United States v. Long , 122 F.3d 1360 ( 1997 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 95-8502
D. C. Docket No. 1:94-CR-386-ODE
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN M. LONG, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Georgia
(September 16, 1997)
Before TJOFLAT and ANDERSON, Circuit Judges, and NANGLE*, Senior
Circuit Judge.
___________________________
*Honorable John F. Nangle, Senior U.S. District Judge for the
Eastern District of Missouri, sitting by designation.
TJOFLAT, Circuit Judge:
Following a plea of guilty to a violation of 21 U.S.C. §
1791 (1994),1 the district court sentenced the appellant, John
Long, to a term of imprisonment and imposed a fine. He appeals
his sentence, challenging both the term of imprisonment and the
fine. We find no error in the imposition of the fine, but
conclude that Long’s challenge to his prison term has merit. We
therefore vacate that portion of his sentence and remand the case
for further proceedings.
I.
The parties do not dispute the facts of this case. While
employed as a food service foreman in the United States
Penitentiary-Atlanta, Long was arrested while attempting to carry
85.1 grams of cocaine into the prison. A two-count indictment
charged him with possession with intent to distribute a narcotic
controlled substance in violation of 21 U.S.C. § 841 (1994)
(“Count I”), and with attempting to provide cocaine to an inmate
in a federal prison in violation of 18 U.S.C. § 1791 (1994)
(“Count II”). Pursuant to a negotiated plea agreement, Long pled
1
Section 1791, “Providing or possessing contraband in prison,”
states, in pertinent part,
(a) Offense.--Whoever--
(1) in violation of a statute or a rule or order issued
under a statute, provides to an inmate of a prison a
prohibited object, or attempts to do so . . . shall be
punished as provided in subsection (b) of this section.
18 U.S.C. 1791 (1994).
guilty to Count II, and Count I was dismissed. A Presentence
Investigation Report (“PSR”) was prepared.
According to the PSR, Long’s base offense level was
prescribed by United States Sentencing Commission, Guidelines
Manual, § 2P1.2 (Nov. 1, 1994). In determining Long’s offense
level, the PSR recommended an enhancement of two points for abuse
of a position of trust under section 3B1.3,2 and recommended a
reduction of three points for acceptance of responsibility under
section 3E1.1. The PSR also found that Long was able to pay a
fine. Given Long’s criminal history category of I, these
recommendations yielded an offense level of 25, a sentence range
of 57 to 71 months imprisonment, and a fine range of $10,000 to
$100,000.
Long objected to the PSR's recommendation of a section 3B1.3
enhancement and to the PSR’s finding that he was able to pay a
fine. On April 13, 1995, the district court, however, adopted
the PSR's guideline computation and sentence range. The court
sentenced Long to 57 months of imprisonment and three years of
supervised release, imposed a fine of $2,000, and ordered him to
pay a special assessment of $50.3
2
Section 3B1.3 provides, in relevant part:
If the defendant abused a position of public
or private trust . . . in a manner that
significantly facilitated the commission . .
. of the offense, increase by 2 levels. This
adjustment may not be employed if an abuse of
trust . . . is included in the base offense
level or specific offense characteristic.
U.S.S.G. § 3B1.3 (1994).
3
Long does not challenge the special assessment.
II.
The parties do not dispute that the starting point for
determining Long's offense level is section 2P1.2. That
guideline states:
§ 2P1.2. Providing or Possessing Contraband in Prison
(a) Base Offense Level:
(1) 23, if the object was a firearm or
destructive device.
(2) 13, if the object was a weapon (other than
a firearm or a destructive device), any object that
might be used as a weapon or as a means of facilitating
escape, ammunition, LSD, PCP, or a narcotic drug.
(3) 6, if the object was an alcoholic beverage,
United States of foreign currency, or a controlled
substance (other than LSD, PCP, or a narcotic drug).
(4) 4, if the object was any other object that
threatened the order, discipline, or security of the
institution or the life, health, or safety of an
individual.
(b) Specific Offense Characteristic
(1) If the defendant was a law enforcement or
correctional officer or employee, or an employee of the
Department of Justice, at the time of the offense,
increase by 2 levels.
(c) Cross Reference
(1) If the defendant is convicted under 18 U.S.C.
§ 1791(a)(1) and is punishable under 18 U.S.C. § 1791(b)(1), the offense level is 2 plus the offense level
from § 2D1.1, but in no event less than level 26.
U.S.S.G. § 2P1.2 (1994).
The parties also agree that subsection (c) applies to Long
because he was convicted under section 1791(a)(1) and was
punishable under section 1791(b)(1). See U.S.S.G. § 2P1.2(c)(1).
The parties do not dispute that the court must therefore look to
the drug quantity table found in section 2D1.1, which provides a
base offense level of 16 for Long. See generally U.S.S.G. §
2D1.1(c)(12) (providing a base offense level of 16 for unlawfully
possessing with intent to distribute “[a]t least 50 G but less
than 100 G of Cocaine.”)
At this point, the parties' readings of the guidelines
diverge. Long argues that the district court erred in applying
the enhancement for abuse of trust under section 3B1.3 for three
reasons. First, he argues, the application of the special
offense characteristic under section 2P1.2(b) precluded the 3B1.3
enhancement. Second, the guidelines required the court to make
all adjustments under Chapter Three of the Guidelines to the
level prescribed by the drug quantity table before it determined
whether that level exceeded the minimum level of 26 provided in
section 2P1.2(c). Finally, Long argues that he did not occupy a
“position of trust,” and therefore the 3B1.3 enhancement did not
apply to him. The Government responds that the district court
properly computed Long's offense level by finding, first, that
his base offense level was 26 because the level determined from
section 2D1.1(c)(12) was less than 26, and then applying the
Chapter Three adjustments (under sections 3B1.3 and 3E1.1) to
that base offense level to reach an offense level of 25.
A.
Long first argues that the court cannot apply a 3B1.3
enhancement to him because it has already applied section
5
2P1.2(b)(1) to him. Section 1B1.1(b) instructs the sentencing
court to “[d]etermine the base offense level and apply any
appropriate specific offense characteristics contained in the
particular guideline in Chapter Two in the order listed.”
U.S.S.G. § S 1B1.1(b) (emphasis added). Long argues that this
instruction required the sentencing court to apply subsections
2P1.2(a) and (b) before it applied subsection 2P1.2(c). Long
then points to the application note for section 2P1.2, which
provides that a court shall not make a section 3B1.3 enhancement
where it has already made an enhancement under section
2P1.2(b)(1). See U.S.S.G. § 2P1.2, comment. (n.1). Thus, Long
contends, the district court erred in applying a 3B1.3
enhancement.
Long's interpretation of these sections would have merit in
light of the application note cited supra, but for the fact that
section 2P1.2(b) simply has not been applied to him. The PSR
clearly recommended no enhancement under subsection (b), and the
transcript of the sentencing hearing indicates that the court
accepted this recommendation, over Long's objection, and did not
make a section 2P1.2(b) enhancement.
We note that the court's substitution of the 3B1.3
enhancement for the 2P1.2(b) enhancement appears to have been
error, however, because the 2P1.2(b) enhancement is for a
specific offense characteristic and must be applied if the facts
6
of the case warrant it. See U.S.S.G. § 1B1.1(b).4 The plain
terms of § 2P1.2(b) appear to apply squarely to this case, and we
see no reason why the district court should not apply that
enhancement on remand.5
B.
Long also argues that the district court erred by applying
the section 3B1.3 enhancement at the wrong point in the
calculation of Long's offense level. Long contends that, under
section 2P1.2(c), all Chapter Three adjustments must be made to
the offense level found by application of the drug table in
section 2D1.1 prior to the determination of whether that level
exceeds the minimum offense level of 26 provided for in section
2P1.2(c). Under Long's approach, his offense level would be 2
(from section 2P1.2(c)) + 16 (from section 2D1.1(c)(12)) + 2 (for
section 3B1.3 enhancement for abuse of position of trust) - 3
(for section 3E1.1 reduction for acceptance of responsibility) =
17. Because this level is less than 26, Long's offense level
4
As we explain in part II.C, infra, the district court
also erred in applying the enhancement under § 3B1.3 for abuse of
a
position of trust.
5
The fact that § 2P1.2(c) may be applicable to Long does
not change this conclusion. See, e.g., United States v. Cruz, 58
F.3d 550, 554 (10th Cir. 1995) (observing that “[t]he increase of
2 levels under § 2P1.2(b) for being a correctional officer does
not turn upon the type of prohibited object involved,” and that
therefore the increase could be applied to a base offense level
determined under § 2P1.2(c)).
7
would be 26.6 See U.S.S.G. § 2P1.2(c).
The Government counters that the court should make such
Chapter Three adjustments only after it determines whether the
level from section 2D1.1 exceeds section 2P1.2(c)'s minimum level
of 26. Under the Government's approach, the district court
applied the guidelines properly: 2 (from section 2P1.2(c)) + 16
(from section 2D1.1(c)(12)) = 18. Because this is less than 26,
then 26 is the base offense level. The Chapter Three adjustments
are then made to reach the final offense level: 26 + 2 (for
section 3B1.3 enhancement) - 3 (for section 3E1.1 reduction) =
25.
In support of his argument, Long cites subsections (b)(1)
and (d) of section 1B1.5, which provide:
(b)(1) An instruction to use the offense level from
another offense guideline refers to the
offense level from the entire offense
guideline (i.e., the base offense level,
specific offense characteristics, cross
references, and special instructions), except
as specifically provided [herein].
. . . .
6
This offense level is actually higher than the level of
25 that the district court actually used. If we agreed with
Long's argument here but concluded that he did occupy a position
of trust, he would clearly be worse off than he was prior to his
appeal. Long was sentenced to 57 months imprisonment, which
falls below the range of 63 to 78 months provided by the
guidelines for a defendant with an offense level 26 and criminal
history category I. See U.S.S.G. ch. 5, Pt. A, sentencing table.
Long's brief does not recognize this possibility; instead,
it implicitly suggests that the enhancement should be made prior
to the comparison with 26, and that the reduction should be made
after the comparison; this approach would yield a level of 23.
Long presents no authority and no reason for this approach, and
we therefore reject it.
8
(d) A reference to another guideline under
subsection (a) or (b)(1) above may direct
that it be applied only if it results in the
greater offense level. In such case, the
greater offense level means the greater final
offense level (i.e., the greater offense
level taking into account both the Chapter
Two offense level and any applicable Chapter
Three adjustments).
U.S.S.G. § 1B1.5 (1994). Long argues that these two subsections
apply to section 2P1.2(c) and direct the district court to make
all Chapter Three adjustments before determining whether offense
level found in section 2D1.1 exceeds 26. The Government contends
that the language regarding “offense level” in section 2P1.2(c)
should be read as “base offense level,” and that the general
application instructions found in section 1B1.1 apply rather than
those found in section 1B1.5. Under this reading, the district
court properly made Chapter Three adjustments to a base offense
level of 26, after determining that 2 plus the base offense level
from § 2D1.1, 16, is less than 26. We agree with the Government.
Neither section 1B1.5(b)(1) nor section 1B1.5(d) support
Long's reading of section 2P1.2. First, section 1B1.5(b)(1) does
not mention Chapter Three enhancements. The focus of that
subsection is on the Chapter Two elements which make up the
offense level: “the base offense level, specific offense
characteristics, cross references, and special instructions.”
U.S.S.G. § 1B1.5(b)(1). Thus, this subsection offers no support
for Long's reading.
Similarly, section 1B1.5(d) does not dictate the result that
9
Long urges. That subsection applies, by its plain terms, only to
cross references which direct that the referenced guideline shall
“be applied only if it results in the greater offense level.”
U.S.S.G. § 1B1.5(d). Once again, Long misreads section 2P1.2(c).
The cross-reference contained in section 2P1.2(c) is simply not
the sort of cross reference described in section 1B1.5(d).
Subsection 2P1.2(c) sets a floor: it directs that the offense
level determined under section 2D1.1 is applied only where the
offense level found in that section, increased by two levels,
yields a level of 26 or higher. See U.S.S.G. § 2P1.2(c).
In contrast, Section 2J1.2 provides an example of the type
of cross-reference to which section 1B1.5(d) clearly applies.
That section provides:
2J1.2. Obstruction of Justice
(a) Base Offense Level: 12
(b) Specific Offense Characteristics
(1) If the offense involved causing or threatening
to cause physical injury to a person, or property
damage, in order to obstruct the administration of
justice, increase by 8 levels.
(2) If the offense resulted in substantial
interference with the administration of justice,
increase by 3 levels.
(c) Cross Reference
(1) If the offense involved obstructing the
investigation or prosecution of a criminal offense,
apply § 2X3.1 (Accessory After the Fact) in respect to
that criminal offense, if the resulting offense level
is greater than that determined above.
U.S.S.G. § 2J1.2 (emphasis added). As the emphasized language in
10
section 2J1.2 indicates, the cross-referenced guideline will
apply only if it is greater than the level determined by
application of subsections 2J1.2(a) and (b).7 In short,
subsection 1B1.5(d) simply does not apply to section 2P1.2.
This reading is not only supported by the terms of the
guidelines, it is also the only reading which makes any sense.
Applying the instruction found in section 1B1.5(d) to section
2J1.2 is appropriate. In a case where the cross reference may
apply, the district court computes the final offense level under
(a) and (b) (including Chapter Three adjustments) and then
computes the final offense level under the referenced section,
2X3.1 (also including Chapter Three adjustments). See U.S.S.G. §
2J1.2(c). Section 2J1.2(c) directs the court to compare these
two results, and apply the greater level as the final offense
level. The key point is that both levels are shaped by any
applicable Chapter Three adjustments.
Applying section 1B1.5(d) to section 2P1.2 as Long argues
would result in a sentence that does not take Chapter Three
adjustments into account in a large number of cases. Under
Long's approach, the final offense level (including Chapter Three
adjustments) is computed under section 2P1.2. This level is the
defendant's final offense level only if it exceeds 26; if not,
the final offense level is 26. Thus, in a large number of these
cases, the final offense level will be 26, regardless of the
7
Section 2D1.12, cited in part II.A, supra, provides an
additional example of a cross reference to which subsection
1B1.5(d) applies.
11
applicable Chapter Three adjustments.
A brief examination of the consequences of Long's
interpretation convinces us that our reading is correct.
Imagine two defendants, X and Y. X seeks to sell cocaine inside
a federal prison. He arranges to purchase cocaine outside the
prison and has made contact with several inmates who will sell
the cocaine for him inside the prison. He approaches Y about
carrying the cocaine into the prison. Y is caught attempting to
enter the prison with 85 grams of cocaine and X and Y are
arrested. Y immediately confesses his role, pleads guilty, and
provides assistance to law enforcement personnel. X refuses to
cooperate with law enforcement personnel and testifies falsely at
his trial.
In this hypothetical case, Y has a strong argument that he
is entitled to two Chapter Three reductions: three levels under
section 3E1.1 for acceptance of responsibility and two levels
under section 3B1.2(b) for being a minor participant. Under
Long's reading, Y's offense level under section 2P1.2 would be 2
(from section 2P1.2(c)) + 16 (from section 2D1.1(c)(12)) - 3 (for
section 3E1.1 reduction) - 2 (for section 3B1.2(b) reduction) =
13. On the other hand, two Chapter Three enhancements arguably
apply to X: four levels under section 3B1.1(a) for being an
organizer or leader of the criminal activity, and two levels
under section 3C1.1 for obstructing the administration of
justice. His offense level under Long's interpretation is
therefore 2 (from section 2P1.2(c)) + 16 (from section
12
2D1.1(c)(12) + 4 (for section 3B1.1(a) enhancement) + 2 (for
section 3C1.1 enhancement) = 24. In each case, the minimum
offense level under section 2P1.2(c) would operate, and each
defendant would have a final offense level of 26. Chapter Three
adjustments are designed to avoid precisely this result:
virtually the same treatment for two defendants whose culpability
and remorse differ markedly. See generally United States v.
Werlinger, 894 F.2d 1015, 1018 (8th Cir. 1990) (“The Sentencing
Commission clearly intended the adjustments under Chapter Three
of the Guidelines to take into account circumstances that, for
sentencing purposes, aggravate or mitigate the seriousness of the
offenses categorized in Chapter Two.”) There is no indication
that section 2P1.2(c) intends this result.
C.
Long makes a final argument on this first issue: that
section 3B1.3 does not apply to him because he did not abuse a
position of trust. The two level enhancement under section 3B1.3
applies to Long only if he (1) occupied a position of trust, and
(2) this position of trust significantly facilitated the
commission or concealment of his offense. See United States v.
Kummer, 89 F.3d 1536, 1547 (11th Cir. 1996). Long contends that
the government here has not shown the first element; he
acknowledges that the Bureau of Prisons “trusted” him in the
colloquial sense but argues that he did not occupy a “position of
trust” as that term is defined by § 3B1.1. The Government
13
counters that Long occupied a position of trust because prison
officials did not search Long when he entered the prison; when
Long attempted to bring drugs into the prison, he abused this
position of trust.
We hold that Long did not occupy a “position of trust” as
section 3B1.3 defines that term. The Government's reading would
extend to virtually every employment situation because employers
“trust” their employees. The application note to section 3B1.3
clearly indicates that the guideline does not intend coverage
this broad:
“Public or private trust” refers to a position of
public or private trust characterized by professional
or managerial discretion (i.e., substantial
discretionary judgment that is ordinarily given
considerable deference). Persons holding such
positions ordinarily are subject to significantly less
supervision than employees whose responsibilities are
primarily non-discretionary in nature. . . . This
adjustment, for example, would apply in the case of an
embezzlement of a client's funds by an attorney serving
as a guardian, a bank executive's fraudulent loan
scheme, or the criminal sexual abuse of a patient by a
physician under the guise of an examination. This
adjustment would not apply in the case of an
embezzlement or theft by an ordinary bank teller or
hotel clerk because such positions are not
characterized by the above-described factors.
U.S.S.G. § 3B1.3, comment. (n.1) (emphasis added). See also
United States v. West, 56 F.3d 216, 220 (D.C. Cir. 1995) (noting
that “the commentary's focus on positions characterized by
professional or managerial discretion places a significant limit
on the types of positions subject to the abuse-of-trust
enhancement”).
To the extent that Long had any discretion in carrying out
14
his duties as a food service foreman, the Government has failed
to demonstrate that Long exercised that discretion to bring
cocaine into the prison. Instead, the Government points to the
fact that, as an employee of the prison, Long could enter the
prison without being searched. The prison extended this same
level of trust to all prison employees. The Government argues,
therefore, that an enhancement for an abuse of a position of
trust would apply to any Bureau of Prisons employee who brought
cocaine into the prison. The application note cited above
indicates that section 3B1.3 simply does not extend to every
employment situation. Accordingly, we hold that the district
court erred in applying a two-level increase under section 3B1.3
to Long's offense level.
III.
Long contends that the district court erred in imposing a
$2,000 fine without making explicit findings as to his ability to
pay a fine. Long claims that he is indigent and lacks the
ability to pay a fine. As evidence for this, Long points to the
fact that court-appointed counsel represented him at trial,8 that
he must pay $700 per month in child support, and that, given his
felony conviction, he is unlikely to be able to return to his
8
Although we acknowledge that the representation of Long
by appointed counsel may indicate his inability to pay, see
U.S.S.G. § 5E1.2, comment. (n.3), that fact is not determinative.
15
pre-conviction earning capacity.9
We affirm the district court's imposition of a fine of
$2,000 in this case. We review a fine set by the district court
for clear error. United States v. Lombardo, 35 F.3d 526, 527
(11th Cir. 1994). Section 5E1.2(a) provides that “[t]he court
shall impose a fine in all cases, except where the defendant
establishes that he is unable to pay and is not likely to become
able to pay.” Given Long's offense level of 25, the guidelines
required the district court to impose a fine of between $10,000
and $100,000, see U.S.S.G. § 5E1.2(c)(3), unless it determined,
inter alia, that he could not pay, and would not likely become
able to pay, a fine within that range. See U.S.S.G. § 5E1.2(f).
The guidelines provide a list of seven factors that the court
must consider when setting a fine. See U.S.S.G. § 5E1.2(d)10;
9
With regard to his earning capacity, Long acknowledges
that he made over $40,000 per year working at the prison. He
argues, however, that his felony conviction in this case will
render him unable to obtain a job earning a similar wage in the
future. He therefore suggests that the court should have
considered his income prior to working at the prison as the
relevant one for purposes of determining his ability to pay. The
PSR indicates his income prior to working at the prison was
approximately $17,000.
10
Section 5E1.2(d) provides:
In determining the amount of the fine, the court shall
consider:
(1) the need for the combined sentence to reflect the
seriousness of the offense . . . , to promote respect
for the law, to provide just punishment and to afford
adequate deterrence;
(2) any evidence presented as to the defendant's
ability to pay the fine (including ability to pay over
a period of time) in light of his earning capacity and
16
see also Lombardo, 35 F.3d at 528-529.
While the district court did not make explicit findings of
fact on the record regarding Long's ability to pay, the record
clearly indicates that the district court considered Long's
current financial situation and future prospects. See id. at 530(holding that where “the record contains sufficient information
with respect to the seven factors [listed in section 5E1.2(d)] to
permit us to find that the district court did not clearly err in
imposing or in setting the amount of the fine, . . . we will not
reverse merely because the district court failed to make specific
findings on each of the seven factors”). The issue of Long’s
ability to pay a fine was raised in Long's objections to the PSR
and at the sentencing hearing. The district court departed
downward from the guidelines range of $10,000 to $100,000 in
order to impose a $2,000 fine. Moreover, the court provided that
Long could pay the fine on the terms ordered by the probation
financial resources;
(3) the burden that the fine places on the defendant
and his dependents relative to alternative punishments;
(4) any restitution or reparation that the defendant
has made or is obligated to make;
(5) any collateral consequences of conviction,
including civil obligations arising from the
defendant's conduct'
(6) whether the defendant previously has been fined for a
similar offense; and
(7) any other pertinent equitable considerations.
U.S.S.G. § 5E1.2(d) (emphasis added).
17
office while Long serves his term of supervised release. Over
the course of Long's three years of supervised release, he would
have to pay less than $56 per month (plus interest) to pay the
$2,000 fine. We cannot conclude that the district court was
clearly erroneous in imposing this fine on Long.
IV.
In conclusion, we hold that the district court erred in
increasing Long’s offense level under section 3B1.3; thus, we
VACATE the part of Long’s sentence calling for a term of
imprisonment and REMAND the case for further proceedings. We
find no error in the fine the district court imposed, and
therefore AFFIRM that portion of the case.
AFFIRMED, in part; VACATED, in part, and REMANDED.
18