United States v. Donald Solomon , 766 F.3d 360 ( 2014 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-3108
___________
UNITED STATES OF AMERICA
v.
DONALD ABRAHAM SOLOMON,
Appellant
__________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-11-cr-00245-001)
District Judge: Honorable Joy Flowers Conti
___________
Argued June 4, 2014
Before: HARDIMAN, SCIRICA and ROTH, Circuit Judges.
(Filed: September 15, 2014 )
Robert L. Eberhardt [Argued]
Rebecca R. Haywood
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Attorneys for Plaintiff-Appellee
Elisa A. Long [Argued]
Office of Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222
Attorney for Defendant-Appellant
____________
OPINION
____________
HARDIMAN, Circuit Judge.
Donald Solomon, the former police chief of a hamlet
in Southwestern Pennsylvania, was sentenced to more than
eleven years in prison after pleading guilty to corruption
charges. In this appeal, Solomon 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, § 3B1.3, is a two-level
enhancement for abuse of a position of trust. Both challenges
present questions of first impression.
2
I
A
In 2009, Solomon became the police chief of the
Borough of East Washington, Pennsylvania, after a decade as
a part-time officer. As chief, he was paid $36,100 a year and
was unable to moonlight because he had to be available
around the clock. At about the same time, Solomon and his
wife divorced after more than fifteen years of marriage.
Without going into the sordid details of Solomon’s personal
life, it suffices to note that his behavior after his divorce
attracted the attention of federal authorities and caused them
to engage an unidentified confidential informant (CI)—
described by Solomon as “an erstwhile friend”—to probe
Solomon’s criminal tendencies. Solomon Br. 4.
On June 30 and July 1, 2011, the CI met with Solomon
to discuss providing security services for an unidentified third
person. Solomon agreed to run a criminal history check on
the third person, and also asked the CI if the person wanted to
Solomon to provide security, as he had “nothing to do on the
weekends.” The CI said that Solomon might be able to work
with him on the job, which required following a vehicle and
ensuring that nothing happened to it. The CI told Solomon he
would be paid at least “a grand,” to which Solomon replied,
“[t]here has got to be no paper trail . . . under the table.”
When Solomon called to inquire about the status of the
criminal history check, he was told the person seeking
security had a lengthy criminal record; upon reviewing the
record with the CI at the police station later that day,
Solomon observed that the security job “could be drug
related.” In reference to the third person, Solomon
responded: “Tell him I’m the best cop money can buy.”
3
Solomon met with the CI again on July 8, 2011, and
discussed providing security for a 4-kilogram cocaine deal for
which they would each be paid $500 per kilogram. On July
27, 2011, Solomon and the CI met with the third person,
“Joseph,” who was really an undercover FBI agent posing as
a drug trafficker. At the meeting, Solomon agreed to provide
protection for a multi-kilogram cocaine shipment, and also
agreed to wear his police uniform and sit in his police car
while doing so. Joseph, in turn, agreed to pay Solomon and
the CI $500 per kilogram for their assistance. Solomon also
asked Joseph for advance notice so he could divert other
officers away from the drug deal. On August 17, 2011, the CI
gave Solomon $1,000 cash from Joseph as a “good faith”
payment in advance of the shipment.
On August 23, 2011, the staged drug deal took place in
a church parking lot in East Washington. Solomon had a
shotgun, an AR-15 rifle, and a 9mm handgun with him as he
sat inside his marked police cruiser with the CI. When the
transaction was completed, Joseph paid Solomon $1,500, and
Solomon then gave the CI $700. Solomon agreed to provide
security for future shipments, and exchanged phone numbers
with Joseph. He also said he would try to obtain two law
enforcement-restricted Tasers for Joseph, for $1,000 each;
Joseph made clear that he planned to use the Tasers to collect
drug debts.
The next day, Solomon confirmed in a text message to
Joseph that he would buy the Tasers for a total of $1,700; the
CI paid Solomon in cash a week later. On September 9,
2011, Solomon and the CI went to a law enforcement
equipment store, where Solomon used his official position to
purchase two Tasers for $1,569.90. Afterward, Solomon sent
a text to Joseph, telling him he had the two Tasers.
4
On September 14, 2011, Solomon spoke to Joseph on
the phone and agreed to provide protection for a 10-kilogram
cocaine shipment on September 26 or 27 while wearing his
police uniform. Joseph confirmed via text that the transaction
would occur on the 26th, and Solomon agreed to be there. On
the 26th, Solomon gave Joseph the Tasers, and instructions on
how to use them, in a local commuter parking lot. Soon after,
Joseph and a fellow undercover agent engaged in another fake
drug deal, while Solomon looked on from his police car.
Joseph then gave Solomon $5,000 for protecting that
transaction, as well as $300 as a tip for acquiring the Tasers.
In total, Solomon was paid $8,800 in connection with the
drug transactions and Tasers.
On October 26, 2011, Solomon was indicted on three
counts of extortion under color of official right, in violation of
the Hobbs Act, 18 U.S.C. § 1951. On January 4, 2013, he
entered an open plea of guilty.
B
The United States Probation Office prepared a
Presentence Investigation Report (PSR), calculating
Solomon’s Sentencing Guidelines range under § 2C1.1,
which applies to extortion under color of official right. After
deducting three levels for acceptance of responsibility,
Solomon’s offense level was 19. He had no prior criminal
history, so his initial Guidelines range was 30 to 37 months’
imprisonment. Critical to this case and unfortunately for
Solomon, § 2C1.1 includes a cross-reference, § 2C1.1(c)(1),
which states:
If the offense was committed for the purpose of
facilitating the commission of another criminal
5
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.
Because Solomon believed he was providing protection for
two cocaine deals and obtained restricted Tasers with the
understanding they would be used to collect drug debts, the
Probation Office determined that Solomon had accepted the
payments “for the purpose of facilitating” cocaine trafficking.
Pursuant to the cross-reference, the Probation Office
calculated Solomon’s offense level under the Guideline for
conspiracy to commit cocaine trafficking, § 2D1.1, to
determine whether it was greater than Solomon’s offense
level under the Guideline applicable to his Hobbs Act crime.
Because of the large quantity of (fake) cocaine involved (at
least 5 kilograms but less than 15 kilograms), the base offense
level was 32, plus a 2-level enhancement for possession of a
dangerous weapon on account of the guns Solomon had with
him while he was in his police car “protecting” the drug
transaction. After applying a 3-level reduction for acceptance
of responsibility, Solomon’s offense level under the drug
trafficking Guideline was 31, resulting in a range of 108 to
135 months, far higher than under the Hobbs Act.
Solomon argued that the cross-reference should not
apply because he did not commit and could not have
committed “another criminal offense,” because everyone else
involved in the reverse sting that ensnared him was working
for the government. The District Court disagreed.
After the issuance of the original PSR, the Government
also asked the District Court to apply an additional 2-level
6
enhancement for abuse of a position of trust pursuant to §
3B1.3, which would further increase Solomon’s Guidelines
range to 135 to 168 months. Solomon objected on the ground
that Application Note 6 of § 2C1.1—the section under which
Solomon’s sentence originated—expressly prohibits the
application of the abuse of a position of trust enhancement.
The Government countered that Application Note 6 did not
apply because Solomon was being sentenced under § 2D1.1
(drug trafficking), not under § 2C1.1 (Hobbs Act). The
District Court agreed with the Government and sentenced
Solomon to 135 months, the bottom of his final Guidelines
range. This timely appeal followed.
II1
On appeal, Solomon 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. We 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) (en
banc).
A
Solomon first claims that the District Court erred by
sentencing him under the cocaine trafficking Guideline
pursuant to the § 2C1.1(c)(1) cross-reference because he
“could not be properly charged with or convicted of ‘another
criminal offense.’” Solomon Br. 14. Specifically, he contends
1
The District Court had jurisdiction under 18 U.S.C. §
3231. We have jurisdiction under 28 U.S.C. § 1291.
7
that he “could not properly be charged with intent to
distribute or distribution of a controlled substance, because
that offense requires that the defendant distribute actual drugs
or possess with the intent to distribute actual drugs.” Id. The
drug deals in Solomon’s case were staged by the
Government, using fake drugs. Solomon also claims the
cross-reference should not apply because he could not
properly be charged with a drug distribution conspiracy since
“all of the other participants in the purported conspiracy were
government agents.” Id. Thus, he argues, there was no “other
offense” and no conspiracy.
Solomon’s arguments on this issue fail because they
run contrary to the clear language of the Guidelines. He
pleaded guilty to three counts of extortion under color of
official right, a crime covered by Part C of the Guidelines
(“Offenses Involving Public Officials and Violations of
Federal Election Campaign Laws”). The applicable Guideline
sets a base offense level of 14 for any defendant who was a
public official, § 2C1.1(a), and also increases the offense
level if certain characteristics are present, such as more than
one bribe or extortion. § 2C1.1(b). It then lists the cross-
reference at issue in this appeal, which reads:
If the offense was committed for the purpose of
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 above.
§ 2C1.1(c)(1) (emphasis added). According to Application
Note 5, “resulting offense level” means “the final offense
level (i.e., the offense level determined by taking into account
8
both the Chapter Two offense level and any applicable
adjustments from Chapter Three, Parts A-D.)” The
Background Commentary to § 2C1.1(c)(1) adds: “For
example, if a bribe was given to a law enforcement officer to
allow the smuggling of a quantity of cocaine, the guideline
for conspiracy to import cocaine would be applied if it
resulted in a greater offense level.”
The Guidelines thus plainly do not require that the
defendant could have been charged with “another criminal
offense”—only that the purpose of the bribe or extortion was
to facilitate the commission of another crime. This critical
distinction refutes Solomon’s argument. The Government
does not contend, nor do the Guidelines require, that Solomon
actually facilitated another criminal offense. Rather, he
pleaded guilty to receiving illegal payments and taking
actions that he thought were furthering cocaine trafficking.
This doubly corrupt purpose—as opposed to, for instance, a
public official accepting payments in exchange for taking an
otherwise legal action—explains why the Guidelines provide
for increased punishment of defendants covered by the cross-
reference.
The few appellate courts that have considered the
applicability of the cross-reference have reached the same
conclusion we reach today. In United States v. Ruiz, the Court
of Appeals for the Fifth Circuit held that the cross-reference
applied to a Border Patrol agent who accepted payments for
protecting a cocaine deal that turned out to be a sting
operation. 621 F.3d 390, 392–93 (5th Cir. 2010) (per curiam).
Like Solomon, Ruiz challenged the cross-reference by
arguing that he could not have entered into a conspiracy with
government agents. Id. at 393–94. The Fifth Circuit
disagreed, noting that “because Ruiz took bribes to facilitate
9
the smuggling of cocaine, his offense falls squarely under the
scenario the [Guideline Background] describes.” Id. at 395.
Ruiz was consistent with previous decisions of panels of the
Fifth Circuit. See United States v. Williams, 332 F. App’x
937, 939–40 (5th Cir. 2009) (“The predicate for application of
§ 2C1.1(c)(1) is not the existence of a conspiracy, but rather
that the purpose of the offense was to facilitate the
commission of another criminal offense.”); United States v.
Carr, 303 F. App’x 166, 169 (5th Cir. 2008) (“[T]he issue of
whether a conspiracy between Carr and the informant was
legally impossible does not affect the applicability of the
cross reference. By its plain language, § 2C1.1(c)(1) requires
only that the primary offense be committed ‘for the purpose
of facilitating’ another offense. . . . USSG § 2C1.1(c)(1) does
not by its language or stated purpose require that the elements
of conspiracy be established.”).
Like the Fifth Circuit, a panel of the Fourth Circuit
reached much the same conclusion, writing that “[a]
defendant may be sentenced under § 2C1.1(c)’s cross-
reference provision for a fictitious crime created via a sting
operation,” including based on the fictitious amount of
“drugs” involved. United States v. Brannen, 145 F.3d 1326(table), 1998 WL 230823, at *2 (4th Cir. May 11, 1998); cf.
United States v. Shenberg, 89 F.3d 1461, 1474–75 (11th Cir.
1996) (affirming sentence under cross-reference when
defendant provided information under belief that it would
result in murder).
Solomon makes a policy argument that sentencing him
as a cocaine trafficker thwarts the Guidelines’ intent to
balance a defendant’s actual conduct with his charged
10
conduct. U.S.S.G. Ch. 1, Pt. A, Policy Statement 4(a).2
According to Solomon, applying the cross-reference causes
him to be sentenced for neither his real offense nor his
charged offense. Rather, he was sentenced as if he committed
conspiracy to commit cocaine trafficking, an offense he could
not have committed on these facts despite being charged with
violating the Hobbs Act. This did not stop the Fifth Circuit
from applying the cross-reference in Ruiz, or its panels from
doing so in Williams and Carr, but Solomon attempts to
distinguish his case by arguing that the Fifth Circuit did not
consider his policy argument. He additionally notes that
Shenberg, Brannen, and United States v. Burke, 431 F.3d 883(5th Cir. 2005), involved actual conspiracies. Even conceding
that Solomon’s case is different, however, his argument runs
headlong into the text of the cross-reference, which says
nothing about whether other conduct could have been charged
and certainly does not require it. Moreover, the cross-
reference is part of the Hobbs Act sentencing Guideline.
2
See also United States v. Baird, 109 F.3d 856, 869
(3d Cir. 1997):
The Guidelines are, at bottom, a
modified real offense system . . . . More
specifically, they are a mix of a charge offense
system and a pure real offense system in that it
bases a sentence on both the formal offense of
conviction and on the actual conduct of the
defendant. . . . Therefore, it is clear that the
Guidelines envisioned that sentencing courts
would consider at least some conduct for which
a defendant was not actually charged.
11
We recognize Solomon’s understandable frustration
with receiving a significantly higher sentence based on a
quantity of fake drugs determined at the discretion of the
Government. Had “Joseph” asked Solomon to “provide
protection” for a shipment involving only 1 kilogram of
cocaine, for instance, Solomon’s offense level would have
been 27 and his Guidelines range 70 to 87 months, a little
more than half his actual Guidelines range. Then-Chief Judge
Edith Jones addressed this concern in Williams, which was
factually similar to Solomon’s case. There, Williams twice
agreed to “escort a shipment of cocaine as it passed through
the county in exchange for cash payments from an undercover
agent.” 332 F. App’x at 938. He believed the first shipment
contained 5 kilograms and the second 10 kilograms. Id. Like
Solomon, Williams had no previous criminal record. Id. A
panel of the Fifth Circuit affirmed the application of the
cross-reference in a per curiam opinion. Id. In a footnote,
Judge Jones agreed that the sentence “must be affirmed under
applicable law,” but also opined that she “strongly believe[d]
that the government miscarried justice by insisting” that
Williams “be sentenced . . . on the basis of contrived amounts
of non-existent cocaine.” Id. at 937 n.1.
Although we have not spoken to the issue, other courts
have raised similar concerns about the potential for
government manipulation of the Guidelines range in reverse
sting operations. See United States v. Sed, 601 F.3d 224, 229–
30 (3d Cir. 2010). However, for purposes of Solomon’s
appeal, we note that the Guidelines address the reverse-sting
context by focusing on the agreed-upon amount of the
controlled substance to determine the quantity of drugs
involved for sentencing purposes. § 2D1.1 cmt. 5. While it is
true that the Government suggested specific quantities of
12
cocaine, it is also true that Solomon willingly acceded to the
plan at a time when he still believed real drugs were involved.
See Brannen, 1998 WL 230823 at *1 (“Although [the
quantity of drugs] was suggested by the informant, Brannen
never objected or requested that the informant reduce the
quantity.”).
Solomon next contends 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.” Solomon Br. 16. We are
unpersuaded. The facts make clear that Solomon accepted
payments with the intent to facilitate cocaine trafficking.
Therefore, we “apply the offense guideline applicable to a
conspiracy to commit [cocaine trafficking].” § 2C1.1(c)(1).
This is so because 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
example provided in the Guidelines Background—“if a bribe
was given to a law enforcement officer to allow the
smuggling of a quantity of cocaine, the guideline for
conspiracy to import cocaine would be applied”3—only
reinforces our interpretation.
Nor is Solomon correct that if any cross-reference
encompassed his conduct, it was § 2C1.1(c)(2), which applies
“[i]f the offense was committed for the purpose of
concealing, or obstructing justice with respect to, another
criminal offense.” Although Solomon asked the CI for
3
§ 2C1.1 Commentary, Background.
13
advance notice of the transaction so he could assign other
officers away from the meeting place, his conduct was more
akin to “facilitation” than “concealment” or “obstruction.”
Facilitation is prospective; the defendant accepts payments to
further the commission of a crime, which is what happened
here. By contrast, concealment and obstruction are
retrospective, and apply after a crime has already occurred
and the defendant accepts payments to cover it up or to
impede an ongoing investigation. See, e.g., United States v.
Pompey, 17 F.3d 351, 352–53 (11th Cir. 1994) (bribe paid to
law enforcement officials to drop cocaine charges “was for
the purpose of obstructing justice in another criminal offense”
such that Guidelines cross-reference could apply).
Finally, we decline Solomon’s request to apply the rule
of lenity, because the language of § 2C1.1(c)(1) is not
ambiguous. Solomon argues that the Guidelines do not define
“another criminal offense,” leaving it unclear “whether [it]
means an actual offense for which a defendant could have
been properly charged or convicted, or something else.”
Solomon Br. 20. Again, the Guidelines state that for the
cross-reference to apply, the defendant must accept payments
“for the purpose of facilitating the commission of another
criminal offense.” § 2C1.1(c)(1). The key word is
“purpose”—i.e., the reason the defendant accepted the
payments. Regardless of whether Solomon could be charged
with conspiracy to traffic cocaine, he knew he was accepting
money to further what he believed to be a drug transaction—
“another criminal offense” above and beyond Hobbs Act
extortion. This is not ambiguous; it is easily distinguishable
from conduct that would not qualify, such as if Solomon had
accepted a payment to write a parking ticket that he could
have written legally. Accordingly, the cross-reference applies
14
to Solomon’s conduct and the fact that the Guideline is
susceptible to criticism on policy grounds does not render it
ambiguous. The District Court did not err in this regard.
B
Solomon also challenges the District Court’s
application of the 2-level enhancement for abuse of a position
of trust, § 3B1.3,4 which increased his Guidelines range from
108–135 months to 135–168 months. He argues that the
enhancement cannot apply to sentences originating under §
2C1.1—even those, like his, with a Guidelines range
ultimately determined pursuant to a cross-reference. The
Government disagrees, contending that the enhancement
applies because once the cross-reference was triggered,
Solomon was actually sentenced under § 2D1.1. In light of
the language, context, and history of the Guidelines at issue,
we believe Solomon has the better of the argument.
Although our consideration of this issue requires
careful analysis of several relevant Guidelines, the parties’
dispute essentially boils down to one question: was Solomon
sentenced exclusively under § 2D1.1? If so, then there is no
impediment to the application of the abuse of trust
enhancement against him. Viewed in a vacuum, § 3B1.3
would apply to Solomon because it is not “included in the
4
“If the defendant abused a position of public or
private trust . . . in a manner that significantly facilitated the
commission or concealment of the offense, increase by 2
levels. This adjustment may not be employed if an abuse of
trust or skill is included in the base offense level or specific
offense characteristic.”
15
base offense level or specific offense characteristic” of the
cross-reference (§ 2D1.1) that applies to him. But Application
Note 6 to § 2C1.1, the Guideline governing Solomon’s
convictions, states: “Do not apply § 3B1.3 (Abuse of Position
of Trust or Use of Special Skill).” This prohibition apparently
accounts for the fact that § 2C1.1 already provides a 2-level
increase if the defendant was a public official and allows the
court to apply an even higher offense level—through the §
2C1.1(c)(1) cross-reference—if that official solicited or
received payments “for the purpose of facilitating the
commission of another offense.”
To understand how these two provisions interact in
this case, we must carefully look to Guidelines language
governing cross-references. As noted previously,
§ 2C1.1(c)(1) directs a court to “apply the offense guideline
applicable to conspiracy to commit [another] offense . . . if
the resulting offense level is greater than that determined
[under the ordinary Hobbs Act guidelines].” However, a court
cannot make that comparison without ascertaining the other
offense level and determining how it should be calculated.
Here, “the ‘resulting offense level’ means the final offense
level (i.e., the offense level determined by taking into account
both the Chapter Two offense level and any applicable
adjustments from Chapter Three, Parts A-D).” § 2C1.1,
Application Note 5 (emphasis added). How does the
sentencing judge determine which Chapter Three adjustments
are applicable? According to Guidelines General Application
Principle § 1B1.5(c),5 they are “determined in respect to the
5
Part of Guidelines section § 1B1.5, “Interpretation of
References to Other Offense Guidelines.”
16
referenced offense guideline, except as otherwise expressly
provided.” (emphasis added).
The parties here diverge over the meaning of “except
as otherwise expressly provided.” In Solomon’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. To the Government, however, “except as
otherwise expressly provided” actually means “except as
otherwise expressly provided in the cross-referenced
Guideline.” Under this reading, § 2C1.1’s prohibition is
irrelevant to the calculation of Solomon’s offense level under
the cocaine trafficking Guideline, because that occurs under
§ 2D1.1, which does not forbid a court from applying the
abuse of trust enhancement.
The parties’ disagreement requires us to determine
whether § 2C1.1’s express prohibition on applying the abuse
of trust enhancement extends to offense levels calculated
under the cross-reference, which necessarily implicates other
Guidelines. For several reasons, we conclude that it does.
First, this result makes sense under an order-of-
operations approach. To determine 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
17
Application Note 6. In addition, by the time the court makes
the comparison, it will have already calculated both possible
outcomes, so no further enhancements can apply.
Stated another way, 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. Even if a defendant ultimately receives
an increased offense level under the cross-reference, as
Solomon did, 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, courtesy
of the cross-reference.
The plain language of the Guidelines also supports
Solomon’s argument. Section 1B1.5(c) states that in cross-
reference cases, Chapter Three adjustments “are determined
in respect to the referenced offense guideline, except as
otherwise expressly provided.” Here, § 2C1.1 contains an
express provision, Application Note 6, stating that a specific
Chapter Three adjustment (the abuse of trust enhancement)
does not apply. We cannot ignore this, particularly because
the Government does not point to other Guidelines language
that supports an alternative interpretation or indicates that a
sentencing court abandons § 2C1.1 when applying the cross-
reference. Instead, the Government simply urges us to limit
the reach of “except as otherwise expressly provided” and
read Application Note 6 as applying only to offense levels
calculated under § 2C1.1, not those that use the cross-
reference. We are more persuaded by Solomon’s view
because Application Note 6 simply states: “Do not apply
§ 3B1.3 (Abuse of Position of Trust or Use of Special Skill).”
18
It does not allow for any exceptions. Therefore, we believe it
encompasses sentences that rely on the cross-reference to
determine the offense level.
The history of § 2C1.1 also bolsters our conclusion,
because before November 2004 the relevant application note
did contain an exception for cases in which the offense level
was determined under a cross-reference. It stated:
Do not apply § 3B1.1 (Abuse of Position of
Trust or Use of Special Skill), except where the
offense level is determined under § 2C1.1(c)(1),
(2), or (3). In such cases, an adjustment from §
3B1.1 (Abuse of Position of Trust or Use of
Special Skill) may apply.
§ 2C1.1, Application Note 3 (2003) (emphasis added).
Amendment 666, a November 2004 revision of the public
corruption Guidelines, changed the language to its current
form: “Do not apply § 3B1.3 (Abuse of Position of Trust or
Use of Special Skill).” Although the “Reason for
Amendment” section of Amendment 666 does not explain
why the language was changed, it would be improper for us
to give no effect to the Sentencing Commission’s amendment.
See, e.g., Nyhuis v. Reno, 204 F.3d 65, 72 (3d Cir. 2000) (“In
interpreting [an] alteration in [statutory] language, we must
presume, as always, that th[e] amendment was intended to
have ‘real and substantial effect.’” (quoting Stone v. I.N.S.,
514 U.S. 386, 397 (1995))). Under the Government’s reading,
Solomon would lose under both the prior and current
versions, even though the Guideline once provided for
application of the enhancement in cross-reference cases and
19
no longer does. We cannot accept the Government’s tacit
insistence that the amendment does no work.6
6
Contrary to the dissent’s contention, our
interpretation of the revised cross-reference comports with
Amendment 666’s stated purpose of “increas[ing] punishment
for bribery, gratuity, and ‘honest services’ cases” and
accounts for a defendant’s status as a public official. This is
so because the cross-reference applies only if the offense
level under the cross-referenced Guideline is higher than the
§ 2C1.1 offense level, which already takes public official
status into account. Prior to Amendment 666, § 2C1.1 set the
base offense level at 10 for all defendants. Amendment 666
increased the base offense level to 14 for public officials,
compared to 12 for all other defendants. Thus, the revised
Guideline already includes a two-level increase for public
officials. This helps explain why the abuse of trust
enhancement no longer applies when the cross-reference is
used—it is incorporated into the base offense level instead.
Similarly, it is incorrect to state, as the dissent does,
that absent the abuse of trust enhancement, “the offense level
[under the cross-reference] would be the same as if a member
of the general public had committed this cross-referenced
crime.” This elides the distinction between a sentence under
the § 2C1.1 cross-reference and a sentence directly under
§ 2D1.1. Had Solomon been convicted of cocaine trafficking,
his offense level would have been determined directly under §
2D1.1, and he would have been eligible for the abuse of trust
enhancement. But he was convicted of violating the Hobbs
Act. Consequently, his sentence should not be compared to
one imposed upon a defendant who actually committed a
drug offense.
20
The Government correctly notes that the amended
language did not stop a panel of the Fifth Circuit from
concluding that the enhancement could still apply in cross-
reference cases. See United States v. Carr, 303 F. App’x 166
(5th Cir. 2008). Indeed, the District Court also looked to
Carr, which appears to be the only case to take up this issue
based on the current Guidelines language, in applying the
enhancement to Solomon’s sentence. In Carr, the panel
acknowledged the changed language of the § 2C1.1
application note, but declared conclusorily that it “does not
warrant a different result” than that reached in cases under the
previous language. Id. at 170. Although the panel noted §
1B1.5(c)’s “except as otherwise expressly provided” language
on applying Chapter Three adjustments, it did not analyze it
or otherwise proceed as if it might apply. Instead, it merely
stated that the application notes to § 2C1.1 do not apply “once
the offense level is determined pursuant to the cross-
referenced guideline.” Id. at 171.
For the reasons noted already, we are convinced that
Carr got the timing wrong. A court can apply the cross-
reference—and thus, rely on a different Guidelines range to
sentence a defendant—only after calculating the offense level
under both § 2C1.1 and the cross-referenced Guideline (here,
§ 2D1.1), including “any applicable enhancements” (§ 2C1.1,
Application Note 5) and determining which is higher. Here,
the District Court calculated the final offense level under §
2C1.1 and concluded it was 19. It then stated that “the
guideline computations related to . . . drug distribution[]
produces the higher overall offense level” and that
“[a]ccordingly, the guideline computations will be calculated
under U.S.S.G. § 2D1.1.” A3. In this case, that would be true
regardless of when any applicable enhancements were
21
applied, but the Guidelines nonetheless direct the court to
calculate the sentence under the cross-referenced Guideline,
including enhancements, before determining whether to use
the offense level under § 2C1.1 or the cross-reference. These
calculations and analyses all take place pursuant to § 2C1.1,
which prohibits the application of the abuse of trust
enhancement. Arguing that Solomon was “not sentenced
under [§ 2C1.1] because of the application of the cross
reference,” as the Government does, is thus not entirely
accurate. Solomon’s final Guidelines range was determined
by the higher offense level of § 2D1.1, but he was sentenced
pursuant to § 2C1.1, the Guideline applicable to his crime of
conviction.
We thus conclude 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 we conclude the District Court erred
in applying the abuse of trust enhancement, we must remand
for resentencing, as on this record we “cannot presume [the
District Court] would have imposed the same sentence, given
the opportunity to consider the correctly calculated
Guideline.” United States v. Langford, 516 F.3d 205, 217 (3d
Cir. 2008). Of course, we leave to the District Court’s
discretion the determination of an appropriate sentence in
light of the corrected Guidelines range of 108 to 135 months.
* * *
For the foregoing reasons, we will affirm the District
Court’s application of the cross-reference but reverse its
application of the abuse of trust enhancement. We therefore
22
vacate Solomon’s sentence and remand for resentencing in
accordance with this opinion.
23
United States v. Solomon
No. 13-3108
_________________________________________________
ROTH, Circuit Judge, dissenting:
Although I agree with the majority that the District
Court properly applied the cross reference in § 2C1.1(c)(1), I
do not believe that the application notes in § 2C1.1 precluded
the District Court from applying an adjustment for breach of
trust pursuant to § 3B1.3. Rather, I would hold that sentences
calculated pursuant to a cross reference are not limited by the
restrictions on adjustments applicable to the original
Guideline, unless the Guidelines expressly make those
restrictions applicable when using a cross reference.1 I
therefore respectfully dissent.
Solomon was eligible to receive a § 3B1.3 adjustment
for abuse of trust because his sentence was calculated
pursuant to § 2D1.1, not § 2C1.1. The Guidelines instruct
that “[i]f the offense level is determined by a reference to
another guideline . . . the adjustments in Chapter Three
(Adjustments) also are determined in respect to the referenced
1
As the majority notes, a panel of the Fifth Circuit, in a non-
precedential opinion, has reached the same conclusion.
United States v. Carr, 303 F. App’x 166 (5th Cir. 2008). In a
later precedential opinion, the Fifth Circuit has also affirmed
application of an abuse-of-trust increase when applying the
cross reference in § 2C1.1(c)(1). See United States v. Ruiz,
621 F.3d 390 (5th Cir. 2010).
offense guideline, except as otherwise expressly provided.”
Id. § 1B1.5(c). Section 2C1.1 does not “expressly provide[]”
that the sentencing court must not apply an adjustment for
abuse of trust pursuant to § 3B1.3 when imposing a sentence
through the cross reference in § 2C1.1(c)(1). Id. Rather it
states, in full, “Inapplicability of §3B1.3.—Do not apply §
3B1.3 (Abuse of Position of Trust or Use of Special Skill).”
Id. § 2C1.1, cmt. n.6. Although this language plainly bars
application of § 3B1.3 when the sentence is calculated
pursuant to § 2C1.1, it is silent as to whether the ban on an
abuse-of-trust adjustment applies when a cross reference is
used. As such, it does not “expressly provide[]” that Chapter
Three adjustments are not to be determined in respect to the
referenced offense guideline. Id. § 1B1.5(c); see Elliott v.
Archdiocese of N.Y., 682 F.3d 213, 225–26 (3d Cir. 2012)
(defining “express” as “directly and distinctly stated or
expressed rather than implied or left to reference” (quoting
Webster’s Third New International Dictionary 803
(Merriam–Webster 1986)).
When compared to other Guidelines, it becomes even
more evident that § 2C1.1 does not expressly limit sentencing
courts from applying an abuse-of-trust adjustment when the
cross reference applies. Section 2K1.4(c), to take one
example, directs courts sentencing a defendant who is
determined to be a career offender on certain firearms charges
to determine the guideline sentence by reference to § 4B1.1.
In addition, § 2K2.4(c) expressly provides that, with certain
exceptions, “Chapters Three and Four shall not apply to that
count of conviction.” U.S.S.G. § 2K1.4(c). Unlike §
2K1.4(c), neither § 2C1.1(c) nor its application notes contain
such express language precluding application of an abuse-of-
trust adjustment when a cross reference is applied.
2
Simple logic also compels this result. Section 2C1.1 is
unusual in that it directs the sentencing court to consider both
the Chapter Two offense level and any applicable
adjustments from Chapter Three when calculating the
“greater offense level” for purposes of determining whether
to apply a cross reference. See id. § 1B1.5(d). If the
limitations on Chapter Three adjustments applied equally to
sentences calculated under § 2C1.1 directly and those under
the cross reference, there would be no reason to consider
Chapter Three adjustments at this stage. The Chapter Three
adjustments would always be the same for both calculations
and consideration of those adjustments would not add
anything to the base offense level as determined by Chapter
Two.
The fact that the relevant application note previously
expressly indicated that an abuse-of-trust adjustment might
apply when a sentence is calculated by cross reference should
not change this result. As an initial matter, we should not
consider the application note’s history because the plain
meaning of the relevant Guidelines is conclusive. See In re
Armstrong World Indus., Inc., 432 F.3d 507, 512 (3d Cir.
2005) (“If the meaning is plain, we will make no further
inquiry unless the literal application of the statute will end in
a result that conflicts with Congress’s intentions.”).
Even considering the fact that the Guideline was
amended, however, Amendment 666 does not support
Solomon’s argument. The “Reason for Amendment”
indicates that it was adopted to “increase[] punishment for
bribery, gratuity, and ‘honest services’ cases while providing
additional enhancements to address previously unrecognized
aggravating factors inherent in some of these offenses.”
3
U.S.S.G. app. C amend. 666 (Supp. 2004). To accomplish
this end, the Sentencing Commission streamlined several
previously dispersed Guidelines and provided higher
alternative base offenses levels for public officials who abuse
positions of public trust. Id. It would be odd in the extreme
for the Sentencing Commission to have sought to increase the
sentences of corrupt public officers by eliminating the use of
a sentencing increase for abuse of trust when a cross
reference applies. The cross-referenced Guideline would not
account for the defendant’s status as a public official, and the
offense level would be the same as if a member of the general
public had committed this cross-referenced crime.2 A
sentencing court’s failure to apply § 3B1.3 would essentially
ignore the defendant’s abuse of a position of trust despite the
Sentencing Commission’s stated view that “offenders who
abuse their position of public trust are inherently more
culpable than” other offenders. Id. In contrast to this
language, there is no indication in the Sentencing
Commission’s “Reason for Amendment” that supports the
majority’s view. It is far more reasonable to conclude that the
2
The majority asserts that the cross-reference accounts for a
defendant’s public official status because § 2C1.1 now sets
the base offense level two levels higher for public officials as
compared to other defendants. That increase, however, does
not apply to drug crimes sentenced pursuant to § 2D1.1 or
any other offense guideline that would be cross referenced.
Because the original and cross-referenced guidelines are
calculated separately and then compared to determine which
produces the higher resulting offense level, under the
majority’s view the defendant’s public official status would
not be accounted for at any point in calculating the result of
applying a cross reference.
4
Sentencing Commission merely deleted language it thought
was superfluous from the relevant application note.
Because I believe the District Court committed no
error in applying a sentencing adjustment for abuse of a
position of trust pursuant to § 3B1.5, I respectfully dissent.
5