Skip to main content

Proper and improper application of cross-referenced Sentencing Guidelines and consequential enhancements



United States v. Solomon, No 13-3108 (3d Cir., 9/15/14), concerns the application of two Sentencing Guidelines sections, §§ 2C1.1(c)(1) (“Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under Color of Official Right; Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials; Conspiracy to Defraud by Interference with Governmental Functions”) and 3B1.3 (“Abuse of Position of Trust or Use of Special Skill”).  The Court affirmed the District Court’s application of the first, but overturned its application of the second.

The defendant was a police chief who accepted money from a confidential informant to provide protection for a drug sale. After that transaction, the defendant agreed to provide protection for future drug transactions, and also to sell some law-enforcement restricted Tasers to the CI. After a few more transactions, and the transfer of the weapons, the defendant was arrested. He pled guilty to extortion under color of official right in violation of 18 U.S.C. §1951.

After applying his acceptance of responsibility and his lack of a prior record, the defendant’s initial guidelines range was 30 to 37 months. §2C1.1(c)(1) includes a cross-reference that requires, when the offense was committed for facilitating another crime, application of the offense guideline to a conspiracy to commit that offense if it is greater than the guideline initially determined.  In this case, the cross-referenced crime was conspiracy to traffic in cocaine, and due to the amount involved, the guideline level was 31. The government also asked the District Court to apply an additional 2 levels under §3B1.3 for abuse of a position of trust.  Over the Defendant’s objection, the District Court applied both.

The Court ruled that the §2C1.1(c)(1) was properly applied.  His extortion was committed to protect the commission of another crime. The defendant argued that since the crime was actually staged by the government, there was no other crime, and there were no drugs. Nevertheless, the defendant agreed to facilitate a transaction involving an agreed amount of drugs— real or not real—  and a comment in the drug crime guideline allowed the use of the agreed upon amount of drugs to determine quantity. The defendant’s argument that the actual crime was obstruction of justice, because he agreed to keep other law enforcement away from the transactions, was also to no avail, as the Court found his crime more akin to “facilitation”—  i.e., helping the transaction to occur— than “obstruction” or “concealment”, which it described as retrospective and occurring after the crime occurred.  Because §2C1.1(c)(1) was not ambiguous, the Court also refused to apply the rule of lenity to find that it did not apply to another criminal offense.

The defendant fared better though with his argument against the application of §3B1.3.  The Court accepted his argument that it could not apply to sentences originating under §2C1.1.  §3B1.3 applies a two level enhancement if the defendant abused a position of public trust in a manner that concealed or facilitated the offense.  §1B1.5(c) states that Chapter Three adjustments are determined in respect to the cross-referenced guideline, “unless otherwise provided.” Application note 6 of §2C1.1 prohibits the use of the abuse of trust enhancement. The Court rejected the argument that the abuse of trust enhancement should be applied to the guideline for the cocaine transaction, which contains no such limitation.  Even though the defendant was sentenced under the drug transaction guideline, that was due only to §2C1.1, and therefore its limitation on the enhancement survived the cross-reference. The matter was therefore remanded for resentencing without the two level enhancement.


Image from Yale Law Journal.

Comments

Popular posts from this blog

Double Jeopardy Claim Falls Short on Deferential Habeas Review

In the habeas matter of Wilkerson v. Superintendent Fayette SCI, Nos. 15-1598 & 15-2673, the Third Circuit defers to a state court determination that the defendant’s conviction of both an attempted murder count and an aggravated assault count based on the same altercation did not violate the Double Jeopardy Clause.
The evidence was that during the altercation, the defendant both struck the victim in the head with a gun and shot him in the chest. The Pennsylvania Superior Court upheld consecutive sentences on the theory that the evidence was sufficient to permit a jury to find the striking to support one count and the shooting the other. Despite the jury instructions’ and verdict form’s failure to require each of these discrete findings, the Third Circuit holds that the state court’s reasoning was sound enough to withstand deferential review the AEDPA’s “clearly established Federal law” limitation. “[W]here the jury instructions were merely ambiguous and did not foreclose the jury…

Mailing Threatening Communications is a Crime of Violence and a Judicial Proposal for Reform of the Categorical Approach

In United States v. Chapman, __F.3d__, No. 16-1810, 2017 WL 3319287 (3d Cir. Aug. 4, 2017), the Third Circuit held that mailing a letter containing any threat to injure the recipient or another person in violation of 18 U.S.C. § 876(c) qualifies as a crime of violence for the purposes of the career offender enhancements of the Sentencing Guidelines Manual § 4B1.1(a).The Court acknowledged in a footnote that the analysis is the same for a violation of 18 U.S.C. § 871, threats against the president.


The Court began its analysis by reviewing the definition of “crime of violence” and specifically the meaning of the words “use” and “physical force.”Quoting United States v. Castleman, 134 S. Ct. 1405 (2014), and Tran v. Gonzales, 414 F.3d 464 (3d Cir. 2005), it defined “use” as “the intentional employment of force, generally to obtain some end,” which conveys the notion that the thing used “has become the user’s instrument.” The Court confirmed the definition of “physical force” as “force ca…

A Traffic Stop Followed by a Summons is not an Intervening Arrest for Sentencing Guidelines Purposes

In United States v. Ley, __ F.3d __, 2017 WL 5618617 (3d Cir., Nov. 22, 2017), the Third Circuit held that a traffic stop, followed by the issuance of a summons, is not an intervening arrest for the purpose of calculating a defendant’s prior convictions under USSG § 4A1.2(a)(2).   Defendant John Francis Ley received two speeding tickets on two consecutive days.  After writing each ticket, the police released Ley and informed him that the matter would proceed via summons.  No arrest was made and Ley was sentenced for both matters on the same day. The District Court, however, held that the issuance of the summons constituted an intervening arrest for the purposes of the Guidelines and each ticket therefore merited an individual criminal history point.  Ley appealed.  Looking at the ordinary meaning of both “arrest” and “summons,” as well as the Supreme Court’s history of distinguishing arrests from other interactions with law enforcement, the Third Circuit, joining three other circuits …