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Sentencing Guidelines Cross Reference §2C1.1(c)(1): Fake Cocaine And Government Sting Operation


criminal appeals lawyer, sentencing guidelines, cross reference, 2c1.1(c)(1)

U.S v. Solomon

754 F.3d 1143

United States Court of Appeals for the Ninth Circuit

Decided on: September 15, 2014

U.S.S.G §3B1.3 Abuse Of Trust Enhancement And Cross Reference §2C1.1(c)(1)

Blog By: Stephen N. Preziosi Esq., Criminal Appeals Lawyer

Issue: Whether the District Court erred under 2C1.1(c)(1), the cross reference, when it sentenced Defendant for taking bribes for the purpose of facilitating the trafficking of cocaine under $2D1.1 and whether or not an abuse of trust enhancement should have applied under §3B1.3 as a result of the application of the cross -reference.

Summary: Defendant Solomon pleaded guilty to corruption charges. In this appeal, he challenges the District Court’s application of two provisions of the United States Sentencing Guidelines. The first §2C1.1(c)(1), is a cross-reference that directs the sentencing Judge to apply the Guidelines range for another crime if, for instance, the Defendant accepted a bribe for the purpose of facilitating that criminal offense. The second, §3B3.1, is a two-level enhancement for abuse of a position of trust. Both challenges present questions of first impression.

See Also: Granting Habeas Relief: Circuit Courts May Not Rely On Their Own Precedent But Must Rely On Federal Law “As Determined By The U.S. Supreme Court.”

Holding: The Ninth Circuit Court of Appeals held that the District Court erred when it applied §3B1.3, abuse of trust enhancement because Application Note 6 of §2C1.1 prohibits the abuse of trust enhancement. The Ninth Circuit held that the District court couldn’t apply an offense level stemming from another Guideline without referring back to the language of §2C1.1, the Guideline under which the sentence originates. §2C1.1(c)(1) already includes a two-level increase for public officials, which explains why the abuse of trust enhancement does not apply when the cross-reference is used; it is incorporated into the base level offense instead.

Facts: Defendant Donald Solomon was indicted on three counts of extortion under color of official right, in violation of the Hobbs Act 18 U.S.C § 1951. Defendant’s Presentence Report(PSR) calculated his Sentencing Guidelines range under §2C1.1, which applies to extortion under color of official right. §2C1.1 includes a cross-reference, §2C1.1(c)(1) which states that: ‘if the offense was commited for the purpose ot facilitating the commission of another criminal offense, apply the offense guideline applicable to a conspiracy to commit that other offense, if the resulting offense level is greater than that determined.’

Pursuant to the cross-reference, the Probation Officer calculated Defendant’s offense level under the Guideline for conspiracy to commit cocaine trafficking, §2D1.1, to determine whether it was greater than Defendant’s offense level under the Guideline applicable to his Hobbs Act crime. ie. §2C1.1

After issuance of original PSR, the Government asked the District Court to apply an additional 2-level enhancement for abuse of a position of trust pursuant to §3B1.3, which would further increase Defendant’s Guidelines range. Defendant objected on the ground that Application Note 6 of §2C1.1—the section under which his sentence originated—expressly prohibits the application of the abuse of a position of trust enhancement.

On Appeal, Defendant challenges the District Court’s application of both the cocaine and trafficking Guideline under the §2C1.1(c)(1) cross-reference and the abuse of trust enhancement under 3B1.3.

Legal Analysis: The Court of Appeals for the Ninth Circuit held that they exercise plenary review over a District Court’s interpretation of the Sentencing Guidelines, United States v. Grier, 475 F.3d 556, 570 3d Cir.2007.

In this case, Defendant challenges the District Court’s application of both the cocaine trafficking Guideline under the § 2C1.1(c)(1) cross-reference and the abuse of trust enhancement under §3B1.3.

Here, Defendant pleaded guilty to three counts of extortion under color of official right. §2C1.1(c)(1).

The cross reference reads:

‘If the offense was committed for the purpose of facilitating the commission of another offense, apply the offense Guideline applicable to a conspiracy to commit that other offense, if the resulting offense level is greater than that determined above.’

Defendant next argues that even if he did commit extortion for the purpose of committing another criminal offense, that offense would be conspiracy with intent to distribute a controlled substance, meaning that under the cross-reference the District Court would sentence him for conspiracy to commit conspiracy to distribute drugs—a nonexistent ‘double inchoate crime.’

The Ninth Circuit held that they are un-persuaded. The facts make clear that Defendant accepted payments with intent to facilitate cocaine trafficking.

Therefore, the Court applied the offense Guideline applicable to a conspiracy to commit cocaine trafficking, §2D1.1 This is so because by agreeing to accept an illegal payment to facilitate another crime is akin to joining a conspiracy to commit that crime and can be punished accordingly.

The Ninth Circuit focuses on Defendants main argument on this appeal.

Defendant challenges the District Court’s application of the two-level enhancement for abuse of position of trust, §3B1.3. Defendant argues that the enhancement cannot apply to sentenced originating under §2C1.1—even those, like his, with a Guidelines range ultimately determined pursuant to a cross-reference.

The Government states that §3B3.1 would apply to Defendant because it is not included in the referenced offense guideline, except as otherwise expressly provided.

In Defendant’s view, Application Note 6 of §2C1.1 is exactly the kind of express prohibition the Guidelines contemplate. It plainly and without exception forbids application of the abuse of trust enhancement. The Ninth Circuit held, in determining whether the Hobbs Act offense level is higher or lower than that applicable to conspiracy to commit the other offense, the sentencing Judge must calculate the offense level under the cross-referenced Guideline and then compare it to the ordinary Hobbs Act offense level, relying on the language of the §2C1.1(c)(1) cross-reference. In doing so, the court cannot apply an offense level stemming from another Guideline without referring back to the language of § 2C1.1, the Guideline under which the sentence originates, including Application Note 6. In addition, by the time the court makes the comparison, it will have already calculated both possible outcomes, so no further enhancement can apply.

The Court of Appeal further held that Application Note 6’s prohibition of the abuse of trust enhancement is effective because the sentencing court never abandons §2C1.1. There is a difference between determining an offense level by reference to another Guideline and transferring out of one’s original Guideline altogether.

The Ninth Circuit held, even if a Defendant ultimately receives an increased offense level under the cross-reference, as Defendant did in this case, he is still sentenced under § 2C1.1—the Guideline governing his offense of conviction—even though his offense level is undoubtedly driven by § 2D1.1.

The Ninth Circuit Court of Appeals concluded that Application Note 6’s express prohibition on the abuse of trust enhancement applies to any sentence originating under §2C1.1, even those that ultimately apply the offense level for another Guideline pursuant to the cross-reference. Because the Court concluded that the District Court erred in applying the abuse of trust enhancement, the Court of Appeals for the Ninth Circuit remanded for re-sentencing.


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