.1 was applicable. Defendant was an unindicted co-conspirator and an active member of the conspiracy who was granted immunity from prosecution in exchange for testimony. He became an accessory after the fact when he committed perjury to assist his co-conspirators in obtaining a new trial. U.S. v. Colbert, 977 F.2d 203 (6th Cir. 1992).
6th Circuit holds that defendant’s intention to cause life-threatening injury was not speculative. (380) Defendant planned to kidnap the owners of two jewelry stores, possibly murder them, and then rob their stores. Section 2X1.1 (Attempt, Solicitation or Conspiracy) dictated the use of the base offense level from the guideline for the object offense, which in this case was kidnapping. The district refused to apply a four level increase under section 2A4.1(b)(2) for “life threatening bodily injury,” finding such an assumption to be too speculative. The 6th Circuit found that defendant’s intent to inflict life-threatening bodily injury was not speculative, since the jury found that defendant intended to murder several people as part of his plan. U.S. v. Holmes, 975 F.2d 275 (6th Cir. 1992).
6th Circuit affirms that purpose of kidnapping was robbery, not murder. (380) Police uncovered a plot to kidnap the owners of two jewelry stores, possibly murder them, and then rob their stores. Defendant was sentenced under section 2X1.1 (Attempt, Solicitation or Conspiracy), which dictates the use of the base offense level from the guideline for the object offense. The introduction to Chapter 3 directs a court to use the offense level for the most serious offense, i.e., kidnapping. Section 2A4.1(b)(5) states that if the victim was kidnapped to facilitate the commission of another offense, the guideline for the other offense should be applied if it would result in a higher base offense level. The government argued that defendant intended to commit murder. The 6th Circuit rejected this, since the kidnapping was not meant to facilitate the commission of a murder. Rather, defendant’s notes indicated that his goal was to rob the jewelry stores, and the kidnapping and murder were meant to facilitate the commission of the robbery. U.S. v. Holmes, 975 F.2d 275 (6th Cir. 1992).
6th Circuit upholds application of mandatory minimum sentence for defendant who attempted to purchase baking soda. (380) Defendant was convicted of attempt and conspiracy to possess cocaine in violation of 21 U.S.C. section 846 after arranging to purchase two kilograms of cocaine from an undercover agent. In fact, the agent was carrying two kilograms of pure baking soda. The 6th Circuit rejected defendant’s claim that the mandatory minimum sentences in 21 U.S.C. section 841(b) were inapplicable to him because his offense did not involve “a mixture or substance containing a detectable amount” of cocaine. If the transaction had proceeded, defendant could not have been convicted of possession of cocaine because he would have possessed pure baking soda. However, defendant was convicted of attempt and conspiracy to possess cocaine. Section 846 requires the imposition of the same penalties as the completed offense. It did not matter whether the packages the agent carried contained pure cocaine, pure baking soda, or even existed at all. U.S. v. Kottmyer, 961 F.2d 569 (6th Cir. 1992).
6th Circuit bases mandatory minimum sentence on total drugs involved in conspiracy. (380) Defendant was convicted of a drug conspiracy involving 2 to 3.5 kilograms of cocaine. The 6th Circuit found that the district court erroneously failed to impose the mandatory minimum 10-year sentence. The penalty provisions for substantive drug offenses contained in 21 U.S.C. § 841 apply to related conspiracy convictions under 18 U.S.C. § 846. The penalty for possession with intent to distribute 500 or more grams of cocaine is five to 40 years, with a minimum of 10 years where the defendant has previously been convicted of a drug offense. The trial court incorrectly ruled that the mandatory minimum applied only where the conspiracy dealt in quantities of 500 grams or more at one time. The 6th Circuit held that the court should have added up the total amount sold during the lifetime of the conspiracy. U.S. v. Hodges, 935 F.2d 766 (6th Cir. 1991).
6th Circuit upholds perjury sentence based on level for underlying offense. (380) Defendant was convicted of perjury in connection with misrepresentations he made in a pro se challenge to a drug conviction. The 6th Circuit affirmed the district court’s determination that defendant had a base offense level of 20 for his perjury conviction. Guideline § 2J1.3 states that if the perjury involved another criminal offense, guideline § 2X3.1 is to be applied if the offense level is greater than 12. Under § 2X3.1(a), the base offense level is six levels lower than the offense level for the underlying offense, but in no event less than four or more than 30. The underlying offense for the perjury conviction was defendant’s drug conviction, which had a base offense level of 26. Therefore, the offense level for defendant’s perjury conviction was 20. U.S. v. Gomez-Vigil, 929 F.2d 254 (6th Cir. 1991).
6th Circuit holds that guidelines apply to conspiracy that “straddles” effective date of guidelines. (380) Following cases in other circuits, the 6th Circuit found that the sentencing guidelines applied to a conspiracy that began prior to but terminated after the effective date of the guidelines. The court rejected defendant’s argument that he had withdrawn from the conspiracy prior to the effective date of the guidelines. Defendant had committed several overt acts pursuant to the conspiracy after the effective date. Directions from defendant to his counsel to negotiate with the government did not constitute a withdrawal from the conspiracy. U.S. v. Edgecomb, 910 F.2d 1309 (6th Cir. 1990).
6th Circuit applies guidelines to conspiracy that continued beyond effective date of guidelines. (380) Defendant was charged with a conspiracy running from May 1986 through September 1988. The sentencing guidelines became effective November 1987. Defendant argued that all of the overt acts occurred before November 1, 1987, and therefore he should have been sentenced under pre-guideline standards. The 6th Circuit rejected this argument, holding that the guidelines apply to such “straddle crimes.” Moreover, defendant had waived his objection to being sentenced under the guidelines when his counsel agreed in court with the judge’s statement that he would sentence under the guidelines. U.S. v. Sloman, 909 F.2d 176 (6th Cir. 1990).
6th Circuit holds that guidelines apply to conspiracies which begin before, but continue after effective date of guidelines. (380) Several drug defendants contended that they were sentenced in violation of the ex post facto clause because their conspiracy began before the effective date of the guidelines, but continued thereafter. The 6th Circuit disagreed, holding that one who commits a continuing offense beginning before the effective date of the guidelines and ending after the effective date of the guidelines can be sentenced under the guidelines without violating the ex post facto clause. Furthermore, it is not necessary for the government to prove that the defendants committed an act in furtherance of the conspiracy or knew of acts committed after the effective date of the guidelines in order to be sentenced under the guidelines. Under the Pinkerton rule, conspirators are held liable for foreseeable acts of their coconspirators committed in furtherance of the conspiracy. In order to escape liability for acts committed after the effective date of the guidelines, defendants must prove that they affirmatively withdrew from the conspiracy before the effective date. U.S. v. Walton, 908 F.2d 1289 (6th Cir. 1990).
6th Circuit upholds plea to harboring charge even though defendant was unaware that sentence would be based on amount of drugs of person he was hiding. (380) Section 2X3.1 of the guidelines provides that the sentence for harboring a fugitive under 18 U.S.C. § 1071 is determined by taking the base offense level of the underlying offense and reducing it by 6 levels. Defendant claimed that he did not enter his plea “knowingly and intelligently” because he was unaware that his sentence would be based on the amount of drugs involved in the conspiracy charge of his son whom he was hiding. He filed a motion to withdraw his plea after discovering the amount of cocaine involved in his son’s conspiracy charge. The 6th Circuit found no abuse of discretion in refusing to permit withdrawal of the plea, ruling that “[a]lthough he may have been unaware of the specific result once the guideline was applied to him, he was aware of the consequences of entering into the plea agreement.” U.S. v. Stephens, 906 F.2d 251 (6th Cir. 1990).
7th Circuit denies reduction even though conspirators lost intended robbery victim in traffic. (380) Defendant and others conspired to rob a truck used by marijuana traffickers to transport cash from Illinois to California. The conspirators lost the truck in traffic, and were unable to complete the robbery. Guideline § 2X1.1(b)(2) provides for a three-level reduction unless the conspirators “completed all the acts the conspirators believed necessary … for the successful completion of the substantive offense or the circumstances demonstrate that the conspirators were about to complete all such acts but for apprehension or interruption by some similar event beyond their control.” The district court refused to apply the reduction. The preparatory acts here were the procurement of weapons and other supplies, the identification of the marijuana traffickers’ truck, the surveillance of it, and its pursuit. When the conspirators set off after the truck, their preparations were complete and all that remained was to rob the truck as soon as it reached the Missouri border. When the preparations for the commission of a crime are complete, it can be assumed that the crime will take place unless some unforeseen event intervenes, as happened here. U.S. v. Dosen, 738 F.3d 874 (7th Cir. 2013).
7th Circuit approves increase for conspiring to physically restrain victims. (380) Defendant and other conspired to rob a truck used by marijuana traffickers to transport cash from Illinois to California. The conspirators lost the truck in traffic, and were unable to complete the robbery. Defendant pled guilty to conspiring to commit robbery and carrying firearms during a crime of violence. The district court applied a two-level enhancement for conspiring (as part of the robbery conspiracy) to subject the robbery victims to physical restraint. See §§ 2X1.1(a), 2B3.1(b)(4)(B). The Seventh Circuit upheld the physical restraint enhancement. As part of their preparations for the robbery, the conspirators bought duct tape. Conversations recorded by a government informant posing as a conspirator revealed that defendant and his accomplices planned to use the tape to bind the robbery victims. Although defendant argued that it was just a “possibility,” that could be said of any conspiracy. The enhancement merely requires reasonable certainty that the forbidden conduct was “specifically intended” by the conspirators. That requirement was satisfied here. U.S. v. Dosen, 738 F.3d 874 (7th Cir. 2013).
7th Circuit says definition of “substantive offense” does not apply when § 2X1.1 is applied by cross-reference. (380) While on bond, defendant stole his ex-brother-in-law’s identity, obtained a passport in his name, and moved to Panama. He was convicted of making a false statement on a passport application. Guideline § 2L2.2(c)(1)(A) provides that if the defendant used a passport in the commission of another felony, the court should apply § 2X1.1 for that felony offense. Section § 2X1.1 directs a court to apply “the base offense level from the guideline for the substantive offense …” The district court found that defendant used his passport to commit bail jumping, and applied § 2J1.6 (Failure to Appear). Defendant argued that § 2X1.1 did not apply because at the time he was sentenced, he had not been actually convicted for failure to appear. See Application Note 2 to § 2X1.1 (defining “substantive offense” as “the offense that the defendant was convicted of soliciting, attempting, or conspiring to commit”). The Seventh Circuit held that Note 2 does not apply when § 2X1.1 is reached by cross-reference from § 2L2.2(c)(1)(A). In that situation, it is rare that a defendant will have already been convicted of soliciting, attempt, or conspiring to commit” an underlying offense at the time of sentencing. Note 2 was logically intended to be applied when § 2X1.1 is applied directly. U.S. v. Earls, 704 F.3d 466 (7th Cir. 2012).
7th Circuit says robber not entitled to reduction for attempt. (380) Defendant attempted to rob two different banks by handing the teller a note that read: “Give me all your hundreds, and don’t hit any alarms or people start getting hurt. You have 30 seconds.” In both cases, he became frustrated by delays and walked out of the bank without any money. He was convicted of two counts of bank robbery. Defendant argued that the district court should have granted him a three-level decrease under § 2X1.1(b)(1) for an attempt. The Seventh Circuit disagreed, since defendant completed all of the acts necessary to complete the robberies. Although defendant could have told the tellers he had a gun or other weapon in an effort to make them comply with his demands, the mere fact that a defendant could have tried something else does not entitle him to a guideline decrease. U.S. v. Emmett, 321 F.3d 669 (7th Cir. 2003).
7th Circuit holds that possession of credit access devices completed crime. (380) Defendant was arrested while attempting to make a $1500 purchase with a counterfeit credit card. He was later arrested in possession of a computerized list of 414 cloned telephone numbers with corresponding electronic serial numbers and handwritten directions explaining how to clone cellular phones. He also turned over to postal inspectors some 60 cards and equipment he used to make phony credit cards, and acknowledged that he previously possessed an additional 140 phony cards. The district court calculated the loss under § 2F1.1 by adding the actual charges ($8500) defendant made on the cards seized from him, the $1500 charge defendant was trying to make on when he was arrested, $100 for each of the 414 cloned cell phone numbers for a total of $41,400, and $200 for each of the 200 counterfeit cards, or $20,000. Defendant argued that he deserved a three-level reduction under § 2X1.1 because he had not completed all acts necessary to carry out the frauds, i.e. he had not yet cloned any cell phones and the 200 credit cards were not used. The Seventh Circuit disagreed, ruling that defendant’s mere possession of the credit access devices completed the crime. The fact that defendant never used the cell phone numbers or phony credit cards was irrelevant. U.S. v. Scott, 250 F.3d 550 (7th Cir. 2001).
7th Circuit holds that court should have applied reduction for partially completed theft. (380) Defendant broke into a bank carrying a screwdriver, wire cutters, and a crowbar. With these tools, he was only able to damage the main vault’s handle and locking mechanism. However, he managed to take $350 from two coin vaults. Concluding that defendant “intended” to steal everything he could lay his hands on, the district court included in the loss calculation the contents of the main vault, about $200,000. The Seventh Circuit held that the contents of the main vault could not be counted in the loss without subtracting three levels under § 2X1.1(b)(1) for a partially completed offense. Section 2X1.1(b)(1) says that such a three-level decrease applies to an attempt, unless the defendant completed all the acts he believed necessary for success or he was about to complete them when caught. Note 4 gives an illustration that speaks directly to defendant’s theft. Although neither party discussed with the judge how § 2X1.1(b)(1) works, the guideline is straightforward, and the failure to apply the three-level reduction was plain error. U.S. v. Lamb, 207 F.3d 1006 (7th Cir. 2000).
7th Circuit bases intended loss on face value of fraudulently obtained insurance policies. (380) Defendant and a co-conspirator obtained life insurance on critically ill individuals under employee group life policies, without their knowledge, and then collected when they died. The actual loss to the insurance companies was $600,000. The district court found that the intended loss was $4.2 million, the face value of the fraudulently obtained policies. The Seventh Circuit upheld the use of intended loss. Defendant’s actions, including his decision to continue to pay premiums on the policies, showed that he intended to collect their face values. The fact that the “insureds” had not yet died made no difference, because future events that are beyond defendant’s control do not affect his intent. The Seventh Circuit further rejected defendant’s claim that he was entitled to a three-level reduction under § 2X1.1 for a “partially completed offense.” The substantive offense of attempted mail and wire fraud was complete. See U.S. v. Coffman, 94 F.3d 330 (7th Cir. 1996). U.S. v. Lorefice, 192 F.3d 647 (7th Cir. 1999).
7th Circuit says accessory need not know amount of drugs in underlying offense. (380) Defendant, a grand jury member, communicated secret information to a friend who was under grand jury investigation for drug charges. The district court applied § 2X3.1 (accessory after the fact), which bases its offense level on the offense level for the underlying offense. The district court determined that defendant’s conviction made him an accessory after the fact to the drug case being investigated by the grand jury. The Seventh Circuit held that an accessory to a drug offense who is sentenced under § 2X3.1 need not know or reasonably know of the quantity of drugs involved in the underlying drug offense. Application note 1 only requires specific offense characteristics of the underlying offense to be known or reasonably known. When the underlying offense is a drug-related offense, the specific offense characteristics include gun possession and use of a private aircraft. Drug quantity is not a specific offense characteristic. U.S. v. Girardi, 62 F.3d 943 (7th Cir. 1995).
7th Circuit reverses for failure to decide whether money laundering scheme was complete. (380) Defendant pled guilty to conspiracy to launder money and three counts of obstruction of justice. Defendant argued for the first time on appeal, that the district court erred by not reducing her § 2X1.1(a) base offense level by three points because the money laundering scheme was uncompleted. The Seventh Circuit held that the district court committed plain error by failing make a factual determination whether defendant completed her part in the money laundering scheme. The reduction is mandated unless a court finds that defendant has completed all acts the conspirators thought necessary to complete the substantive offense. The court did not make such a finding, and portions of the record suggested that the court thought otherwise. U.S. v. Maggi, 44 F.3d 478 (7th Cir. 1995).
7th Circuit holds that filing of false insurance claims completed the offense. (380) Defendant was convicted of filing false insurance forms with the U.S. Department of Agriculture. None of the claims were ever paid. The 7th Circuit affirmed the denial of a three level reduction under section 2X1.1 for a partially completed offense. Defendant was convicted of filing false statements. The filing alone completed his offense under 18 U.S.C. section 1001. U.S. v. Simpson, 995 F.2d 109 (7th Cir. 1993).
7th Circuit considers full amount of fraudulently deposited funds as intended loss. (380) Over three visits, defendant deposited bogus checks totaling $405,000 into a bank account, and managed to withdraw and spend $36,000. The 7th Circuit upheld including in the loss calculation under section 2F1.1 the full $405,000 deposited into the account, rather than just the $36,000 defendant actually withdrew from the account. Under note 7 to section 2F1.1, if an intended loss can be determined, it should be used if it is larger than the actual loss. Defendant’s activities left no doubt that the intended loss was the full $405,000 he fraudulently deposited. Only his arrest, barely one month after he set his scam in motion, prevented defendant from spending the rest of the fraudulently deposited funds. Defendant also did not qualify for a three level reduction under section 2X1.1 for merely attempting to defraud the bank of the full $405,000. Defendant completed his fraud when he set up the fraudulent accounts. U.S. v. Strozier, 981 F.2d 281 (7th Cir. 1992).
7th Circuit affirms sentencing under 2X3.1 for defendant who perjured himself to protect others. (380) Defendant, a conspirator in a marijuana farm, was convicted of perjury for testifying before a grand jury that he had no knowledge that his co-conspirators were involved in a marijuana operation. Section 2J1.3(c)(1) directs that if the perjury was in respect to another criminal offense, apply section 2X3.1 (Accessory After the Fact) with respect to that offense. Relying on U.S. v. Huppert, 917 F.2d 507 (11th Cir. 1990), defendant argued that he was improperly sentenced as an accessory after the fact under sections 2J1.3(c)(1) and 2X3.1 because as a principal in the marijuana-growing conspiracy, he could not also be sentenced as an accessory. The 7th Circuit affirmed, distinguishing Huppert. Unlike Huppert, defendant was clearly trying to protect others, and not himself. Defendant was immunized for his testimony, and thus had no reason to protect himself. U.S. v. Curry, 977 F.2d 1042 (7th Cir. 1992).
7th Circuit affirms firearm and abduction enhancements for solicitation offense. (380) Defendant was convicted of soliciting another man to commit a bank robbery. In determining defendant’s offense level, the district court added four points under section 2B3.1(b)(4)(B) for abducting a person, and four points under section 2B3.1(b)(2)(B) for use of a weapon. Defendant challenged the enhancements because under note 2 to section 2X1.1, in computing the offense level for solicitation, the court should not add levels for speculative specific offense characteristics. The 7th Circuit upheld the enhancements because they were not speculative. There was ample evidence that a firearm was to be used and that the conspirators were planning to abduct the bank manager in order to get the keys to the bank vault. That the robbery never took place was irrelevant to the computation and did not change the evidence into mere speculation. U.S. v. Jones, 950 F.2d 1309 (7th Cir. 1991).
7th Circuit rules defendant did not withdraw from conspiracy. (380) The 7th Circuit upheld the district court’s determination that defendant did not withdraw from a drug conspiracy prior to the effective date of the guidelines. Although defendant testified that he told the conspiracy’s leader that he no longer wished to participate, the district court was entitled to disbelieve that testimony and rely on the testimony of another cocaine purchaser and federal undercover agents who described defendant’s involvement after his alleged withdrawal. U.S. v. Bafia, 949 F.2d 1465 (7th Cir. 1991).
7th Circuit rules defendant who ceased selling drugs after smashing co-conspirator’s car did not withdraw from conspiracy. (380) The 7th Circuit rejected defendant’s claim that he committed no acts in furtherance of the conspiracy after the effective date of the guidelines. His acts were not part of a separate conspiracy as he contended. However, even if they were, and defendant committed no acts in furtherance of the conspiracy after the guidelines’ effective date, he was still liable because he did not withdraw from the conspiracy. Although defendant demolished a co-conspirator’s car and stopped selling cocaine for him because they were no longer on good terms, defendant did not perform an affirmative act renouncing the goals of the conspiracy. U.S. v. Bafia, 949 F.2d 1465 (7th Cir. 1991).
7th Circuit affirms that defendant participated in conspiracy until after effective date of guidelines. (380) The 7th Circuit upheld the district court’s finding that defendant was involved in a conspiracy through August 1989, despite defendant’s contention that he terminated his involvement in October, 1987. At defendant’s sentencing hearing, defendant’s ex-wife, the co-conspirator and the co-conspirator’s girlfriend all testified as to defendant’s involvement in the conspiracy through 1989. In particular, the co-conspirator testified that he and defendant grew marijuana from 1986 to 1989, and that although defendant told him in 1987 that he wanted nothing further to do with him, defendant continued to supply him with seeds. Defendant presented testimony from a police investigator who searched his apartment, his apartment complex managers and his mother, who all testified that they had not seen any signs of marijuana at his apartment. Defendant’s son testified that he saw his father tell the co-conspirator in October 1987 that he wanted nothing further to do with him. Although the district court found defendant’s witnesses credible, it nonetheless concluded that the government proved defendant’s involvement by a preponderance of the evidence. U.S. v. Schuster, 948 F.2d 313 (7th Cir. 1991).
7th Circuit holds failed attempt to smuggle drugs was in furtherance of conspiracy. (380) All of the marijuana imported by a drug conspiracy came into the country prior to November 1, 1987, the effective date of the guidelines. However, the drug ring unsuccessfully attempted to smuggle two additional drug shipments into the country after November 1, 1987. The 7th Circuit held that the failed attempts to smuggle drugs were in furtherance of the importation conspiracy. Therefore, the conspiracy was a straddle crime, and the guidelines were applicable to the offense. U.S. v. Morrison, 946 F.2d 484 (7th Cir. 1991).
7th Circuit rules that wire fraud had been completed. (380) Defendants placed fraudulent telephone orders at a bank that resulted in $70 million being wired out of the bank. The funds were headed for three forged bank accounts set up by defendants in Vienna, Austria. The funds made it as far as two banks in New York City before the scheme was discovered. Guideline § 2X1.1, entitled “Attempt, Solicitation, or Conspiracy Not Covered by a Specific Guideline,” provides that the base offense level for the object offense shall apply. However for conspiracies, the offense level is reduced by three unless defendant or a co-conspirator completed all of the acts the conspirators believed necessary for the completion of the offense. The 7th Circuit rejected defendants’ contention that they should receive this three-level reduction. Although defendants had yet to obtain and enjoy the fruits of their fraud, “obtaining and spending the proceeds of the fraud are not . . . `necessary acts of the object offense[s]’ of wire and bank fraud.” U.S. v. Strickland, 935 F.2d 322 (7th Cir. 1991).
7th Circuit upholds application of guidelines to conspiracy that began prior to guidelines’ effective date. (380) Following circuit precedent, the 7th Circuit upheld the application of the guidelines to defendants’ conspiracy that began prior to, but continued after, the effective date of the guidelines. U.S. v. Osborne, 931 F.2d 1139 (7th Cir. 1991).
7th Circuit holds supervised release is authorized by 18 U.S.C. § 3583. (380) Defendant contended that it was improper to sentence him to a term of supervised release because the drug conspiracy statute then in effect, 21 U.S.C. § 846, only authorized a fine or imprisonment. Following the 2nd, 5th and 11th Circuits, the 7th Circuit held that the term of supervised release was authorized by 18 U.S.C § 3583 for violations of § 846 committed after November 1, 1987. U.S. v. Osborne, 931 F.2d 1139 (7th Cir. 1991).
7th Circuit remands for determination of date conspiracy ended. (380) Defendants were sentenced for conspiracy under pre-guidelines law. The 7th Circuit found that this was proper, assuming the conspiracy ended prior to November 1, 1987. However, the district court made no finding as to when the conspiracy ended. The case was remanded for determination of the date the conspiracy ended, and a resentencing of defendants on this count if the court found that the conspiracy ended after the guidelines took effect. If the court sentences defendants under the guidelines for the conspiracy count, then the district judge should be governed by guideline § 5G1.2(d) in determining whether the new sentences should be concurrent or consecutive to the defendants’ pre-guideline sentences. U.S. v. Masters, 924 F.2d 1362 (7th Cir. 1991).
7th Circuit affirms application of guidelines to conspiracy that began prior to effective date of guidelines. (380) Defendant contended that it violated the ex post facto clause to apply the guidelines to his conspiracy offense since he engaged in acts before, as well as after, the effective date of the guidelines. The 7th Circuit, following recent Circuit precedent, found no ex post facto violation. U.S. v. McKenzie, 922 F.2d 1323 (7th Cir. 1991).
7th Circuit upholds use of assault guideline for firearms offense. (380) Defendant was convicted of being a felon in possession of a firearm. The 7th Circuit found that the district court properly sentenced defendant using the offense level for aggravated assault. The guideline for the felon-in-possession charge, § 2K2.1, states that if the felon used a weapon in connection with the commission or attempted commission of another offense, guideline § 2X1.1 should be applied if the offense level would be higher. Section 2X1.1(a) provides that the base offense level shall be the base offense level for the “object offense.” The term “object offense” refers to the underlying conduct, in this case aggravated assault, rather than the charged offense. The district court had sufficient evidence to determine that the crucial element of aggravated assault — intent to do bodily harm to the victim — was present. Defendant had raised a cocked gun at a police officer and demanded that the officer leave defendant’s apartment. The officer left, and returned with other officers, who found defendant hiding in the bathroom behind the shower curtain. Defendant shouted that if the officers tried to capture him, he would “blow their heads off.” U.S. v. Madewell, 917 F.2d 301 (7th Cir. 1990), abrogation on other grounds recognized by Fryer v. U.S., 243 F.3d 1004 (7th Cir. 2001).
7th Circuit holds that guidelines apply to conspiracy that continued beyond effective date. (380) The 7th Circuit held that the sentencing guidelines applied to defendant’s conviction for conspiracy, which began prior to but continued beyond November 1, 1987. Defendant contended that this was unfair because his co-defendant was not sentenced under the guidelines and received a less severe sentence. The 7th Circuit found that since defendant failed to present any facts or legal authority for this position, he waived this argument. Moreover, the court had no appellate jurisdiction to review the sentence of a defendant properly sentenced on the ground that a co-defendant was improperly sentenced. U.S. v. Fazio, 914 F.2d 950 (7th Cir. 1990).
7th Circuit affirms finding that conspiracy involved more than 100 kilos of marijuana. (380) Defendant was sentenced at a base offense level of 26 after being found guilty of conspiracy involving 100 kilos of marijuana. Defendant argued that he was only involved with 50 kilos, the amount found in his possession at the time of his arrest. The 7th Circuit disagreed. Defendant had stipulated that if a conspiracy was found, it involved more than 100 kilos. The jury rejected defendant’s argument that he was only involved in a one time transport and found him guilty of conspiracy. Thus, the finding that the conspiracy involved more than 100 kilograms was correct. U.S. v. Garcia, 897 F.2d 1413 (7th Cir. 1990).
7th Circuit rules that relevant conduct for conspirator includes all reasonably foreseeable drug transactions. (380) Under U.S.S.G. 1B1.3, a person who acts in concert with others “whether or not charged as a conspiracy,” is accountable for “conduct of others in furtherance of the execution of the jointly-undertaken criminal activity that was reasonably foreseeable by the defendant.” Thus, the 7th Circuit upheld the trial court’s ruling that defendant, as a member of the conspiracy for nine months, was responsible for the drug activities of his coconspirators. U.S. v. Guerrero, 894 F.2d 261 (7th Cir. 1990).
8th Circuit approves cross reference for obstructing criminal prosecution. (380) Defendant was a member of a prescription drug trafficking conspiracy. While in jail awaiting sentencing, she assaulted co-conspirator Vos, who had cooperated with the government. Defendant was convicted of witness retaliation. The Eighth Circuit upheld the application of a § 2J1.2(c) cross reference, which directs the sentencing court to apply § 2X3.1 if a defendant’s conduct involved obstructing the prosecution of a criminal offense. Defendant argued that because she attacked Vos after Vos had completed her testimony in the trial of another conspirator, the attack could not have been intended to obstruct the prosecution. The Court rejected an almost identical argument in U.S. v. Gallimore, 491 F.3d 871 (8th Cir. 2007). The commentary for § 2J1.2 lists “causing a witness bodily injury … in retaliation for providing testimony … in a federal proceeding” as an example of an obstruction of justice warranting a cross reference to § 2X3.1. Defendant intentionally attacked and injured Vos for testifying in a federal trial. The district court did not err in applying the § 2J1.2(c)(1) cross reference to calculate her guideline sentencing range. U.S. v. Muckle, __ F.3d __ (8th Cir. May 27, 2014) No. 13-2744.
8th Circuit agrees that inmates were about to complete all acts necessary for escape. (380) Defendant and his cellmate in a county jail made plans to escape from the jail. They used hacksaw blades to cut metal bars off the window of their cell. They then used oil soaked cloth to burn a three-inch hole through the plexiglass that covered the window. The escape attempt was discovered the next morning. Defendant pled guilty to aiding and assisting another in an attempted escape from federal custody. He argued that he was entitled to a three-level reduction under § 2X1.1(b)(1) because he did not complete the escape. The Eighth Circuit upheld the denial of the reduction, ruling that the district court did not clearly err in finding that defendant was about to complete all of the acts necessary for the escape but for the discovery of the escape attempt. According to a deputy, defendant and his cellmate could have removed the plexiglass panel in 30-35 minutes using the hacksaw blade hidden in the wall of their cell once they had burned the three-inch hole. Their cell contained bed sheets tied together that they could have then used to lower themselves to the ground from their second-story window. The court did not clearly err in concluding that the defendant was about to complete all the acts necessary to escape but for apprehension by corrections officers. U.S. v. Rill, 592 F.3d 863 (8th Cir. 2010).
8th Circuit upholds use of § 2J1.2 cross-reference. (380) Defendant and another man assaulted Carter in retaliation for his grand jury testimony against defendant. The grand jury was investigating defendant’s drug trafficking. Defendant pled guilty to retaliating against a grand jury witness in violation of 18 U.S.C. § 1513(b)(1) and (2). Section 2J1.2(c) provides that if an offense involved obstructing the investigation or prosecution of another offense, the defendant’s offense level should be calculated under § 2X3.1, the accessory after the fact guideline. The Eighth Circuit upheld the application of the § 2J1.2(c) cross-reference. The government was not required to prove that defendant’s assault on Carter actually made the victim or any other witness less likely to testify in the drug case. The Sentencing Commission was concerned that retaliation against a witness for past testimony was likely to interfere with the effective administration of justice. The fact that the assault took place before the victim had an opportunity to testify at the underlying drug trail increased the likelihood that it would impact future criminal proceedings. U.S. v. Gallimore, 491 F.3d 871 (8th Cir. 2007).
8th Circuit holds that fraud was completed offense even though full loss not accomplished. (380) Defendant stole copyrighted software from his employer (a software manufacturer), sold the software on eBay, and delivered the software to purchasers through the U.S. mails. The Eighth Circuit rejected defendant’s claim that he was entitled to a reduction under § 2X1.1(b)(1) for a partially completed offense. Although defendant had not brought about the full amount of loss intended by his fraudulent scheme, the fraud was a completed substantive offense. U.S. v. Susel, 429 F.3d 782 (8th Cir. 2005).
8th Circuit rejects attempt guideline, even though defendant withdrew firearm purchase order. (380) Defendant applied to purchase a handgun from a federally licensed dealer, falsely representing that he was not subject to a domestic protection order and had not previously been convicted of a misdemeanor domestic violence offense. Although defendant returned to the dealer and cancelled the order during the federally mandated waiting period, he was charged with and pled guilty to violating 18 U.S.C. § 922(a)(6), making a false written statement in connection with acquisition or attempted acquisition of a gun. The Eighth Circuit held that defendant was properly sentenced under § 2K2.1, the firearm guideline, rather than § 2X1.1, the attempt guideline. Section 2K2.1 applies to all § 922(A)(6) offenses. The § 922(a)(6) offense was complete when defendant submitted the materially false application to the gun dealer. U.S. v. Appleby, 380 F.3d 365 (8th Cir. 2004).
8th Circuit holds that additional robberies not charged in indictment were part of charged conspiracy. (380) Defendant was charged with one count of conspiracy to commit bank robbery. Although the indictment only listed two bank robberies as overt acts, the jury specifically found that defendant had participated in a conspiracy involving five bank robberies. Under U.S.S.G. § 1B1.2(d), the district court then treated each of the five bank robberies as separate counts of conspiracy. Defendant argued that this was improper because the indictment only alleged his participation in two bank robberies. The Eighth Circuit found no error, since the five robberies fell within the temporal and substantive scope of the charged conspiracy. In a charge of conspiracy, the government is not limited to proof of the overt acts charged in the indictment, and a defendant may be held responsible for any of the acts of the conspiracy. U.S. v. Coleman, 349 F.3d 1077 (8th Cir. 2003).
8th Circuit holds that reduction for uncompleted substantive offense was not applicable. (380) Cooperating witnesses informed defendant, a police officer, that potential robbery targets were in a parking lot awaiting a drug delivery. Defendant approached the targets’ car while he was on duty, but a local officer who happened to be in the vicinity forced defendant to treat the matter as a motorist assistance stop. Defendant then decided to enlist his brother to her commit the robbery. Because authorities knew the brother was a potentially violent person, the undercover agents posing as targets were recalled. After they left the parking lot, authorities observed the brother driving in the parking lot and through the surrounding areas. Defendant was convicted of conspiracy to commit robbery. The Eighth Circuit held that the district court properly refused to grant defendant a reduction under § 2X1.1(b)(2) which applies to conspiracy convictions unless the defendant or co-conspirator completed all of the acts they believed necessary for the successful completion of the substantive offense or were about to complete all such acts but for the apprehension or interruption. Here, the only activity that remained uncompleted was the “go-ahead” call from defendant to his brother and the actual robbery itself. The brother was in the vicinity with a shotgun and circled the area looking for the targets. Removal of the targets due to safety concerns was clearly an event beyond conspirators’ control. U.S. v. McGarr, 330 F.3d 1048 (8th Cir. 2003).
8th Circuit says life sentence proper even if defendant only acted as aider and abettor in murder. (380) Defendant was convicted of various drug crimes, including killing another person with a firearm during a drug trafficking crime. The district court sentenced defendant to life imprisonment on the murder counts. Defendant argued that his sentence should be reduced because at most he only aided and abetted Jackson in committing the murder. However, even if it accepted defendant’s argument that he was not the shooter, the Eighth Circuit found that defendant would not be entitled to a lesser sentence. The guidelines provide that aiders and abettors receive the same offense level as if convicted as a principal, § 2X2.1, and there was no evidence that would support a mitigating role reduction. U.S. v. Miller, 283 F.3d 907 (8th Cir. 2002).
8th Circuit rejects downward departure based on minor role, lack of weapon, and aberrant behavior. (380) Defendant committed perjury before a grand jury investigating a bank robbery committed by two friends. The court sentenced her as an accessory after the fact because she committed perjury “in respect to a criminal offense.” The district court made a three-level downward departure based on (1) defendant’s minimal participation in the crime; (2) the lack of evidence that a weapon was used in the offense; and (3) aberrant behavior. The Eighth Circuit reversed. A defendant’s mitigating role in an offense is already taken into account by USSG § 3B1.2. Moreover, a defendant who commits perjury can never be a minor or minimal participant in the crime of perjury. Although defendant may have only been minimally involved in the bank robbery, the guidelines contemplate that the defendant be sentenced based on the gravity of the underlying crime, less six levels. See § 2X3.1. The court’s reliance on the lack of a weapon was puzzling, given (1) it was undisputed at defendant’s sentencing that weapons were used in the robbery, and (2) the district court applied a five-level increase because defendant either knew, or reasonably should have known, that weapons had been used during the robbery. Finally, defendant’s perjury was not aberrant behavior. Given her criminal record, the perjury could not “be characterized as a marked deviation from an otherwise law-abiding existence.” U.S. v. Jimenez, 282 F.3d 597 (8th Cir. 2002).
8th Circuit holds that intended offense was established with reasonable certainty. (380) Defendant conspired with Sanders to steal money orders from two post offices. Sanders went to authorities, and recorded numerous conversations between himself and defendant. Those recordings indicated that defendant planned to incapacitate the postmasters with a concoction of pure grain alcohol and Valium, shoot any police officers who responded to the scene, and escape with over $50,000 in money orders. Defendant was arrested before he could effectuate his plan. He pled guilty to attempted robbery. Based on defendant’s stated intentions, the district court applied sentencing increases for possession of a firearm, injury to a victim, and a loss exceeding $50,000. Defendant challenged these sentencing increases, arguing that his intended offense could not be established with “reasonable certainty.” He noted that no firearms, grain alcohol, or Valium were ever found in searches of his property, and no evidence was introduced to show that his alcohol and Valium combination would cause injury to someone. The Eighth Circuit found no error. Note 2 to § 2X1.1 expressly approves enhancements for specific offense characteristics that are actually intended, although not carried out. Defendant’s own words revealed his actual intent to steal and to harm, and that he did not consummate his plan was a fortuity. U.S. v. Simmons, 260 F.3d 937 (8th Cir. 2001).
8th Circuit holds misprision defendant accountable for all drugs possessed in underlying offense. (380) Under § 2X4.1(a), the base offense level for misprision of felony is nine levels below the offense level for the underlying offense, but in no case higher than 19. The district judge set defendant’s offense level at 19, since the offense level for the underlying offense was 38 because Booker possessed 1.694 kilograms of cocaine base. Defendant objected that there was no proof that he reasonably should have known the quantity of drugs that Booker had hidden in his truck. Note 10 to § 1B1.3 says that a defendant convicted of misprision “is accountable [for] all conduct relevant to determining the offense level for the underlying offense that was known, or reasonably should have been known, by the defendant.” The Eighth Circuit found that this note applies only to specific offense conduct. Section 2X4.1(a) explicitly states that the level of the underlying offense is the first relevant datum in determining the base offense level applicable to a misprision conviction. Note 1 to that section merely directs the court to add to that offense level “any applicable specific offense characteristics that were known, or reasonably should have been known, by the defendant.” The district court correctly applied the guidelines to the facts of this case. U.S. v. Booker, 186 F.3d 1004 (8th Cir. 1999).
8th Circuit finds defendant did all he believed necessary to possess incendiary device. (380) Defendant sought the assistance of an undercover informant to injure a man with whom he was having a dispute and his property. They discussed burning the man’s house and blowing up his car. Defendant pled guilty to possessing an incendiary device. He argued that he was entitled to a § 2X1.1(b)(2) reduction because he had not completed the acts necessary for the successful completion of the substantive offense, which he characterized as arson or murder. The Eighth Circuit held that the underlying offense was possession of an incendiary device, and not arson or murder. By hiring the man to blow up the victim’s car, defendant did all he believed was necessary for completion of the offense. U.S. v. Brown, 74 F.3d 891 (8th Cir. 1996).
8th Circuit rejects § 2X1.1 reduction where postal inspectors prevented successful completion of scheme. (380) Defendant was involved in a conspiracy that obtained stolen blank Treasury checks and cashed some of them successfully. He argued that he should have received a reduction under § 2X1.1 for a partially completed offense. The Eighth Circuit held that under U.S. v. Johnson, 962 F.2d 1308 (8th Cir. 1992), defendant was not entitled to the reduction because the conspirators would have completed all necessary acts but for their apprehension or interruption by events beyond their control. Defendants intended to cash stolen checks that would have caused a loss of over $60,000,000 and they would have continued to pursue their scheme but for the intervention of postal inspectors. U.S. v. Penson, 62 F.3d 242 (8th Cir. 1995).
8th Circuit upholds cross-reference from firearms to aggravated assault guideline. (380) Defendant was convicted of being a felon in possession of a firearm, but based on the cross references in §2K2.1(c)(2) and §2X1.1, he was sentenced under §2A2.2, the aggravated assault guideline. The 8th Circuit rejected defendant’s claim that it violated his rights to due process and to a jury trial to apply the sentencing provisions for a crime with which he had not been charged. Consideration of uncharged conduct in sentencing does not violate a defendant’s constitutional rights if the government proves the conduct by a preponderance of the evidence. The court also rejected defendant’s claim that under the 1991 version of note 2 to §2X1.1, a prerequisite for applying §2X1.1 is a conviction for aggravated assault. When read in context, this commentary applies only if §2X1.1 is applied directly, rather than as a cross-reference from §2K2.1. Senior Judge Bright dissented. Judge Gibson agreed with the portion of Judge Bright’s dissent which stated that the guideline system “cries out for change.” U.S. v. Smith, 997 F.2d 396 (8th Cir. 1993).
8th Circuit applies section 2D1.4, not 2X1.1, to drug conspiracy. (380) Defendant was convicted of a conspiracy involving a controlled substance. The 8th Circuit rejected defendant’s argument that he should have received a reduction under section 2X1.1(b)(2) for an uncompleted conspiracy. Section 2X1.1 does not apply if a conspiracy is expressly covered by another guideline section. A conspiracy involving a controlled substance is expressly covered by section 2D1.4, under which defendant was properly sentenced. U.S. v. Adipietro, 983 F.2d 1468 (8th Cir. 1993).
8th Circuit finds that conspiracy was “completed.” (380) Defendant assisted two conspirators who burned down a house so that the homeowner could collect fire insurance proceeds. He pled guilty to conspiracy to commit mail fraud. The conspiracy guideline, section 2X1.1(b)(2), provides for a three-level reduction, unless the defendant or a co-conspirator completed all the acts necessary to successfully complete the offense. Defendant argued that in denying him this reduction, the district court erroneously focused on the arson rather than the mail fraud as the “offense.” The 8th Circuit agreed, but found the error harmless. Defendant was not entitled to the reduction because once the homeowner sent in the claim for the proceeds under her fire insurance policy, she had completed all of the acts the conspirators believed necessary for successful completion of the mail fraud. U.S. v. Westerman, 973 F.2d 1422 (8th Cir. 1992).
8th Circuit affirms increase in offense level where defendant conspired to rob two banks. (380) The 8th Circuit held that defendant’s offense level was properly increased to reflect the fact that the conspiracy of which he was a member conspired to rob two banks, not just one. Although defendant was only convicted of one count of conspiracy, guideline section 1B1.2(d) states that a conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense that the defendant conspired to commit. U.S. v. Johnson, 962 F.2d 1308 (8th Cir. 1992).
8th Circuit affirms that defendant was not entitled to reduction for uncompleted conspiracy. (380) Guideline section 2X1.1(b)(2) provides that for conspiracies not covered by a specific offense guideline, a three level reduction should be given unless the circumstances demonstrate that the conspirators were about to complete all necessary acts but for apprehension or interruption by some similar event beyond their control. The 8th Circuit held that defendant was not entitled to this reduction because his intended bank robberies would have been completed but for the intervention of law enforcement officials. U.S. v. Johnson, 962 F.2d 1308 (8th Cir. 1992).
8th Circuit upholds inclusion of drugs distributed by conspiracy after defendant moved to California. (380) From January to September 1987, defendant and three co-conspirators were involved in drug-related activities in Lincoln, Nebraska. In September 1987, defendant and his fiancée abruptly moved to California. At trial defendant testified that they moved to escape the drug scene in Lincoln and to avoid a debt he had incurred. After the move, he made occasional phone calls to his co-conspirators in Lincoln, but did not actively participate in the distribution of cocaine. The 8th Circuit upheld the application of the guidelines to his offense, and held him accountable for certain amounts of cocaine distributed by the conspiracy after he left for California. Conspiracy is a continuing offense, and a defendant may be sentenced under the guidelines for his participation in any conspiracy that continued past November 1, 1987, even if the defendant performed no overt act in furtherance of the conspiracy after this date. The district court found that although the exact amount of cocaine distributed after defendant’s move was not foreseeable, it was reasonably foreseeable that the conspiracy would continue to receive cocaine after defendant’s move, and that such amounts would be equal to at least three times the amounts previously transferred by the conspiracy. U.S. v. Olderbak, 961 F.2d 756 (8th Cir. 1992).
8th Circuit rules selling assets, moving to another state, and burying drug lab equipment did not constitute withdrawal from conspiracy. (380) The 8th Circuit rejected defendant’s claim that he withdrew from a drug conspiracy prior to the effective date of the guidelines. A defendant must do more than show no conspiracy activity on his part after the cut-off date. He has the burden of showing that he affirmatively disavowed the conspiracy, either by making a clean breast to the authorities or by communicating his withdrawal to his co-conspirators. Here, defendant sold his farm equipment and livestock and moved to another state in September 1987 because the local authorities were on his trail and he was concerned the federal government would seize his assets. He buried the drug lab equipment on the property, and later dug up the equipment and burned it. These were not acts of affirmative withdrawal, but were designed to thwart the authorities and probably made it more likely the conspiracy would continue. Moreover, after moving, defendant drove his brother to a meeting with another conspirator in which the conspirator threatened to kill the brother if he cooperated with the police. U.S. v. Askew, 958 F.2d 806 (8th Cir. 1992).
8th Circuit upholds application of guidelines to conspiracy that continued after effective date of guidelines. (380) Defendants argued that the guidelines did not apply to them. The only two overt acts in furtherance of the conspiracy alleged to have taken place after the guidelines took effect were those acts which served as the basis for substantive offenses charged in Count IV, of which they were acquitted. The 8th Circuit rejected defendants’ argument, since defendants were convicted of Count I of the indictment, which expressly charged that the conspiracy continued until May 1988. U.S. v. ABC, Inc., 952 F.2d 155 (8th Cir. 1991).
8th Circuit reiterates that guidelines apply to “straddle” conspiracies. (380) Defendant argued that the district court erred in applying the sentencing guidelines to his crime because the heart of the conspiracy occurred prior to the effective date of the guidelines. The 8th Circuit rejected this argument, noting that the law in the 8th Circuit is that if a conspiracy straddles the effective date of the guidelines, the guidelines apply. U.S. v. Smith, 909 F.2d 1164 (8th Cir. 1990).
8th Circuit rules that guidelines apply to conspiracy that ended after Nov. 1, 1987. (380) Defendant argued that sentencing him under the guidelines violated the ex post facto clause of the Constitution because there was no evidence of conspiratorial activity after Nov. 1, 1987 — the effective date of the guidelines. The 8th Circuit rejected the argument, noting that the jury found in a special interrogatory that the conspiracy continued beyond Nov. 1, 1987. In addition, the district court found that the conspiracy continued until May 12, 1988. The court upheld the district court’s finding as not clearly erroneous. U.S. v. Wayne, 903 F.2d 1188 (8th Cir. 1990).
8th Circuit holds that buyer of drugs is not responsible for other amounts possessed by supplier. (380) Defendant was convicted of various drug related offenses and conspiracy to distribute drugs. At sentencing, the district court included in defendant’s base offense level 8 ounces of methamphetamine that his supplier (and co-conspirator) possessed for sale to others. The 8th Circuit reversed, holding that “[s]imple knowledge that the supplier supplies other persons is not enough .ÿ.ÿ. to assess all quantities distributed by the supplier to each person who purchased drugs from the supplier.” U.S. v. North, 900 F.2d 131 (8th Cir. 1990).
8th Circuit rules guidelines apply to conspiracies beginning before, but continuing after effective date of guidelines. (380) Drug defendant appealed the application of the guidelines to his conviction for a drug conspiracy. The 8th Circuit rejected his challenge. The defendant and the government had stipulated that the conspiracy occurred during the first week of October and continued until his arrest on November 24, 1987. The court held that application of the guidelines to the conspiracy would not violate the ex post facto clause, and the enabling statutes mandated application of the guidelines to continuing offenses. U.S. v. Tharp, 892 F.2d 691 (8th Cir. 1989).
8th Circuit holds it was foreseeable to drug conspirator that his co-conspirator would accept additional quantities of drugs. (380) A drug conspirator appealed the trial court’s determination that 8 ounces of cocaine were involved in the distribution scheme. He claimed that he was unaware that his co-defendant had accepted an additional 2 ounces from a police officer and therefore his conduct was not reasonably foreseeable. The 8th Circuit disagreed. The evidence established that the defendant willingly accepted the 8 oz. bag and did not question its weight or verify the amount he was purchasing. The defendant failed to convince the court that his co-conspirators activities were unforeseeable to him. U.S. v. O’Meara, 895 F.2d 1216 (8th Cir. 1990).
8th Circuit rules defendant who was part of conspiracy when guidelines became effective is subject to guideline sentence. (380) Defendant argued that because he joined a conspiracy which began before, but continued after the guidelines became effective, he should have been sentenced as a conspirator who withdrew prior to the effective date of the guidelines. The 8th Circuit held this argument to be meritless, given that the defendant pled guilty to a conspiracy count which charged him with a conspiracy continuing until January 1988 and he admitted to committing an overt act in the same month. U.S. v. Walker, 885 F.2d 1353 (8th Cir. 1989).
8th Circuit rules that drug conspiracy which continues after Nov. 1, 1987 is punishable under the guidelines. (380) Convicted drug conspirator claimed that the district court erroneously applied the guidelines to a conspiracy which was formed prior to Nov. 1, 1987. The 8th Circuit disagreed, holding that a drug conspiracy which continues after that date is punishable under the guidelines. U.S. v. Stewart, 878 F.2d 256 (8th Cir. 1989).
8th Circuit rules that drug conspiracy which continues after Nov. 1, 1987 is punishable under the guidelines. (380) Convicted drug conspirator claimed that the district court erroneously applied the guidelines to a conspiracy which was formed prior to Nov. 1, 1987. The 8th Circuit disagreed, holding that a drug conspiracy which continues after that date is punishable under the guidelines. U.S. v. Stewart, 878 F.2d 256 (8th Cir. 1989).
9th Circuit allows use of a minor to be attributed to another for purpose of misprision offense. (380) Defendant pled guilty to misprision of a felony after she failed to intervene when her husband beat his six-year-old daughter to death. After the girl died, defendant’s husband induced his 13-year-old son to lie to investigators by saying that the girl had fallen out of a tree. The district court increased defendant’s sentence by 2 levels under §3B1.4 for use of a minor. On appeal, the Ninth Circuit affirmed, noting that the misprision guideline, § 2X4.1, directs the court to determine the offense level for the underlying offense exactly as it would have had the defendant been convicted of that offense. The district court properly found that defendant knew or should have known that her husband would use the 13-year-old boy to lie to authorities, because he told defendant to tell the same lie. U.S. v. Goodbear, 676 F.3d 904 (9th Cir. 2012).
9th Circuit holds that exception for partially completed offense does not apply to wire fraud. (380) Defendant conceived a fraudulent scheme to obtain 12 specialized computers disks used to manufacture semiconductors without paying for them. The seller agreed to ship the disks in three shipments of four each, with each shipment to follow after the defendant had paid for the prior shipment. Defendant was arrested shortly after he took delivery of what he believed to be the first four disks. Based on that scheme, defendant pleaded guilty to wire fraud. Defendant argued that the court should apply Application Note 17 to § 2B1.1, which requires use of § 2X1.1 for “a partially completed offense,” and that under that guideline the loss for his offense would be calculated based on four of the disks. The Ninth Circuit rejected this argument, holding that defendant’s wire fraud offense was complete when defendant made a wire transmission in furtherance of the scheme to obtain 12 disks and that the district court therefore properly calculated defendant’s loss using the value of 12 disks. U.S. v. Tulaner, 512 F.3d 576 (9th Cir. 2008).
9th Circuit says jointly undertaken relevant conduct must be reasonably foreseeable and in furtherance of conspiracy. (380) In 1992, the relevant conduct guideline, § 1B1.3(a)(1)(B), was amended to provide that a defendant’s offense level should be determined based on his own acts and, in the case of jointly undertaken criminal activity, all reasonably foreseeable acts of others in furtherance of the jointly undertaken criminal activity that occurred during the offense. The Ninth Circuit held that to constitute relevant conduct under this amendment, conduct must be both reasonably foreseeable and in furtherance of the jointly undertaken criminal activity. The court disavowed an earlier decision, U.S. v. Gutierrez-Hernandez, 94 F.3d 582 (9th Cir. 1996), which held that each conspirator was accountable for conduct that he reasonably foresaw or that fell within the scope of his particular agreement. U.S. v. Ortiz, 362 F.3d 1274 (9th Cir. 2004).
9th Circuit holds that conspiracy to take multiple hostages should be treated as multiple offenses for grouping. (380) Defendant was convicted of conspiracy to commit hostage taking, in violation of 18 U.S.C. § 1203. The evidence at trial showed that he took 23 illegal aliens hostage and held them for ransom. Guideline 1B1.2 provides that a conspiracy to commit multiple offenses should be treated as a separate count of conspiracy for each offense that the defendant conspired to commit. The grouping rules, § 3D1.2, contain a similar provision. The Ninth Circuit held that a conspiracy to take several hostages should be treated as separate offenses committed against separate victims for purposes of §§ 1B1.2 and 3D1.2. U.S. v. Melchor-Zaragoza, 351 F.3d 925 (9th Cir. 2003).
9th Circuit rejects reduction for not substantially completing object offense. (380) The conspiracy guideline, § 2X1.1(b)(2), provides for a three-level reduction if a defendant convicted of conspiracy did not substantially complete the offense that was the object of the conspiracy. The Ninth Circuit held that a defendant convicted only of conspiracy to commit money laundering was not entitled to that reduction because two of his co-conspirators completed the substantive money laundering offense. U.S. v. Johnson, 297 F.3d 845 (9th Cir. 2002).
9th Circuit denies “attempt” reduction where defendant completed all acts necessary for fraud. (380) In this bank fraud case, defendant argued that the district court should have reduced his sentence by three levels under § 2X1.1 because the bank never credited his account for the bad checks. Thus, he was unable to obtain the money he “deposited.” The Ninth Circuit found no merit in this argument, because § 2X1.1 “clearly provides that the reduction is unavailable if the defendant completed all the acts he believed necessary to commit the substantive offense, or was about to do so when the completion was interrupted.” Here, defendant was about to complete all the acts he believed necessary when he was interrupted by the bank’s safeguards. U.S. v. King, 200 F.3d 1207 (9th Cir. 1999).
9th Circuit holds guideline for attempted re-entry after deportation is § 2L1.1, not § 2X1.1. (380) Defendant was convicted of attempted entry into the United States after deportation, in violation of 8 U.S.C. § 1326(a). He argued that the district court should have sentenced him under the attempt guideline, § 2X1.1, rather than the guideline for re-entry after deportation, § 2L1.2. The Ninth Circuit rejected the argument, holding that under the plain language of the statute, attempting to enter the United States in violation of § 1326(a) is a separate substantive crime. Thus, an individual can violate § 1326 in three ways: (1) by entering, (2) by attempting to enter or (3) by being found in the United States. Every other circuit that has considered the issue agrees that § 1326 contemplates three distinct substantive offenses. Thus, a previously deported alien violates § 1326 when he attempts to enter the United States, and guideline § 2L1.2 is the applicable guideline. U.S. v. Corrales-Beltran, 192 F.3d 1311 (9th Cir. 1999).
9th Circuit says attempt guideline does not apply where statute expressly covers attempts. (380) Defendant argued that he was entitled to a three-level reduction under guideline § 2X1.1 for attempting to transport undocumented aliens in violation of 8 U.S.C. § 1324(a). However, by its terms, § 2X1.1 does not apply to attempts that are covered by a specific guideline. In this case, defendant’s attempted transportation of aliens was expressly covered by the statute, and therefore it was covered by guideline § 2L1.1. Under U.S. v. Van Boom, 961 F.2d 145, 147 (9th Cir. 1992); U.S. v. Koenig, 952 F.2d 267, 272 (9th Cir. 1991), it did not matter that § 2L1.1 was not listed in § 2X1.1 among the “[o]ffense guidelines that expressly cover attempts,” because the statute specifically included attempts. U.S. v. Hernandez-Franco, 189 F.3d 1151 (9th Cir. 1999).
9th Circuit uses tax guideline, not obstruction guideline, for obstructing tax collection. (380) Defendants were convicted of conspiracy under 18 U.S.C. § 371 and obstruction of IRS proceedings under 18 U.S.C. § 1505. Guideline section 1B1.2 instructs the court to determine “the offense guideline section … most applicable to the offense of conviction.” The accompanying commentary refers to the guidelines’ statutory index in Appendix A. However, Appendix A permits the court in an atypical case to use “the guideline section most applicable to the nature of the offense conduct charged.” In the present case, the district court properly sentenced the defendants under § 2T1.9, which covers conspiracies to “impede, impair, obstruct or defeat tax.” See § 2X1.1(c)(1) (“When an attempt, solicitation, or conspiracy is expressly covered by a clear offense guideline section, apply that guideline section.”) The Ninth Circuit agreed that § 2J1.2 did not consider the amount of tax liability the defendants attempted to obstruct or the sometimes violent nature of the conspiracy. U.S. v. Hopper, 177 F.3d 824 (9th Cir. 1999).
9th Circuit requires higher sentence for conspiracy with more than one object. (380) Guideline section 1B1.2(d) says that a “conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense the defendant conspired to commit.” Defendant argued that this guideline was unconstitutional based on dicta in U.S. v. Garcia, 37 F.3d 1359, 1371 n.4 (9th Cir. 1994), which suggested that the object of the conspiracy was an essential element that could only be found by the jury. The Ninth Circuit held that recent Supreme Court precedent appears to defeat this argument. In Edwards v. U.S., 118 S.Ct. 1475, 1477 (1998), the Supreme Court held that as long as the sentencing court does not exceed the maximum statutory sentence (based on the lesser object offense) of a multi-object conspiracy conviction, the court may consider conduct for which the defendant was never charged or was acquitted. Defendant’s argument that § 1B1.2(d) violated her Sixth Amendment right to a jury trial was unconvincing in light of Griffin v. U.S., 502 U.S. 46 (1991), which held that a general guilty verdict on a multiple-object conspiracy was legally supportable if the jury could find that at least one of the objects supported the conspiracy charge. No due process violation occurs because § 1B1.2(d) requires the sentencing court to apply a “beyond a reasonable doubt” standard of proof to determine the objects of the conspiracy. U.S. v. Jackson, 167 F.3d 1280 (9th Cir. 1999).
9th Circuit uses “categorical approach” to find maximum sentence for soliciting murder for hire. (380) Defendant was convicted of solicitation of murder for hire, in violation of 18 U.S.C. § 373. The underlying felony – murder for hire – provides a sliding scale of punishment that depends on the outcome of the intended crime. 18 U.S.C. § 1958. If no injury occurs, there is a ten-year maximum. If personal injury results, the maximum is 20 years, and if death results, the maximum is death or life imprisonment. Defendant argued that since the victim was unharmed, the maximum sentence under § 1958 was ten years, and thus the maximum for solicitation under § 373 was five years. The 9th Circuit rejected this argument, noting that § 373 takes as its reference point “the crime solicited,” and imposes a maximum sentence of 20 years if “the crime solicited” is punishable by life imprisonment or death. This “categorical approach” is consistent with the structure of the statute, and with the legislative history. U.S. v. Devorkin, 159 F.3d 465 (9th Cir. 1998).
9th Circuit requires 3-level reduction for “attempt” where crime was not complete. (380) Defendant, a driver for a trucking company, offered a security guard $15,000 to allow him to steal cargo containers from the trucking company’s lot. The guard agreed and then contacted the FBI. Later, with the guard’s help, defendant and the co-defendant broke into nine containers but decided that the contents probably could not be sold. When a new shipment arrived, they broke into the containers but were unable to contact their “boss” and therefore did not steal any of the merchandise. The next night, they opened several containers, telephoned the boss, and gathered samples to take to him. En route to the boss, they were arrested. Defendant pled guilty to conspiracy, and the district court refused to reduce the sentence by three levels for attempt under § 2X1.1(b)(2). On appeal, the Ninth Circuit reversed, holding that a defendant is entitled to a reduction “unless the remaining steps to be taken in the commission of a crime are so insubstantial that the commission of the substantive offense is inevitable, barring an unforeseen occurrence that frustrates its completion.” Twice before, the defendant had abandoned plans to steal goods, and it was unclear whether the “boss” would have authorized the theft on the third occasion. U.S. v. Martinez-Martinez, 156 F.3d 936 (9th Cir. 1998).
9th Circuit rejects “attempt” reduction for telemarketing fraud. (380) The telemarketers argued that their offense levels should have been reduced because at least some of their intended frauds were only attempts in which they did not actually succeed in obtaining money from the victims. The Ninth Circuit rejected the argument, noting that each completed telemarketing call was a “separate completed fraud offense.” Certainly, if the money came in it would be the proceeds of the fraud. “But with or without the money the offense was complete.” The intended loss was also complete at that point. Moreover as a practical matter, the district court found that by the time a sale was entered into the sales log, the fraud was completed and the only question was whether the money would flow in. Accordingly, the telemarketers were not entitled to have their offense levels reduced by three levels for attempt. U.S. v. Blitz, 151 F.3d 1002 (9th Cir. 1998).
9th Circuit applies attempted murder cross-reference in felon-in-possession case. (380) Defendant helped a prisoner escape by shooting a deputy in the face, and then taking the deputy’s gun. He did not shoot the deputy’s gun, but “used it for a back up.” He was arrested in possession of the deputy’s gun, (the other gun was never found), and was convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g). At sentencing, the court applied the cross-reference in § 5K2.1(c)(1), and sentenced defendant under the attempted murder guideline, § 2A2.1. On appeal, defendant challenged the use of the cross-reference because he did not “use” the deputy’s gun in the attempted murder of the deputy. The Ninth Circuit rejected this argument, holding that the deputy’s gun enabled him “to complete the commission of the attempted murder by having a loaded gun in his hands as he made his escape from the scene of the crime.” The court added that the government need not show that the gun traveled in interstate commerce in order to use it to enhance a sentence. U.S. v. Gallant, 136 F.3d 1246 (9th Cir. 1998).
9th Circuit finds that defendant completed all acts necessary for the offense. (380) Guideline § 2X1.1(b) provides for a three level reduction for an attempt or conspiracy “unless the defendant completed all the acts the defendant believed necessary for successful completion of the substantive offense.” In the present case, defendant hacked into the computers of Heller Financial and obtained the codes to make a wire transfer. He then telephoned two bomb threats as a distraction, and while the building was evacuated, he executed a $150,000 wire transfer from Heller to an account at Union Bank. The next day Heller discovered the transfer and managed to seize the $150,000 before it was removed from Union Bank. The district court found that defendant had completed all the acts necessary for the crime, and on appeal the Ninth Circuit affirmed. U.S. v. Petersen, 98 F.3d 502 (9th Cir. 1996).
9th Circuit finds offense substantially complete even though government agents were involved. (380) Defendant spoke with a friend about a scheme to use credit card numbers of old customers. The friend tape recorded the conversation, gave it to the Secret Service and then cooperated with the government. After detailed arrangements were made and defendant was told that the friend had several computer terminals working, defendant arrived with a list of additional credit card numbers. He was arrested and convicted of offenses arising out of the unauthorized use of access devices. Defendant took the position that the substantive offense underlying the conspiracy was not substantially complete and the offense level should have been reduced by 3 levels under §2X1.1(b)(2). The Ninth Circuit found that even though there were no real terminals with real credit or banks involved, defendant had the unauthorized devices and was about to use them to make charges and get money. No reduction is warranted where the substantive offense was substantially completed or interrupted by law enforcement. U.S. v. Yellowe, 24 F.3d 1110 (9th Cir. 1994).
9th Circuit reverses where court used murder, rather than attempted murder cross-reference. (380) In November, 1991, guideline § 2K2.1(c)(1)(B), was amended to punish a felon who possessed a firearm in connection with committing murder, as if he committed homicide. However, before 1991, the guidelines provided for punishment as if the defendant had committed attempted homicide. In this case, the 1990 guidelines applied, and the district court therefore improperly sentenced defendant as if he had committed murder, rather than attempted murder. Accordingly, his sentence was vacated and the case was remanded for resentencing. U.S. v. Thornton, 23 F.3d 1532 (9th Cir. 1994).
9th Circuit applies amended guideline to conspiracy, but application to substantive counts was ex post facto. (380) Agreeing with every other circuit that has addressed the issue, the 9th Circuit held that the amended guidelines applied to the conspiracy that continued after the date of the amendment. However, the court held that it was error to apply the amended guidelines to the substantive drug possession offenses which occurred prior to the effective date of the amended guidelines. The court held that this violated the ex post facto clause, and the case was remanded to the district court to resentence the defendant under the 1988 guidelines on the substantive counts. U.S. v. Castro, 972 F.2d 1107 (9th Cir. 1992).
9th Circuit punishes attempted bank robbery as if defendant had succeeded. (380) Defendant went into the bank pretending to have control of explosive devices that he would detonate if his demands were not met. He demanded $750,000, but an FBI swat team arrested him before he could take possession of the money. He pled guilty to attempted bank robbery, and the district court increased his sentence by three levels under 2B3.1(b)(6)(T) because the offense involved a potential loss of more then $250,000. On appeal, defendant argued that there was no loss. The 9th Circuit rejected the argument, noting that sections 2B3.1 and 2B1.1 lead to the use of section 2X1.1 to determine “the loss” in an attempted robbery. Even though section 2X1.1 does not list bank robbery as one of the attempts that it covers, the 9th Circuit held that the Guidelines’ “general rule” is that “attempts are to be punished as if they had succeeded.” U.S. v. Van Boom, 961 F.2d 145 (9th Cir. 1992).
9th Circuit treats defendant as if he had been convicted on separate count of conspiracy for each object offense. (380) Defendant argued that the court erred in sentencing him for two separate conspiracies because the verdict did not specify whether he was guilty of one or both objects of the conspiracy. The 9th Circuit found no error, noting that section 1B1.2(d) provides that a conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each separate object offense. Commentary Note 5 provides that the court may sentence if, sitting as a trier of fact, it “would convict the defendant of conspiring to commit that object offense.” The 9th Circuit found evidence of separate conspiratorial objectives, and affirmed the sentence for two separate conspiracies. U.S. v. Tham, 960 F.2d 1391 (9th Cir. 1991).
9th Circuit holds that minor participant was not accountable for drugs distributed after arrest. (380) Application note 1 to U.S.S.G. section 1B1.3 notes that “relevant conduct is not necessarily the same for every participant.” Thus even though as a general rule, the fact that a conspirator is taken into custody does not automatically indicate disavowal of the conspiracy, the defendant here was only a “minor” participant. “Once in custody, she was in no position to continue her role as a drug distributor. Thus the 9th Circuit held that it “stretches a legal fiction to the breaking point to hold her accountable for the drugs . . . distributed after May 20, 1989.” U.S. v. Johnson, 956 F.2d 894 (9th Cir. 1992), superseded on other grounds by Guideline as stated in U.S. v. Martinez-Martinez, 369 F.3d 1076 (9th Cir. 2004).
9th Circuit finds attempt guideline 2X1.1 inapplicable in setting fraud offense level under 2F1.1. (380) Defendants were convicted of conspiracy to produce counterfeit ATM cards. They argued that they were entitled to a three-level reduction under section 2X1.1(b) because they had not completed the crime. The 9th Circuit rejected the argument, ruling that section 2X1.1 does not apply if the offense is covered by a more specific guideline, here section 2F1.1. Moreover, the crime of which the defendants were convicted, 18 U.S.C. section 1029, “expressly covers conspiracies and attempts to commit fraud.” The court noted that the Sentencing Commission amended Commentary Note 9 to section 2F1.1 effective November 1, 1991 to require specifically that the “offense level” for “partially completed” offense “be determined in accordance with the provisions of 2X1.1.” But the court ruled that this amendment amounted to a substantive change that was not in effect at the time of sentencing in this case. U.S. v. Koenig, 952 F.2d 267 (9th Cir. 1991).
9th Circuit upholds aggregating amounts of methamphetamine distributed before effective date of mandatory minimum statute. (380) The minimum ten year sentence required under 21 U.S.C. § 841(b)(1) became effective November 18, 1988. The conspiracy for which the defendant received the mandatory minimum sentence began before that date, and he argued that the ex post facto clause prevented aggregating amounts of methamphetamine distributed prior to November 18, 1988. The 9th Circuit rejected the argument, noting that conspiracy is a continuing offense for which the sentencing guidelines contemplate the aggregation of all amounts of contraband involved in the conspiracy. See § 2D1.4, commentary note 1. U.S. v. Inafuku, 938 F.2d 972 (9th Cir. 1991).
9th Circuit holds that conspirator may be sentenced for acts of coconspirators. (380) Defendant was found guilty of a conspiracy to pass counterfeit money. The 9th Circuit held that since “each conspirator is responsible for the acts of his coconspirators committed pursuant to and in furtherance of the conspiracy,” the sentence could properly reflect all the counterfeit currency deemed to be part of the conspiracy. Therefore the $46,000 of counterfeit currency seized from the codefendant was properly considered in determining defendant’s adjusted offense level. U.S. v. Changa, 901 F.2d 741 (9th Cir. 1990).
9th Circuit holds mandatory minimum sentence applies even to aiders and abetters. (380) In U.S. v. Ambrose, 740 F.2d 505, 507-10 (7th Cir. 1984), the Seventh Circuit held that a defendant convicted of aiding and abetting a violation of 21 U.S.C. § 848 (the “kingpin” statute) may not always be subject to the mandatory minimum penalties provided by that statute. Defendant was convicted of 21 U.S.C. 841(a)(1), and argued that it, too, was aimed at “kingpins,” rather than “lieutenants and foot soldiers,” and therefore an aider and abetter of an 841 offense should likewise not be subject to the mandatory minimum sentence. The 9th Circuit rejected the argument, noting that the legislative history of § 841 indicates that Congress intended the mandatory minimums to apply even if the accused had the “lowest possible role” in the narcotics conspiracy. U.S. v. Power, 881 F.2d 733 (9th Cir. 1989).
9th Circuit states that guidelines apply to “continuing offenses” that continue after November 1, 1987. (380) Relying on U.S. v. Frank, 864 F.2d 992, 1008 (3rd Cir. 1988), the 9th Circuit stated that the “Sentencing Guidelines apply to offenses initiated before November 1, 1987, but not completed until after November 1, 1987.” Thus the guidelines applied to defendant’s “continuing” offense of failure to appear in violation of 18 U.S.C. § 3146(a). U.S. v. Gray, 876 F.2d 1411 (9th Cir. 1989).
10th Circuit says most analogous guideline for refusal to testify was obstruction. (380) Defendant, an animal activist, was convicted of criminal contempt for refusing to testify before a grand jury investigating attacks on three mink farms. The guideline for contempt, § 2J1.1, incorporates § 2X5.1, which directs the district court to apply “the most analogous offense guideline.” The district court applied § 2J1.2, Obstruction of Justice. Defendant argued that § 2J1.2 was not the most analogous guideline because he refused to testify as a matter of conscience, rather than out of any intent to impede the grand jury. The Tenth Circuit disagreed, finding that the record supported the district court’s conclusion that defendant was “motivated by a desire to impede prosecution.” Defendant was in frequent communication with Viehl, who was ultimately convicted in two mink farm attacks. He told Viehl that they needed to “get on the same page” after defendant’s first grand jury appearance. He also expressed a disdainful view of grand juries and said he intended to “resist” the grand jury. U.S. v. Halliday, 665 F.3d 129 (10th Cir. 2011).
10th Circuit agrees that defendant’s perjury was “in respect to a criminal investigation.” (380) Defendant gave false testimony before a grand jury investigating the disappearance of a local teenager. He denied confronting and threatening Olsen, a witness who made statements implicating defendant in the disappearance. Defendant pled guilty to one count of perjury. The district court applied §2J1.3(c), which instructs a court to apply the accessory-after-the-fact cross reference in §2X3.1 if the perjury was “in respect to a criminal offense.” The court found that defendant’s perjury was in respect to second-degree murder. The Tenth Circuit found no error. Defendant was the target of the grand jury investigating the teen’s disappearance and was served with a target letter. Defendant was asked about the teen’s “disappearance” and “death.” He was also asked about confronting Olsen for telling authorities that defendant was involved with the disappearance and murder, and he admitted he stopped talking to Olsen because of this issue. Only then did defendant give false statements that gave rise to the perjury charges. U.S. v. Leifson, 568 F.3d 1215 (10th Cir. 2009).
10th Circuit applies cross-reference for perjury during grand jury murder investigation. (380) Defendant was convicted of committing perjury before a grand jury investigating the murder of a 15-year-old girl. Under § 2J1.3(a), when the perjury occurs “in respect to a criminal offense,” the offense level must be computed under § 2X3.1, the guideline for an “Accessory after the Fact.” Defendant argued that the district court should have applied a heightened evidentiary standard to its finding that the § 2X3.1 cross-reference applied. The Tenth Circuit found that the cross reference only required the judge to find that the perjury interfered with a murder investigation, not that defendant committed a murder. The record would have compelled the court to make this finding under any conceivable standard of proof. During his day of testimony, defendant was questioned extensively about prior statements he had made indicating that the victim had been murdered. The evidence clearly showed that defendant perjured himself before a grand jury investigating the victim’s disappearance and whether that disappearance resulted from a murder. U.S. v. Olsen, 519 F.3d 1096 (10th Cir. 2008).
10th Circuit holds that accessory to attempted bank robbery was not entitled to reduction for uncompleted offense. (380) Defendant pled guilty to being an accessory after the fact to attempted armed bank robbery, in violation of 18 U.S.C. § 3. The Tenth Circuit held that defendant was not entitled to the three-level reduction under § 2X1.1(b)(1) for an uncompleted offense. The participants in the bank robbery had completed all of the acts necessary for the successful completion of the substantive offense of attempted bank robbery: they set fire to a school to divert law enforcement, kidnapped the bank president, held the bank president’s wife hostage while forcing the president to drive to the bank, and forced him to attempt to open the safe. The plot was unsuccessful solely because the president was unable to operate the safe’s combination safe. U.S. v. Martinez, 342 F.3d 1203 (10th Cir. 2003).
10th Circuit holds that attempt guideline, rather than robbery guideline, is applicable to attempted robbery. (380) Defendant pled guilty to being an accessory after the fact to attempted armed bank robbery, in violation of 18 U.S.C. § 3. The district court rejected defendant’s claim that the general guideline for attempts, § 2X1.1, should apply, and then implied that because attempted bank robbery is included in the same statute as bank robbery, the court need only look to the guideline section for robbery, § 2B3.1, as the underlying substantive offense. The Tenth Circuit disagreed, ruling that where a defendant is convicted of an attempted crime not itself covered by a specific offense guideline, calculation of the defendant’s sentence must be pursuant to § 2X1.1. Other courts have ruled that where an attempt crimes is included as a substantive offense in a statute covered by a specific offense guideline, that offense guideline, regardless of whether it expressly refers to attempts, should be used instead of § 2X1.1. See, e.g. U.S. v. Hernandez-Franco, 189 F.3d 1151 (9th Cir. 1999); U.S. v. Thomas, 8 F.3d 1552 (11th Cir. 1993). The Tenth Circuit rejected the reasoning of these cases, because § 2X1.1 speaks specifically in terms of relevant guideline sections and not underlying statutes. U.S. v. Martinez, 342 F.3d 1203 (10th Cir. 2003).
10th Circuit holds that cross-reference did not require a conviction before court could use guideline applicable to underlying offense. (380) Defendant and an accomplice burglarized several homes and took several items, including a gun and car. After the car broke down in another state, the two men attacked an elderly couple at their home and stole their truck. Defendant pled guilty to various charges, including transportation of a stolen firearm in interstate commerce. Finding that defendant used or possessed the firearm in connection with another offense, the district court used the cross-reference in § 2K2.1(c)(1)(A) to apply § 2X1.1. Section 2X1.1 directs a court to calculate the offense level “from the guideline for the substantive offense….” Concluding that the robbery of the elderly couple constituted a “substantive offense,” the court calculated defendant’s base offense level from § 2B1.1, the robbery guideline. Defendant argued that the robbery was not a “substantive offense,” under § 2X1.1 because at the time he was sentenced he had not yet been convicted of that crime. This position is contrary to Tenth Circuit precedent. See U.S. v. Willis, 925 F.3d 359 (10th Cir. 1991). A 1991 amendment to § 2X1.1, replacing the term “object offense” with the more commonly used term “substantive offense,” was cosmetic and did not alter the holding of Willis. Thus, the Tenth Circuit rejected defendant’s claim, holding that § 2X1.1, when cross-reference by § 2K2.1(c), does not require a conviction before a district court may use the guideline provision applicable to the conduct underlying the firearm offense. U.S. v. O’Flanagan, 339 F.3d 1229 (8th Cir. 2003).
10th Circuit applies sexual abuse guideline rather than attempt guideline. (380) Defendant was convicted of crossing state lines with the intent to engage in a sexual act with a six-year old girl, in violation of 18 U.S.C. § 2241(c). He challenged the court’s application of § 2A3.1, contending that his offense level should have been calculated under § 2X1.1, the attempt guideline. The Tenth Circuit rejected this argument, which stemmed from the faulty premise that § 2241(c) criminalizes behavior at the point in time of the crossing of the state line. Because at the time of crossing, defendant made no attempt to engage in a sexual act with a child, he believed § 2X1.1 was the applicable guideline. However, defendant was not convicted of crossing state line while holding impure thoughts, but rather, he was convicted of the crossing of state line with the intent to engage or attempt to engage in a sexual act with a child. The district court did not err in calculating defendant’s offense level under § 2A3.1. U.S. v. Cryar, 232 F.3d 1318 (10th Cir. 2000).
10th Circuit holds that attempt guideline does not apply to attempted drug crimes. (380) Defendant attempted to purchase cocaine from undercover government agents. He argued that the district court should have made a three-level reduction under § 2X1.1 because his offense was only an attempt. The Tenth Circuit held that § 2X1.1, the attempt guideline, does not apply to attempted drug crimes. By its express terms, § 2X1.1 does not apply when an attempt “is expressly covered by another offense guideline section.” Indeed, the title of § 2D1.1 states that the guideline covers “Attempt or Conspiracy.” There is no ambiguity that would require application of the rule of lenity. The language of the guidelines are clear. Recent amendments confirm that defendants convicted of attempting or conspiring to commit drug offenses are to be sentenced under the same guidelines as defendants convicted of completed drug offenses. U.S. v. Onheiber, 173 F.3d 1254 (10th Cir. 1999).
10th Circuit says accessory must know murder was premeditated to be held accountable for first‑degree murder. (380) Defendant and others left a bar in the same car. Two of the men had been arguing. One man pulled a knife and stabbed the other repeatedly. He then told defendant, “Finish it.” Defendant took the knife, and struck the victim two or three times with the knife. The killer was convicted of first‑degree murder and defendant later pled guilty to being an accessory after the fact. Defendant objected to the PSR’s conclusion that he was an accessory to first degree murder, claiming he did not know that the murder was premeditated. The Tenth Circuit held that the district court erred by adopting the PSR’s conclusion without addressing this objection. Defendant was an accessory to a murder under 10 U.S.C. § 918. Section 918 does not distinguish between first and second degree murder. To determine the most analogous guideline, the district court must determine defendant’s state of mind. Defendant could only be punished as an accessory to first degree murder if he knew the murderer acted with premeditation. U.S. v. Henning, 77 F.3d 346 (10th Cir. 1996).
10th Circuit says accessory after the fact not entitled to minor role reduction. (380) Defendant pled guilty to being an accessory after the fact to murder. The Tenth Circuit rejected defendant’s claim that he was entitled to a reduction under § 3B1.2 for his mitigating role as an accessory after the fact. Section 2X3.1, which provides the base offense level for accessory after the fact, already takes into account the defendant’s reduced role in the underlying offense. Under note 2, the § 3B1.2 reduction would not apply because the adjustment for reduced culpability is incorporated in the base offense level. U.S. v. Henning, 77 F.3d 346 (10th Cir. 1996).
10th Circuit rejects guideline procedure for conspiracies with multiple objects. (380) Section 1B1.2(d) provides that a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense. Under note 5, this section is only applied if the court, sitting as the trier of fact, would have convicted the defendant of conspiring to commit the object offense beyond a reasonable doubt. The Tenth Circuit said this procedure violates the Fifth and Sixth Amendment by taking this issue away from the jury and placing it in the hands of the judge. Nevertheless, the court found the record in this case was sufficiently clear that defendant intended to plead guilty to conspiracy to distribute cocaine base. In his plea agreement, defendant acknowledged that the government was aware of 5-15 kilograms of cocaine base attributable to him. During his testimony at the trial of his co-conspirators and during the plea hearing he repeatedly admitted that he had conspired to distribute crack cocaine. Accordingly, his sentence was affirmed. U.S. v. Bush, 70 F.3d 557 (10th Cir. 1995).
10th Circuit holds perjury defendant need not be accessory after the fact to sentence under § 2X3.1. (380) Defendant testified at his brother’s trial that his brother operated a methamphetamine laboratory. He later executed an affidavit that his brother never participated in the methamphetamine laboratory. Defendant pled guilty to making irreconcilable sworn statements. Section 2J1.3 provides that a perjury defendant shall be sentenced under § 2X3.1 (Accessory After the Fact) if the perjury was in respect to a criminal offense, and it would result in a higher offense level. Defendant claimed that § 2X3.1 can only be used if the declarant is an accessory after the fact, since the application notes define “underlying offense” as the offense “as to which the defendant is convicted of being an accessory.” The Tenth Circuit held that the district court properly applied § 2X3.1 even though defendant may not have been an accessory after the fact. The application notes are not relevant because § 2X3.1 is being used simply as a formula for the perjury offense. The court disagreed with circuits holding that the cross-reference is inapplicable when the perjury assists the declarant as opposed to a third party. U.S. v. Glover, 52 F.3d 283 (10th Cir. 1995).
10th Circuit sentences perjury defendant on the basis of all drugs in brother’s methamphetamine operation. (380) Defendant originally testified at his brother’s trial that his brother ran a methamphetamine operation. He later recanted claiming his brother did not participate in the operation. Defendant was convicted of making irreconcilable sworn statements and sentenced under § 2X3.1 (Accessory After the Fact). Defendant’s testimony related to six pounds of methamphetamine. However, his brother was convicted of crimes involving 17.69 kilograms. Defendant argued that his sentence should be limited to the drug quantities about which he testified during his brother’s trial. The Tenth Circuit held that defendant was accountable for all the methamphetamine involved in his brother’s offense since defendant’s statements related to his brother’s entire operation. Defendant’s affidavit broadly claimed that his brother did not participate in the methamphetamine laboratory. Thus, the court did not decide whether the content of a perjurer’s statement can limit his sentence under § 2X3.1. U.S. v. Glover, 52 F.3d 283 (10th Cir. 1995).
10th Circuit holds conjunctive conspiracy count permitted sentencing under arson guideline. (380) Defendant was convicted of conspiracy to commit certain offenses against the U.S., including arson, mail fraud, wire fraud, and money laundering. Defendant argued that it was error for the court to sentence him for the multiple-object conspiracy under the arson guideline. The 10th Circuit found that the conjunctive nature of the conspiracy count permitted the court to properly sentence defendant for conspiracy to commit arson. U.S. v. Linn, 31 F.3d 987 (10th Cir. 1994).
10th Circuit rejects attempt reduction because all acts to commit mail fraud were completed. (380) Defendant arranged for his car to be “stolen” and then submitted a claim to his insurer misrepresenting that the car had been stolen. The insurance company never paid any insurance proceeds, because the police had alerted the company to the fraud and arrested defendant after he mailed his claim. The district court reduced the offense level by three levels under section 2X1.1(b)(1), based on the crime being an attempt, rather than a completed fraud. The 10th Circuit reversed, ruling that defendant had completed all of the acts he believed necessary to complete the crime charged. The only reason the fraud was not successful was because the police interrupted the scheme. U.S. v. Santiago, 977 F.2d 517 (10th Cir. 1992).
10th Circuit applies guidelines in effect when conspiracy ended rather than when it began. (380) The offense level specified in the 1988 guidelines was four levels lower than the offense level effective November 1, 1989. The 10th Circuit upheld the district court’s decision to apply the 1989 guidelines, which were in effect when the conspiracy ended, rather than the 1988 guidelines, which were in effect when the conspiracy began. There is no violation of the ex post facto clause in applying the guidelines in effect at the time of the last act of the conspiracy. U.S. v. Stanberry, 963 F.2d 1323 (10th Cir. 1992).
10th Circuit refuses to apply 2D1.1 to conspiracy to carry firearm during a drug trafficking offense. (380) The 10th Circuit rejected the application of guideline section 2D1.1 to a defendant convicted solely of a conspiracy under 18 U.S.C. 371 to use or carry firearms during the commission of a drug trafficking offense in violation of 18 U.S.C. section 924(c). While a defendant must have intended to commit a drug trafficking crime in order to be convicted of this conspiracy charge, a conspiracy to use or carry a firearm during a drug trafficking crime is distinct from a conspiracy to commit the drug trafficking offense. The appropriate guideline for section 371 conspiracies is section 2X1.1. Under this guideline, the base offense level is determined by the guideline for the substantive offense. However, section 2K2.4(a), the guideline for the underlying section 924(c) offense, does not provide a base offense level but references only the term of imprisonment required by statute. In this situation, section 2X5.1 directs a court to apply “the most analogous guideline,” which in this case is section 2K2.1(a)(7). U.S. v. Morehead, 959 F.2d 1489 (10th Cir. 1992).
10th Circuit affirms that defendant committed acts in furtherance of conspiracy after his 18th birthday. (380) Defendant became involved in a drug conspiracy as a juvenile. Although he turned 18 during the course of the conspiracy, he contended that there was no evidence that he remained involved in the conspiracy after his 18th birthday, and therefore the district court had no jurisdiction over him because he was a juvenile. The 10th Circuit rejected the argument, noting that even though defendant moved out of state on his 18th birthday, he came back for a visit. Two police officers testified that several weeks after defendant moved, they observed him and a co-defendant apparently selling cocaine. This testimony was corroborated by a statement that a co-defendant made to an undercover police officer. U.S. v. Harris, 944 F.2d 784 (10th Cir. 1991).
10th Circuit rules government failed to establish that conspiracy continued past guidelines’ effective date. (380) The 10th Circuit found that the government failed to offer any evidence that the conspiracy of which defendant was a member continued past November 1, 1987, the effective date of the guidelines. The only evidence offered by the government to show conspiratorial activity by anyone beyond this date was testimony that a cocaine buyer of a co-defendant sold the cocaine in 1988. The co-defendant had sold the cocaine to the buyer in December 1987. However, this was after the co-defendant terminated his conspiracy with defendant and began a new conspiracy. Thus, defendant was improperly sentenced under the guidelines. U.S. v. Harrison, 942 F.2d 751 (10th Cir. 1991).
10th Circuit applies guidelines to conspiracy beginning before effective date. (380) Relying on past circuit precedent, the 10th Circuit rejected defendant’s claim that the ex post facto clause was violated by applying the guidelines to a conspiracy that began before their effective date but continued after that time. U.S. v. Shewmaker, 936 F.2d 1124 (10th Cir. 1991).
10th Circuit upholds sentencing felon in possession of firearm on the basis of underlying state crime. (380) Defendant committed a “drive-by shooting” and was convicted of being a felon in possession of a firearm. The 10th Circuit found that defendant was properly sentenced under the aggravated assault provisions of guideline § 2A2.2. Defendant claimed that the district court used the superseded version of guideline § 2K2.2(c)(1), which provided that if the defendant used the firearm to commit another offense, a court should apply the guideline for such other offense or § 2X1.1. The new version of the guidelines deleted the reference in § 2K2.2(c)(1) to “for such other offense or,” and provide that a court should apply § 2X1.1. The 10th Circuit found that both versions call for cross reference to § 2X1.1, and through that section the court is directed to look at the underlying conduct. Section 2X1.1 is a conduit which directs a court to look at the underlying offense — in this case aggravated assault. The 10th Circuit also rejected defendant’s argument that it was beyond the sentencing commission’s authority to enhance his firearms sentence on the basis of the state offense of aggravated assault. This did not federalize a state crime, but merely allowed the sentence for the charged crime to reflect the reality of the crime. U.S. v. Willis, 925 F.2d 359 (10th Cir. 1991).
10th Circuit holds that defendant is responsible for actual quantity of drugs distributed by conspiracy. (380) Defendant argued that she should only be responsible for the drugs she personally handled, not the total quantity of drugs involved in her portion of the conspiracy. The 10th Circuit disagreed, holding that a defendant is subject to a sentence determined by reference to the actual quantity of drugs involved in the conspiracy, provided that the defendant knew or should have known that at least such amount was involved. U.S. v. Williams, 897 F.2d 1034 (10th Cir. 1990).
10th Circuit holds that guidelines apply to defendant who did not affirmatively withdraw from conspiracy before effective date of guidelines. (380) Defendant’s last transaction in a conspiracy to distribute drugs ended in January 1987, well before the effective date of the guidelines, November 1, 1987. However, the conspiracy continued to operate until December 1987. The 10th Circuit rejected defendant’s contention that the guidelines should not apply to her because her personal involvement ended before the guidelines effective date. Absent affirmative withdrawal, defendant remained part of an ongoing conspiracy and therefore her offense was committed after the effective date of the guidelines. U.S. v. Williams, 897 F.2d 1034 (10th Cir. 1990).
11th Circuit upholds enhancement for intentional sinking of vessel. (380) Defendant was convicted of operating or embarking upon a semi-submersible vessel without markings in international waters with the intent to evade detection, in violation of the Drug Trafficking Vessel Interdiction Act of 2008, 18 U.S.C. § 2285. The Eleventh Circuit held that the district court did not err in applying an eight-level enhancement under § 2X7.2(b)(1)(C) for the intentional sinking of the vessel. Even if defendant did not scuttle the vessel himself, the district court made factual findings that necessarily entailed a factual finding that it was reasonably foreseeable the vessel would be scuttled. At the time defendant joined the conspiracy, it was well known that semi-submersible vessels are frequently scuttled when confronted by authorities. Defendant was aware that the vessel was sailing surreptitiously, and he accepted a large sum in consideration for his services. He also had reason to believe that the vessel was carrying or would carry illicit cargo. Defendant also knew to be on the lookout for any signs of interception, and was the one who sighted the maritime patrol helicopter and alerted the captain. It was therefore, reasonably foreseeable to defendant that when faced with the threat of interdiction, the captain would engage in evasive maneuvers to elude authorities or take actions to destroy incriminating evidence, including the vessel and its cargo. U.S. v. Valarezo-Orobio, 635 F.3d 1261 (11th Cir. 2011).
11th Circuit applies espionage guideline to conspiracy conviction. (380) Defendant, a Cuban agent, was convicted of conspiracy to gather and transmit national-defense information, in violation of 18 U.S.C. § 794. The district court applied § 2M3.1, the guideline applicable to violations of 794. Defendant argued that the court should have applied § 2X1.1(a), which applies to conspiracies not covered by a specific offense guideline. The Eleventh Circuit disagreed. In U.S. v. Thomas, 8 F.3d 1552 (11th Cir. 1993), it held that district court correctly refused to apply 2X1.1(a) to a Hobbs Act conspiracy because a conspiracy to violate the Hobbs Act is itself a violation of the Hobbs Act. Similarly, a conspiracy to violate § 794 is also a violation of § 794. Thomas is still good law in the Eleventh Circuit, even if the Second Circuit case on which it relied is no longer followed in the Second Circuit. U.S. v. Campa, 529 F.3d 980 (11th Cir. 2008).
11th Circuit holds that solicitation reduction does not apply where person solicited was undercover agent and circumstances show that agent was about to complete the substantive offense. (380) Guideline § 2X1.1(b) provides for a three-level reduction in the base offense level for attempt, conspiracy, and solicitation of a substantive offense unless certain conditions are met. In the case of solicitation, the decrease does not apply if “the person solicited …. completed all the acts he believed necessary for successful completion of the substantive offense or the circumstances demonstrate that the person was about to complete all such acts but for apprehension or interruption by some similar event …” Here, the person defendant solicited to commit an arson was an undercover agent. Defendant argued that the reduction was applicable because the agent had done nothing toward completing the arson. The Eleventh Circuit held that under the second prong of the guideline, the reduction does not apply when the circumstances demonstrate to the defendant that the person solicited was about to complete the substantive offense. Thus, a court faced with the application of § 2X1.1(b)(3)(A) should consider whether the person solicited had taken all the “crucial steps” necessary to demonstrate to the defendant that the offense was about to be completed. U.S. v. Watkins, 477 F.3d 1277 (11th Cir. 2007).
11th Circuit holds that defendants were not entitled to reduction for uncompleted fraud. (380) Defendants contended that they should have received a reduction under § 2X1.1(b)(1), which applies “unless the defendant completed all the acts the defendant believed necessary for successful completion of the substantive offense.” The Eleventh Circuit held that defendants were not entitled to the reduction – the facts clearly demonstrated that defendants completed all the acts necessary to commit mail fraud. Defendants actually mailed the letters in question. Moreover, defendant completed the acts underlying their scheme to defraud – they wrote checks on closed accounts, provided misleading information to banks and payees in an attempt to have the bad checks honored, and thus were able to either keep outright or to retain for a length period of time their ill-gotten gains. The fact that their offset checks were not in fact honored could not be credited to defendants but rather to the good sense of the banks and merchants involved in the scheme. U.S. v. Lee, 427 F.3d 881 (11th Cir. 2005).
11th Circuit holds defendants were entitled to reduction for uncompleted money laundering. (380) Defendants were convicted of conspiracy to commit money laundering. They actually laundered $714,500, but the jury found that an additional six million dollars was agreed to be laundered in the future. Defendants sought a three-level reduction under § 2X1.1(b)(2) because they had not completed or were not close to completing all the acts they believed necessary for the scheme, particularly as to the six million dollars in future transactions. The Eleventh Circuit agreed. None of the defendants had taken crucial steps, such as contacting the undercover agents posing as drug dealers, or preparing paperwork for more transfers. The laundering of $ 6.7 million would require an 8-level increase under § 2S1.1(b)(2)(1), minus three levels under § 2X1.1(b)(2) for an uncompleted transaction, resulting in a enhancement of five levels. The actual laundering of $714,500 would have resulted in a four-level increase under § 2S1.1 (b)(2)(E). Hence, the five-level increase, resulting in the greater of the two offense levels, became the operative one for defendants. U.S. v. Puche, 350 F.3d 1137 (11th Cir. 2003).
11th Circuit vacates where court failed to determine object of conspiracy beyond a reasonable doubt. (380) Under § 1B1.2(d) and Eleventh Circuit case law, where a count charges a conspiracy to commit more than one offense, the district court must find beyond a reasonable doubt that the defendant conspired to commit that particular offense in order to apply the corresponding offense level as found in the guidelines. See U.S. v. Ross, 131 F.3d 970 (11th Cir. 1997). Defendant argued that the district court erred in sentencing him on the basis of a multi-object conspiracy because it did not find beyond a reasonable doubt that he conspired to commit each object offense of the conspiracy. The Eleventh Circuit agreed and remanded for resentencing. Although the district court acted both as the trier of fact and imposed the sentence, the court’s decision to base defendant’s sentence on a multi-object conspiracy for mail fraud and money laundering did not necessarily imply that those objects were proved beyond a reasonable doubt. U.S. v. Vallejo, 297 F.3d 1154 (11th Cir. 2002).
11th Circuit includes amount left in bank vault in robbery loss. (380) Defendant and two accomplices robbed a bank at gunpoint. The Eleventh Circuit upheld the district court’s decision to include an estimated $100,000 from the bank vault in the amount of loss. Sections 2B1.1 and 2X1.1 and their commentary make clear that a defendant who partially completes an offense (i.e. only seized part of the money) will be held liable for the entire offense (i.e. the entire amount of money that the defendant attempted to seize) if “the substantive offense was substantially completed or was interrupted or prevented on the verge of completion by the intercession of law enforcement authorities or the victim.” Defendant entered the bank vault area with the teller with the key and the teller with the vault’s combination. The key was about to be inserted into the lock when someone yelled “The police are here,” which caused defendant to leave the vault area. Thus, defendant had completed all of the necessary acts to seize the funds in the bank vault, and but for the intervention of the police, would have successfully seized those funds. U.S. v. Cover, 199 F.3d 1270 (11th Cir. 2000).
11th Circuit finds insufficient evidence to use murder as object of multi-object conspiracy. (380) A jury convicted five members of defendant’s family of various charges related to the murder-for-hire of the night watchman at their family business warehouse, the burning of that warehouse and the ensuing fraud on the warehouse’s insurer. Defendant was convicted of a conspiracy, the objects of which were murder-for-hire, arson, and mail fraud. Under note 5 to § 1B1.2(d), where the verdict does not establish which offense was the object of a multi-object conspiracy, the court can only apply the guideline for a particular object offense if it finds beyond a reasonable doubt that the defendant conspired to commit that object offense. The Eleventh Circuit found insufficient evidence that, for § 1B1.2(d) purposes, defendant conspired to commit murder-for-hire. Defendant’s acquittal on the substantive murder count did not foreclose conviction on the related conspiracy count. However, the government proved nothing more than defendant was present during the planning of the murder. The witness who overheard the conspirators’ discussion did not testify that defendant participated in the discussion. Defendant’s father, one of the conspirators, had tyrannical control of his family members, especially defendant, who was only 18 at the time of the murder. It was not unlikely that the father would permit his son to be present during the conspiratorial discussions even though his son was not a member of the conspiracy. U.S. v. Hernandez, 141 F.3d 1042 (11th Cir. 1998).
11th Circuit upholds refusal to impose sentence for more serious conspiracy. (380) Defendant was charged with various substantive counts relating to the illegal export of bomb-making materials, and conspiracy to (1) make false statements, (2) violate the Arms Export Control Act (AECA), and (3) violate the Export Administration Act (EAA). The jury acquitted defendant on the substantive EAA charge and convicted him by general verdict on the conspiracy count. The district court sentenced defendant as if only conspiracy to make false statements and conspiracy to violate the AECA had been proved, and the Eleventh Circuit affirmed. Section 1B1.2 requires a court to apply the guidelines for those objects of the conspiracy that were proved beyond a reasonable doubt. The court can make this finding “either implicitly or explicitly.” The parties specifically brought § 1B1.2 to the court’s attention at sentencing. After careful consideration, the court refused to impose the guideline sentence for conspiracy to violate the EAA. Under these circumstances, there was an implicit finding by the district court supporting its sentencing decision. U.S. v. Johnson, 139 F.3d 1359 (11th Cir. 1998).
11th Circuit rejects challenge to guideline permitting court to find objects of conspiracy. (380) Defendants were convicted of wire fraud, interstate transportation of money taken by fraud, and conspiracy. The conspiracy charged contained multiple objects, including money laundering. Defendants argued that the district court erred in using the money laundering guideline for the conspiracy count because the jury acquitted them of a substantive money laundering charge. Section 1B1.2(d) provides that a conviction on a conspiracy count charging more than one object shall be treated as if the defendant had been convicted of each offense the defendant conspired to commit. Note 5 adds that this applies if the court, sitting as a trier of fact, would have convicted the defendant of conspiring to commit the object offense. The Eleventh Circuit, agreeing with the Third Circuit’s opinion in U.S. v. Conley, 92 F.3d 157 (3d Cir. 1996), rejected defendant’s 5th and 6th Amendment challenges to § 1B1.2(d) and note 5. However, the district court should not have applied the money laundering guideline here without an independent determination that defendants conspired to commit money laundering. The case was remanded for appropriate factual findings. U.S. v. Ross, 131 F.3d 970 (11th Cir. 1997).
11th Circuit holds failure to apply § 2X1.1 to money laundering conspiracy was plain error. (380) Defendants agreed to launder $2 million for an undercover agent posing as an accountant and financial advisor for a fictitious cocaine trafficker. Over a several month period, defendants laundered a total of $570,556 before they were arrested. The Eleventh Circuit held that the district court’s failure to apply § 2X1.1 was plain error. Defendants intended to launder $2 million. However, at the time of their arrests, they had only laundered $570,556 and had not taken crucial steps (preparing falsified documents, securing cashier’s checks, or arranging meetings for the exchange) towards laundering the remaining money. Under note 4 to § 2X1.1, defendants’ offense level should be the greater of the offense level for the intended offense minus three levels under § 2X1.1(b)(1) for an uncompleted offense, or the offense level for the part of the offense for which the necessary acts were completed. Thus, the district court should have determined whether defendants’ offense level would be higher based upon the intended offense of laundering $2 million minus three levels under § 2X1.1(b)(2) or the offense of actually laundering $570,556. Because a proper application of the guidelines would have resulted in a lower offense level, the failure to apply § 2X1.1 was plain error. U.S. v. Khawaja, 118 F.3d 1454 (11th Cir. 1997).
11th Circuit says obstruction defendant sentenced under § 2X3.1 need not be accessory. (380) While a grand jury member, defendant disclosed grand jury secrets to the target of a grand jury investigation. He challenged the district court’s use of the cross-reference in § 2J1.2(c)(1) to § 2X3.1, since he was not convicted of being an accessory after the fact. The Eleventh Circuit held that defendant was properly sentenced under § 2X3.1. Defendant need not be proven to be an accessory after the fact because the application of § 2X3.1 was due to the cross-referencing requirement in § 2J1.2 (c)(1) and not based on defendant being an accessory after the fact. The use of § 2X3.1 is not intended to treat defendant as having committed the underlying offense, but to weigh the severity of his action in obstructing justice based on the severity of the underlying offense that was the subject of the judicial proceeding sought to be obstructed. U.S. v. Brenson, 104 F.3d 1267 (11th Cir. 1997).
11th Circuit requires proof that defendants agreed to participate in conspiracy past guidelines’ effective date. (380) Defendants participated in a conspiracy that operated from 1979 until 1990. The conspiracy provided a runway and an airstrip to various groups smuggling drugs into the U.S. Defendants all resided at the ranch where the airstrip was located. Three defendants challenged the application of the guidelines to their offenses, arguing that their personal involvement in the conspiracy ended before November 1, 1987, the guidelines’ effective date. The 11th Circuit vacated the sentences of two defendants because the government did not prove they agreed to participate in the conspiracy after the effective date of the guidelines. Criminal involvement must be based on actual individual agreement and activity. The enterprise had sporadic and unpredictable episodes, with little foreseeability or opportunities to express intent to withdraw. U.S. v. Peeples, 23 F.3d 370 (11th Cir. 1994).
11th Circuit rejects sentence based on money laundering conspiracy where jury not instructed on elements. (380) The indictment charged defendants with a multiple-object conspiracy: conspiring to commit three offenses that were also substantively charged, and conspiring to launder money, which was not substantively charged. The jury’s general verdict did not specify which of those four offenses was the object of the conspiracy. The district court sentenced defendant based on the most serious offense charged, the conspiracy to launder money. The 11th Circuit held that this was improper since the judge never instructed the jury on the elements of money laundering. Although defendants were properly convicted of conspiracy based on the other objectives charged and instructed, the district court erred in determining, for sentencing purposes, that defendants were convicted of conspiring to launder money. U.S. v. Miller, 22 F.3d 1075 (11th Cir. 1994).
11th Circuit upholds cross reference to 2X3.1 for bribe to dismiss state charges. (380) Defendant was convicted of bribery conspiracy for paying a DEA agent $20,000 to “fix” state drug charges against defendant’s son. Defendant challenged the enhancement of his sentence under the bribery guideline, section 2C1.1(c)(2), which cross references section 2X3.1 (Accessory After the Fact) when a bribe is made for the purpose of obstructing justice in respect to another criminal offense. Section 2X3.1, in turn, is tied to the offense level for the underlying offense, the prosecution of which defendant attempted to obstruct. Defendant argued that section 2X3.1 was inapplicable because the “underlying offense” at the time of the bribe was a state offense. The 11th Circuit refused to restrict section 2X3.1 to federal offenses. The Sentencing Commission intended that a defendant’s bribery sentence be determined by the nature of the underlying offense rather than by the timing of the bribe or the forum in which the underlying offense was investigated or prosecuted, either of which could be entirely fortuitous. U.S. v. Pompey, 17 F.3d 351 (11th Cir. 1994).
11th Circuit holds that Hobbs Act conspiracy is not subject to reduction under § 2X1.1. (380) Defendants were convicted of conspiracy to rob a bank in violation of the Hobbs Act. They argued they were entitled to a three-level reduction under section 2X1.1 for conspiracies that are not covered by a specific offense guideline. The 11th Circuit concluded that defendants were not entitled to the reduction. Section 2E1.5 covers Hobbs Act extortion or robbery, but does not specifically mention conspiracy. However, a conspiracy to violate the Hobbs Act is a violation of the Hobbs Act itself. Where the statute defining the offense of conviction prohibits conspiracies, and that section is expressly covered by a particular guideline, the offense level provided by that guideline is controlling and section 2X1.1 does not apply. U.S. v. Thomas, 8 F.3d 1552 (11th Cir. 1993).
11th Circuit holds that offense that prompts fugitive’s flight is underlying offense for one who harbors fugitive. (380) Defendant’s brother failed to appear in court on narcotics charges, and was finally apprehended at defendant’s house. Defendant pled guilty to concealing his brother from arrest. The offense level under section 2X3.1 (Accessory After the Fact) for harboring a fugitive is based on the “underlying offense.” The 11th Circuit held that the underlying offense for one who harbors a fugitive is the offense that prompted the fugitive’s flight. Therefore, the district court should have treated the narcotics offense, rather than the failure to appear offense, as the underlying offense. U.S. v. Gonzalez, 2 F.3d 369 (11th Cir. 1993).
11th Circuit bases offense level on drugs sold by dealer from whom agent sought bribe. (380) Defendant, a government agent, pled guilty to soliciting a bribe from a suspected drug dealer. Section 2C1.1(c)(1) provides that if the bribery was for the purpose of concealing or facilitating a crime, the court must use the “accessory after the fact” guideline (section 2X3.1) if that offense level is higher than the bribery guideline. At the sentencing hearing, the government presented “incontrovertible testimony” that the drug dealer was dealing 700 to 800 kilograms of cocaine a month. An Assistant U.S. Attorney said the dealer was believed to be involved in 1500 kilograms of cocaine. The 11th Circuit affirmed an offense level based on 1500 kilograms of cocaine. Since the district court could have supported defendant’s base offense level of 30 with only 50 kilograms of cocaine, defendant’s contention that he should not have been exposed to the maximum offense level under section 2X3.1 was without merit. U.S. v. Cruz, 946 F.2d 122 (11th Cir. 1991).
11th Circuit finds defendant did not withdraw from conspiracy prior to effective date of guidelines. (380) Defendant argued that he should not have been sentenced under the guidelines for his conspiracy conviction because he engaged in no criminal activity after the effective date of the guidelines. The 11th Circuit rejected this contention. The ex post facto clause does not bar application of the guidelines to conspiracies that began before and continued after the effective date of the guidelines. In order to avoid sentencing under the guidelines, a conspirator must prove that he withdrew from the conspiracy prior to the effective date. Defendant alleged that he refused to make any further drug courier trips prior to the effective date. However, mere cessation of criminal activity does not constitute withdrawal. Moreover, defendant continued to demand payment for his earlier trips. Defendant’s assertion that he refused to act as a courier was irrelevant if he continued to demand that he be paid for his prior illegal activity. U.S. v. Nixon, 918 F.2d 895 (11th Cir. 1990).
11th Circuit upholds supervised release term imposed upon defendant convicted of conspiracy. (380) Defendant was convicted of conspiracy under 21 U.S.C. § 846, which at the time of his offense provided for punishment by “imprisonment or fine or both.” Relying upon Bifulco v. U.S., 447 U.S. 381 (1980), defendant argued that a sentence of supervised release was not within the permissible statutory penalties for a violation of § 846. Bifulco had held that since § 846 did not explicitly authorize the imposition of special parole as punishment for those convicted of conspiracy, no special parole terms could be imposed. The 11th Circuit rejected defendant’s argument, finding that the district court had authority to impose a term of supervised release under 18 U.S.C. 3583(a). Enacted as part of the Sentencing Reform Act, § 3583(a) gives a federal district court the authority to impose supervised release as part of any criminal sentence. U.S. v. Jordan, 915 F.2d 622 (11th Cir. 1990).
11th Circuit applies guidelines to conspiracy that began prior to but continued beyond effective date. (380) The 11th Circuit held that the sentencing guidelines applied to a conspiracy that began prior to but continued past November 1, 1987, the effective date of the guidelines. Although defendant argued that his criminal conduct with respect to the conspiracy ended in 1984, the 11th Circuit upheld the district court’s factual determination that the conspiracy continued past November, 1987. U.S. v. Pritchett, 908 F.2d 816 (11th Cir. 1990).
11th Circuit holds that consideration of conduct before effective date of guidelines is proper in a conspiracy offense. (380) Defendant argued that the court improperly relied on drug deliveries before the guidelines’ effective date when it imposed sentence on his conspiracy conviction. The 11th Circuit disagreed, holding that Congress did not intend to prohibit reliance on conduct prior to the guidelines’ effective date when it affirmatively directed the sentencing courts to include relevant conduct in furtherance of a conspiracy when calculating guideline ranges. Since conspiracy is a continuing crime, the increase in penalty for a conspiracy beginning before the date of enactment but continuing afterwards did not violate the ex post facto clause. U.S. v. Terzado-Madruga, 897 F.2d 1099 (11th Cir. 1990).
11th Circuit finds that relevant conduct for conspiracy includes Pinkerton-like accountability for acts of co-conspirators. (380) The “relevant conduct” section of the guidelines, U.S.S.G. § 1B1.3, attributes to the defendant acts “by a person for whose conduct the defendant is legally accountable” that are part of “a common scheme or plan.” The 11th Circuit ruled that this “resembles in essence “the Pinkerton attribution to co-conspirators of “the same or other acts in furtherance of the conspiracy . . . for the purpose of holding them responsible for the substantive offense.” U.S. v. Pinkerton, 328 U.S. at 647 (1946);. Thus, although the guidelines do not “in any sense codify” the Pinkerton rule, the district court properly considered the acts of co-conspirators in sentencing the defendant. The district court also properly found one overall conspiracy, rather than separate conspiracies. U.S. v. LaFraugh, 893 F.2d 314 (11th Cir. 1990).
D.C. Circuit reverses where court used incorrect standard of proof for object of conspiracy. (380) Defendant was convicted of conflict of interest and conspiracy, and acquitted of giving or receiving illegal gratuities. While the indictment identified three possible predicate offenses for the conspiracy charge (conflict of interest, payment of illegal gratuities, and receipt of illegal gratuities), the jury did not indicate on which of these grounds the conspiracy conviction was based. The district court found by a preponderance of the evidence that defendant had conspired to violate the gratuities statute, and sentenced him accordingly. The district court’s use of a preponderance standard was erroneous. The commentary to USSG § 1B1.2(d) provides that where a defendant is convicted of a conspiracy with multiple objects, and the verdict did not establish which offense was the object of the conspiracy, the court may sentence defendant for an object offense only “if the court, were it sitting as a trier of fact, would convict the defendant of conspiring to commit that object offense.” The D.C. Circuit held that the district court’s failure to use the proper standard amounted to reversible error. The government conceded that the court’s error was plain. Defendant suffered prejudice from the error. Had the district court used the conflict of interest violation, instead of the gratuities offense, the resulting sentence would have been lower. Moreover, it was reasonably likely that defendant would not have been similarly convicted under a reasonable doubt standard. In order convict on the gratuities count, the government must prove a link between a thing of value conferred upon a public official and a specific official act for which it was given. The district court made no attempt to articulate a link between the two. U.S. v. Smith, 267 F.3d 1154 (D.C. Cir. 2001).
D.C. Circuit upholds use of attempted murder guideline for firearms defendant. (380) Defendant was convicted of possessing a firearm while subject to a court order, in violation of 18 U.S.C. § 922(g)(8). Based on evidence that defendant pulled the gun’s trigger while it was pointed at his estranged wife, the district court applied cross-references in § 2K2.1(c) and § 2X1.1 to sentence defendant under the attempted murder guideline. Defendant argued that the sentencing court erred in using the attempted murder guideline, because § 2X1.1 directs a court to use the offense level for the “substantive offense.” Note 2 to § 2X1.1 defines “substantive offense” as “the offense that the defendant was convicted of … attempting … to commit.” The D.C. Circuit upheld the cross reference to the attempted murder guideline. Note 2, which defines “substantive offense,” “applies only if section 2X1.1 is applied directly, rather than as a cross-reference from section 2K2.1.” U.S. v. Branch, 91 F.3d 699, 743 (5th Cir. 1996). Therefore, § 2X1.1(c) required the court to apply the offense level for attempted first-degree murder as prescribed in § 2A2.1. U.S. v. Drew, 200 F.3d 871 (D.C. Cir. 2000).
Commission adds penalties for smuggling drugs in submersible vessels. (380) The Drug Trafficking Vessel Interdiction Act of 2008, Pub. L. 110–407, created a new offense at 18 U.S.C. § 2285 making it unlawful to operate an unflagged submersible or semi-submersible vessel in international waters with the intent to evade detection. In response, the Commission amended §2D1.1 by expanding the scope of the specific offense characteristic at subsection (b)(2) to apply if a submersible or semi-submersible vessel was used in a drug importation offense. The Commission also created a new guideline at §2X7.2 (Submersible and Semi-Submersible Vessels) for the new offense at 18 U.S.C. § 2285, with a base offense level of 26 and a tiered specific offense characteristic and upward departure provisions to address certain aggravating circumstances listed by Congress. Amendment 728, effective November 1, 2009.
Commission increases sentences for terrorism. (380) The Commission eliminated the six-level increase for terrorism in the money laundering guideline, §2S1.1, because this is adequately covered by the terrorism adjustment in §3A1.4. For offenses involving harboring a fugitive in a terrorism offense, the maximum offense level in §2X3.1 (Accessory After the Fact) was raised from level 20 to level 30. New offenses involving biological agents and toxins were referred to the guideline covering nuclear, biological, and chemical weapons and materials, §2M6.1. The base offense level for tampering with a public water system was increased from level 18 to level 26, and §§2Q1.5 and 2Q1.4 were consolidated. The six-level enhancement for the risk of death or serious bodily injury (in the predecessor guideline) was incorporated into the base offense level, as were two levels for bodily injury. Likewise, the base offense level for threatening to tamper with a public water system, without conduct evidencing an intent to carry out the threat, was increased from level 10 to level 16. A base offense level of level 22 was provided for conduct evidencing an intent to carry out the threat. Amendment 655, effective November 1, 2003.