United States v. William Boney , 769 F.3d 153 ( 2014 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 13-3087 & 13-3199
_____________
UNITED STATES OF AMERICA,
Appellee/Cross-Appellant
v.
WILLIAM BONEY,
Appellant/Cross-Appellee
_______________________
On Appeal from the United States District Court
for the District of Delaware
District Court No. 1-11-cr-00055-001
District Judge: The Honorable Sue L. Robinson
Appeal No. 13-3087 Submitted under Third Circuit LAR
34.1 (a) on July 10, 2014
Appeal No. 13-3199 Argued on July 09, 2014
Before: SMITH, VANASKIE, and SLOVITER,
Circuit Judges
(Filed: September 15, 2014)
Jamie M. McCall, Esq.
Jennifer L. Hall, Esq. [ARGUED]
Office of United States Attorney
1007 North Orange Street, Suite 700
P.O. Box 2046
Wilmington, DE 19899
Counsel for United States of America
Raymond M. Radulski, Esq. [ARGUED]
Suite 700
1225 North King Street
Wilmington, DE 19801
Counsel for William Boney
_____________________
OPINION
_____________________
SMITH, Circuit Judge.
A jury convicted William Ronald Boney
(“Boney”) of conspiracy to possess with intent to
distribute 500 grams or more of cocaine in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(B), & 846; attempting to
retaliate against a witness, victim, or informant in
2
violation of 18 U.S.C. § 1513(a)(1)(B); and solicitation
of a person to retaliate against a witness, victim, or
informant, as prohibited by 18 U.S.C. § 1513(a)(1)(B), in
violation of 18 U.S.C. § 373. The United States District
Court for the District of Delaware sentenced Boney to a
term of imprisonment of 220 months on each of these
counts and ordered the sentences to run concurrently.
Boney appealed, challenging his conviction. The
government cross-appealed, arguing that the District
Court erred in calculating the United States Sentencing
Guidelines (“U.S.S.G.”) range for two counts of Boney’s
conviction.
We will affirm Boney’s conviction, but conclude
that the District Court misapplied the Sentencing
Guidelines when it sentenced Boney. Thus, we will
vacate the judgment of sentence and remand for
resentencing.
I.
A.
In 2010, Boney brokered a multi-kilogram cocaine
transaction. Philip Haines (“Haines”), whom Boney had
known for several years and who had previously sold
Boney drugs, informed Boney that he was looking for a
drug supplier who could sell him large quantities of
cocaine. Boney told Haines that he was familiar with
drug traffickers who sold large amounts of cocaine and
agreed to make an introduction on Haines’s behalf.
3
Haines agreed to pay Boney a fee of $10,000 for each
such transaction that he brokered.
Unbeknownst to Boney, however, Haines was
working as a confidential informant for the Drug
Enforcement Administration (“DEA”) at the time, and
the cocaine deal was a sting operation. In autumn of
2010, Boney informed Haines that he had located a seller
from New Jersey who could supply Haines with five to
ten kilograms of cocaine. Haines provided the DEA with
information about Boney’s efforts to plan the transaction
and tipped off the DEA as to the date the transaction was
to occur.
The deal occurred at Boney’s house in Delaware
on November 7, 2010. With Haines’s cooperation, the
DEA recorded several telephone calls between Boney
and Haines on this day, during which Boney stated that
the sellers were ready to proceed with the transaction.
Boney met Haines at the house and introduced Haines to
the sellers. The DEA surveilled the house during the
transaction. However, when the agents believed they had
been spotted by one of the conspirators, the DEA raided
the house. The DEA arrested Boney, along with four
other individuals, and seized several kilograms of
cocaine.
After his arrest, Boney agreed to cooperate with
law enforcement and was released to assist in the
investigation of other drug traffickers. However, Boney
had a contentious relationship with his DEA handling
4
officer and his cooperation with law enforcement
ultimately turned sour. As a result, by spring 2011, the
government had begun to take steps to prosecute Boney
for his role in the November 2010 cocaine transaction.
In May 2011, the DEA received information from
another informant, Ishmael Garrett (“Garrett”), that
Boney was attempting to recruit a hit man to murder
Haines. Garrett had previously been arrested for drug
violations and was cooperating with the DEA in the hope
that the sentence he would eventually receive would
reflect his cooperation. The DEA developed a plan to
have Garrett pose as a hit man and meet with Boney.
Boney and Garrett met for the first time on May
22, 2011. During their conversation—which the DEA
surreptitiously recorded—Boney indicated that he was
furious that Haines had “set [him] up” in the November
2010 cocaine transaction and solicited Garrett to kill
Haines in exchange for $8,000. See S.A. 21, 24. Boney
further requested that, if it was not possible to kill
Haines, he wanted Garrett to kill Haines’s newborn child.
See S.A. 24 (“[I]f he ain’t, if he ain’t there, I’ll be honest
with you I want his kid dead.”). During this conversation,
Garrett stated that he needed to see a picture of Haines to
commit the murder. Boney showed him a picture of
Haines from Facebook, which revealed Haines’s face as
well as several identifying tattoos. S.A. 23; see also S.A.
491, 496–97. Boney also provided Garrett with
identifying details about Haines, including the fact that
5
he lived in Philadelphia and that he had a warehouse in
Smyrna, Delaware. S.A. 27, 29.
Boney met with Garrett two more times, on June
15 and July 3, 2011. During their meetings, Boney
discussed payment arrangements for the hit on Haines,
including providing detailed information about various
locations in the Delaware area that Garrett could rob to
obtain the money, giving Garrett the names of people
who owed money to Boney so that Garrett could collect
directly from them, and discussing the possibility of
paying Garrett in marijuana.
B.
Boney was arrested on July 19, 2011. On April 12,
2012, a grand jury returned a superseding indictment
charging Boney with: Count I, conspiracy to distribute
500 or more grams of cocaine in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(B), & § 846; Count II, attempting to
kill another person with intent to retaliate against that
person for providing to a law enforcement officer
information relating to the commission or possible
commission of a Federal offense in violation of 18
U.S.C. § 1513(a)(1)(B); Count III, obstruction of justice
by soliciting a person to kill a witness for the United
States in a related pending criminal case in violation of
18 U.S.C. § 1503(a); and Count IV, solicitation of a
person to attempt to kill another with intent to retaliate
for providing information to a law enforcement officer
relating to the commission or possible commission of a
6
Federal offense, as prohibited by 18 U.S.C.
§ 1513(a)(1)(B), in violation of 18 U.S.C. § 373.
A jury convicted Boney on Counts I, II, and IV
and acquitted him on Count III. Because Boney had a
prior felony drug conviction, Count I carried a mandatory
minimum sentence of ten years’ imprisonment and a
maximum sentence of life imprisonment, a fine of
$8,000,000, and a minimum of eight years’ of supervised
release. See 21 U.S.C. § 841(b)(1)(B). Count II carried a
maximum sentence of thirty years’ imprisonment. See 18
U.S.C. § 1513(a)(1)(B). Count IV carried a maximum
sentence of twenty years imprisonment because the crime
that Boney solicited (murder) was punishable by life
imprisonment or death. See 18 U.S.C. § 373(a).
On June 12, 2013, the District Court sentenced
Boney using the 2012 edition of the United States
Sentencing Guidelines Manual.1 Boney was assigned a
criminal history category of III based on his prior felony
drug conviction and other non-drug offenses. See
1
District courts must apply the Sentencing Guidelines
that are “in effect on the date the defendant is sentenced,”
except when such application would violate the ex post facto
clause of the Constitution. 18 U.S.C. § 3553(a)(4)(A)(ii). See
also Peugh v. United States, 133 S. Ct. 2072, 2081 (2013);
U.S. Sentencing Guidelines Manual § 1B1.11 (2012). The
2012 edition was the operative version of the Guidelines
Manual on the date Boney was sentenced. This appeal
involves no ex post facto challenge.
7
Presentence Investigation Report (“PSR”), pp. 16–18.
As to Count I, the District Court calculated
Boney’s offense level consistent with the probation
office’s recommendation in the PSR. Applying offense
guideline § 2D1.1 (Offenses Involving Drugs and Narco-
Terrorism), the District Court determined that Count I
carried a base offense level of 30, which when combined
with a 2-level enhancement for obstruction of justice,
yielded an adjusted offense level of 32. See Joint
Appendix (“J.A.”) II–366.
However, the District Court rejected the PSR’s
recommendation as to Counts II and IV. For Count II, the
PSR recommended that the District Court apply U.S.S.G.
§ 2A2.1(a) (Assault with Intent to Commit Murder;
Attempted Murder), and for Count IV, the PSR
recommended § 2A1.5(a) (Conspiracy or Solicitation to
Commit Murder). The District Court disagreed with the
recommendations on both of these counts, expressing
disapproval that, in its opinion, the probation office had
“pigeonholed” Counts II and IV into guidelines that did
not apply to this case. J.A. II–365. Indicating that it
“certainly [did not] believe that the attempted murder
[guidelines] w[ere] the best fit for the facts as I heard
them,” J.A. II–368, the District Court instead chose to
sentence Boney under § 2J1.2 (Obstruction of Justice) for
both Counts II and IV. J.A. II–366.
Under § 2J1.2, the base offense level was 14. For
both Counts II and IV, the District Court applied an 8-
8
level sentencing enhancement because Boney’s offense
involved “causing or threatening to cause physical injury
to a person,” see U.S. Sentencing Guidelines Manual
§ 2J1.2(b)(1)(B) (2012), and a 2-level enhancement
because Boney had targeted a vulnerable victim, see id.
at § 3A1.1(b)(1).
Grouping together the counts of conviction, the
District Court concluded that the appropriate offense
level for the three counts was 32. Applying that offense
level with Boney’s criminal history category of III in the
sentencing table, the District Court determined that the
advisory sentencing range was 151–188 months.2 The
District Court then varied upward and sentenced Boney
to 220 months.
The Government preserved its objection to the
District Court’s application of the Sentencing Guidelines.
Boney timely appealed his conviction and the
Government cross-appealed.
II.
The District Court had jurisdiction pursuant to 18
U.S.C. § 3231. We have appellate jurisdiction pursuant to
28 U.S.C. § 1291 and 18 U.S.C. § 3742(b).
III.
2
The PSR calculated Boney’s advisory range of
imprisonment to be 360 months to life.
9
We discern no merit in any of Boney’s arguments
challenging his conviction.3 However, the government’s
cross-appeal on sentencing merits deeper discussion.
After a thorough review of the record, we conclude that
3
In his appeal, Boney argues: (1) the evidence adduced
at trial was insufficient to support his conviction and, in so
arguing, he raises an entrapment defense relating to the
cocaine transaction; (2) the District Court should have
granted his motion to suppress evidence relating to cocaine
seized during the DEA’s raid of his house; (3) the District
Court abused its discretion in admitting evidence of a text
message that Boney sent to his attorney shortly after his
initial meeting with Garrett; (4) the District Court abused its
discretion in denying his motion to sever trial on Count I from
trial on the other counts; and (5) the District Court erred in
denying his motion for disclosure of information relating to
an informant that the government had used in its
investigation. We are not persuaded by any of these
arguments. Upon reviewing the record before us, we conclude
that the District Court correctly denied Boney’s motion for
judgment of acquittal. The evidence proffered at trial was
sufficient for a rational juror to have found the elements
supporting his conviction beyond a reasonable doubt, and we
reject Boney’s argument regarding entrapment based on the
significant evidence presented at trial that demonstrated
Boney’s predisposition to take part in the conspiracy to sell
cocaine. Regarding the challenges to the District Court’s
ruling on the evidentiary and procedural motions, after
exhaustive review of the evidence presented at trial, we
conclude, in accordance with and for substantially the same
reasons provided by the District Court, that none of these
challenges have merit. Thus, we will affirm Boney’s
conviction.
10
the District Court incorrectly applied the Sentencing
Guidelines in calculating Boney’s sentence as to Counts
II and IV, thus committing procedural error.
Accordingly, we will vacate the judgment in part and
remand for resentencing.
A.
We review a sentence to ensure that the sentencing
court “committed no significant procedural error, such as
failing to calculate (or improperly calculating) the
Guidelines range[.]” Gall v. United States, 552 U.S. 38,
51 (2007). We apply clear error review to the District
Court’s factual findings relevant to the Guidelines and
exercise plenary review over the District Court’s
interpretation of the Guidelines. United States v. West,
643 F.3d 102, 105 (3d Cir. 2011); United States v.
Aquino, 555 F.3d 124, 127 (3d Cir. 2009); United States
v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en banc).
In this appeal, our review is limited to purely legal
questions regarding the District Court’s interpretation of
the Guidelines. Whether the District Court correctly
calculated the guideline range according to the specific,
mechanical process required by the Guidelines Manual is
a legal issue. Similarly, whether the District Court
selected the most appropriate guideline for the offense of
conviction is a legal issue. See Aquino, 555 F.3d at 127
11
n.5.4 Thus, our review here is plenary.
B.
In United States v. Booker, the Supreme Court held
that the Sentencing Guidelines are merely advisory,
rather than mandatory, in the district court’s
determination of an offender’s sentence. 543 U.S. 220
(2005). Nonetheless, the Supreme Court recently
reaffirmed that the Guidelines constitute “the lodestone
of sentencing.” Peugh v. United States, 133 S. Ct. 2072,
2084 (2013). Accordingly, both Supreme Court
precedent and the decisions of this court have
emphasized that, in sentencing an offender, the district
court must engage in a specific multi-step process. Id. at
2080; see also United States v. Langford, 516 F.3d 205,
211 (3d Cir. 2008). “First, ‘a district court should begin
all sentencing proceedings by correctly calculating the
applicable Guidelines range.’” Peugh, 133 S. Ct. at 2080
(quoting Gall v. United States, 552 U.S. 38, 49 (2007))
(emphasis added). This first step is consistent with the
Supreme Court’s directive that “[a]s a matter of
administration and to secure nationwide consistency, the
4
Several of our sister circuits have also held that the
sentencing court’s determination of the most appropriate
guideline is a legal question subject to de novo review. See,
e.g., United States v. Almeida, 710 F.3d 437, 439 (1st Cir.
2013); United States v. Neilson, 721 F.3d 1185, 1187 (10th
Cir. 2013); United States v. Valladares, 544 F.3d 1257, 1265
(11th Cir. 2008) (per curiam).
12
Guidelines should be the starting point and the initial
benchmark” in determining a sentence. Gall, 552 U.S. at
49. Second, after correctly calculating the applicable
guideline range, “[t]he district court must then consider
the arguments of the parties and the factors set forth in 18
U.S.C. § 3553(a).” Peugh, 133 S. Ct. at 2080 (brackets
omitted).5
“[I]n the ordinary case, the [Sentencing]
Commission’s recommendation of a sentencing range
will ‘reflect a rough approximation of sentences that
might achieve § 3553(a)’s objectives.’” Kimbrough v.
United States, 552 U.S. 85, 109 (2007) (quoting Rita v.
United States, 551 U.S. 338, 350 (2007)). Nonetheless,
“a district court may in appropriate cases impose a non-
5
In decisions prior to Peugh, we characterized this as a
three-step process, in which the sentencing court must: (1)
correctly calculate the applicable guideline range; (2)
formally rule on the parties’ motions and clarify for the
record whether the sentencing court is granting a departure;
and then (3) exercise its discretion by considering all of the
§ 3553(a) factors. See, e.g., United States v. Tomko, 562 F.3d
558 (3d Cir. 2009) (en banc) (citing United States v.
Levinson, 543 F.3d 190, 195 (3d Cir. 2008)); United States v.
Langford, 516 F.3d 205, 211–12 (3d Cir. 2008) (citing United
States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006)); United
States v. Wise, 515 F.3d 207, 216–27 (3d Cir. 2008). We see
no inconsistency between our precedent and the Supreme
Court’s formulation in Peugh, which merely combined into a
single step the district court’s obligation to consider the
arguments of the parties and weigh the § 3553(a) factors.
13
Guidelines sentence based on disagreement with the
[Sentencing] Commission’s views.” Pepper v. United
States, 131 S. Ct. 1229, 1247 (2011) (citing Kimbrough,
552 U.S. at 109) (brackets in original).
However, “[t]hat a district court may ultimately
sentence a given defendant outside the Guidelines range
does not deprive the Guidelines of force as the
framework for sentencing.” Peugh, 133 S. Ct. at 2083.
Indeed, we have emphasized that “[a] correct
[Guidelines] calculation . . . is crucial to the sentencing
process and result,” United States v. Langford, 516 F.3d
205, 212 (3d Cir. 2008), and have admonished that
“because the Guidelines still play an integral role in
criminal sentencing, we require that the entirety of the
Guidelines calculation be done correctly.” United States
v. Jackson, 467 F.3d 834, 838 (3d Cir. 2006) (internal
citations omitted). Furthermore, the Supreme Court has
made clear that a district court commits procedural error
where it fails to calculate the correct guideline range.
Peugh, 133 S. Ct. at 2080 (citing Gall, 552 U.S. at 51).
Our focus here is on the District Court’s obligation
to calculate accurately the applicable guideline range.
The Guidelines Manual lays out a specific, mechanical
process through which the sentencing court must move in
order to arrive at the correct calculation: Section 1B1.1(a)
instructs the sentencing court to “determine the kinds of
sentence and the guideline range as set forth in the
guidelines . . . by applying the provisions of this manual
14
in the following order, except as specifically directed.”
U.S. Sentencing Guidelines Manual § 1B1.1(a) (2012)
(emphasis added). Section 1B1.1 lays out eight
progressive steps that a sentencing court is required to
follow in order to arrive at the correct guideline range. Id.
As the first step, § 1B1.1(a)(1) instructs the
sentencing court to “[d]etermine, pursuant to § 1B1.2
(Applicable Guidelines), the offense guideline section
from Chapter Two (Offense Conduct) applicable to the
offense of conviction.” Id. § 1B1.1(a)(1). Thus, the
sentencing court must consult § 1B1.2, which in turn
specifies that the sentencing court should determine the
offense guideline section in Chapter Two (Offense
Conduct) by “refer[ring] to the Statutory Index
(Appendix A) to determine the Chapter Two offense
guideline, referenced in the Statutory Index for the
offense of conviction.” Id. § 1B1.2(a).6 The Manual
6
Amendment 591 modified the Sentencing Guidelines
to clarify that the sentencing court must use the applicable
guideline provided in the Statutory Index (Appendix A) for
the offense of conviction. See U.S. Sentencing Guidelines
Manual § 1B1.2 Application Note 1 (2012) (“The court is to
use the Chapter Two guideline section referenced in the
Statutory Index (Appendix A) for the offense of conviction.”)
(emphasis added). As we have noted, this language indicates
that “[t]he sentencing court no longer uses the Statutory Index
(Appendix A) as an aid in finding the most applicable
guideline among several possibilities; the Statutory Index
(Appendix A) now conclusively points the court to the one
15
defines “offense of conviction” as “the offense conduct
charged in the count of the indictment or information of
which the defendant was convicted.” Id. Thus, the
sentencing court must examine the indictment or
information to determine the statutory provision
underlying the offense of conviction, and then look up
that statutory provision in the Statutory Index (Appendix
A) of the Manual.7
Appendix A “specifies the offense guideline
section(s) in Chapter Two (Offense Conduct) applicable
to the statute of conviction.” Id. Appendix A – Statutory
Index, Introduction. In the case of some statutes (for
example, where a particular statute proscribes a variety of
conduct), Appendix A references multiple offense
guidelines applicable to the statute. Where there are
multiple offense guidelines referenced in Appendix A for
the statute of conviction, the Manual directs the
sentencing court to “determine which of the referenced
guideline sections is most appropriate for the offense
conduct charged in the count of which the defendant was
guideline applicable in a given case.” United States v. Diaz,
245 F.3d 294, 302 (3d Cir. 2001) (emphasis in original).
7
If the offense involved a conspiracy, attempt, or
solicitation, the sentencing court is also instructed to “refer to
§ 2X1.1 (Attempt, Solicitation, or Conspiracy) as well as the
guideline referenced in the Statutory Index for the substantive
offense.” U.S. Sentencing Guidelines Manual § 1B1.2(a)
(2012).
16
convicted.” Id. § 1B1.2 Application Note 1 (emphasis
added).
C.
With these principles in mind, we conclude that
the District Court erred in applying the steps required by
the Guidelines Manual as to Counts II and IV of Boney’s
conviction.8
1. Count II
First, the District Court incorrectly selected
offense guideline § 2J1.2 (Obstruction of Justice) in
sentencing Boney as to Count II.
We begin our analysis—as we must—by looking
at the conduct charged in Count II of the indictment. See
U.S. Sentencing Guidelines Manual § 1B1.2(a) (2012).
Count II of the First Superseding Indictment charged:
Between on or about May 22, 2011, and
continuing through on or about July 3, 2011,
in the State and District of Delaware,
WILLIAM BONEY, defendant herein, did
attempt to kill another person, to wit
[REDACTED] with intent to retaliate
against [REDACTED] for providing to a
8
The government does not challenge the District
Court’s application of the Sentencing Guidelines as to Count
I.
17
law enforcement officer any information
relating to the commission or possible
commission of a Federal offense, to wit, a
violation of Title 21, United States Code,
Section 846, in violation of Title 18, United
States Code, Section 1513(a)(1)(B).
First Superseding Indictment, J.A. II–17.9
Since Count II charged Boney with a violation of
18 U.S.C. 1513(a)(1)(B),10 the District Court was
required to consult the Statutory Index (Appendix A) to
determine the Chapter Two offense guideline for that
offense of conviction. See U.S.S.G. § 1B1.2(a) &
§ 1B1.2 Application Note 1. The Statutory Index
(Appendix A) lists several offense guidelines potentially
applicable to a conviction under 18 U.S.C. § 1513—
relevant to this appeal, among the available offense
guidelines listed, are § 2A2.1 (Assault with Intent to
Commit Murder; Attempted Murder) and § 2J1.2
9
The version of the First Superseding Indictment
included by the parties in the Joint Appendix includes
redactions of the name of the intended victim (Haines) in
Counts II, III, & IV.
10
18 U.S.C. § 1513(a)(1)(B) provides: “Whoever kills or
attempts to kill another person with intent to retaliate against
any person for . . . providing to a law enforcement officer any
information relating to the commission or possible
commission of a Federal offense . . . shall be punished as
provided in [18 U.S.C. § 1513(a)(2)].”
18
(Obstruction of Justice). Critical to our consideration of
the multiple offense guidelines potentially applicable to
this statute is language in the Guidelines Manual
requiring the District Court to determine which of these
guidelines was the “most appropriate for the offense
conduct charged in [Count II].” U.S.S.G. § 1B1.2
Application Note 1.
The District Court selected § 2J1.2 (Obstruction of
Justice), whereas the PSR recommended § 2A2.1
(Attempted Murder). We conclude that the District
Court’s selection was error.
First, the District Court seemingly rejected
§ 2A2.1 based on the factual information that the parties
had presented at trial. See Transcript of Sentencing
Hearing, J.A. II–368 (“I certainly sat through the case
and I obviously see things differently. . . . I certainly
don’t believe that the attempted murder [guideline] was
the best fit for the facts as I heard them.”). However, the
Guidelines Manual makes clear that the sentencing court
must select the “most appropriate” guideline based on the
offense charged in the indictment, not the court’s
perception of the facts of the case presented at trial. See
U.S.S.G. § 1B1.2(a) (noting that the sentencing court
must determine the offense guideline section applicable
to “the offense conduct charged in the count of the
indictment or information of which the defendant was
convicted”); § 1B1.2(a) Application Note 1 (requiring the
sentencing court to determine the most appropriate
19
guideline section “for the offense conduct charged in the
count of which the defendant was convicted”); see also
United States v. Aquino, 555 F.3d 124, 129 (3d Cir.
2009) (noting that, in assessing which guideline is the
most appropriate, “we may consider only offense of
conviction conduct, not all relevant conduct”) (citing
§ 1B1.2(a)); United States v. Almeida, 710 F.3d 437, 411
(1st Cir. 2013) (“[W]hen selecting the ‘most appropriate’
guideline, the sentencing court should look to the conduct
alleged in the indictment, and not to uncharged conduct
described in trial testimony.”) (citing § 1B1.2(a)
Application Note 1 and the Introduction to Appendix A).
Moreover, we are not persuaded that the District
Court’s selection of § 2J1.2 (Obstruction of Justice) was
the most appropriate guideline. Count II of the indictment
charged Boney with “attempt[ing] to kill another person”
with intent to retaliate against that person for providing
information to law enforcement. See First Superseding
Indictment, J.A. II–17. Conversely, Count II did not
charge Boney with obstruction of justice. See id. Thus,
the plain language of the indictment shows that the
attempted murder guideline, § 2A2.1, was the most
appropriate offense guideline applicable to Count II of
Boney’s conviction. Accordingly, we conclude that the
District Court erred when it selected § 2J1.2 as the most
appropriate guideline for Count II.
2. Count IV
The District Court also erred in applying the
20
Sentencing Guidelines as to Count IV. Count IV charged
Boney with violating 18 U.S.C. § 373:11
Between on or about May 22, 2011, and
continuing through on or about July 3, 2011,
in the State and District of Delaware,
WILLIAM BONEY, defendant herein, with
intent that another person engage in conduct
constituting a felony that has as an element
the use, attempted use, and threatened use of
physical force against the person of another
in violation of the laws of the United States,
11
18 U.S.C. § 373(a) provides:
“Whoever, with intent that another person
engage in conduct constituting a felony that has
as an element the use, attempted use, or
threatened use of physical force against
property or against the person of another in
violation of the laws of the United States, and
under circumstances strongly corroborative of
that intent, solicits, commands, induces, or
otherwise endeavors to persuade such other
person to engage in such conduct, shall be
imprisoned not more than one-half the
maximum term of imprisonment or
(notwithstanding section 3571) fined not more
than one-half of the maximum fine prescribed
for the punishment of the crime solicited, or
both; or if the crime solicited is punishable by
life imprisonment or death, shall be imprisoned
for not more than twenty years.
21
and under circumstances strongly
corroborative of that intent, did solicit,
command, induce and otherwise endeavor to
persuade such other person to engage in
such conduct, to wit, to attempt to kill
[REDACTED] with intent to retaliate
against [REDACTED] for providing to a
law enforcement officer any information
relating to the commission or possible
commission of a Federal offense, in
violation of Title 18, United States Code,
Section 1513(a)(1)(B), all in violation of
Title 18, United States Code, Section 373.
First Superseding Indictment, J.A. II–18.12
Again, pursuant to U.S.S.G. § 1B1.2(a), the
District Court was required to consult the Statutory Index
(Appendix A) to determine the correct offense guideline
applicable to Count IV. Appendix A lists two guidelines
applicable to an offense of conviction under 18 U.S.C.
§ 373: § 2A1.5 (Conspiracy or Solicitation to Commit
Murder) and § 2X1.1 (Attempt, Solicitation, or
Conspiracy (Not Covered by a Specific Offense
12
Although Count IV makes reference to both 18 U.S.C.
§ 373 and 18 U.S.C. § 1513(a)(1)(B), its plain language and
context make clear that the statutory predicate for Count IV is
18 U.S.C. § 373. Indeed, Boney does not argue that Count IV
should be read as charging him under 18 U.S.C.
§ 1513(a)(1)(B) rather than 18 U.S.C. § 373.
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Guideline)). Once again, since multiple options are listed
in Appendix A for this statutory provision, the District
Court was required to select the “most appropriate”
guideline. U.S.S.G. § 1B1.2 Application Note 1.
However, the District Court selected neither
§ 2A1.5 nor § 2X1.1. Instead, the District Court selected
§ 2J1.2 (Obstruction of Justice) as the guideline for
Count IV. See J.A. II–366. This was error because
§ 2J1.2 is not referenced in Appendix A for 18 U.S.C.
§ 373—and thus was not an option for the District Court
to choose in calculating the sentencing guideline range.
By selecting a guideline that was not referenced in
Appendix A for the offense of conviction, the District
Court violated the precise, mechanical process required
by the Guidelines Manual. See § 1B1.2(a) (instructing the
sentencing court to “[r]efer to the Statutory Index
(Appendix A) to determine the Chapter Two offense
guideline”); § 1B1.2 Application Note 1 (“The court is to
use the Chapter Two guideline section referenced in the
Statutory Index (Appendix A) for the offense of
conviction.”) (emphasis added).
Rather than incorrectly sentencing Boney under
§ 2J1.2, the District Court should have selected either
§ 2A1.5 or § 2X1.1. Between these two, we conclude that
§ 2A1.5 was the most appropriate guideline. Section
2A1.5 (Conspiracy or Solicitation to Commit Murder) is
squarely applicable to the offense charged in Count IV of
the indictment, i.e. soliciting Garrett to murder Haines in
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retaliation for Haines providing information to law
enforcement. Additionally, the Guidelines Manual makes
clear that § 2X1.1 applies to an attempt, solicitation, or
conspiracy “not covered by a specific offense guideline.”
§ 2X1.1. Section 2X1.1 further specifies that “[w]hen an
attempt, solicitation, or conspiracy is expressly covered
by another offense guideline section, apply that guideline
section,” and lists § 2A1.5 as an “[o]ffense guideline[]
that expressly cover[s] solicitations.” § 2X1.1(c) &
Application Note 1. Thus, we conclude that the District
Court erred when it sentenced Boney under offense
guideline § 2J1.2 on Count IV. The District Court should
have sentenced Boney under § 2A1.5 on this count.
IV.
Boney’s challenges to his conviction are meritless.
However, we conclude that the District Court committed
procedural error in its application of the Sentencing
Guidelines on Counts II and IV. Thus, we will vacate the
judgment in part and remand for resentencing consistent
with this opinion.
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