United States v. Cross ( 2004 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.  No. 03-4737
WILLIAM TERRENCE CROSS, a/k/a Red,
Defendant-Appellee.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4752
WILLIAM TERRENCE CROSS, a/k/a Red,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca Beach Smith, District Judge.
(CR-03-10)
Argued: February 25, 2004
Decided: June 8, 2004
Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published opinion.
Judge Traxler wrote the opinion, in which Judge Wilkinson and Judge
Shedd joined.
2 UNITED STATES v. CROSS
COUNSEL
ARGUED: Michael James Elston, Assistant United States Attorney,
Alexandria, Virginia, for the United States. Charles Russell Burke,
Virginia Beach, Virginia, for William Terrence Cross. ON BRIEF:
Paul J. McNulty, United States Attorney, Laura P. Tayman, Assistant
United States Attorney, Alexandria, Virginia, for the United States.
OPINION
TRAXLER, Circuit Judge:
Defendant William Terrence Cross was charged with using physi-
cal force to intimidate a witness in a federal drug conspiracy prosecu-
tion in order to influence her testimony and retaliate against her for
providing to law enforcement officers information about the crimes
being prosecuted. A jury convicted Cross of witness tampering, see
18 U.S.C.A. § 1512(b)(1) (West 2000 & Supp. 2003), and retaliating
against a witness, see 18 U.S.C.A. § 1513(b)(2) (West Supp. 2003).
The district court sentenced Cross under the "Accessory After the
Fact" sentencing guideline, which sets the base offense level at six
levels below that used for "the underlying offense" but imposes a ceil-
ing offense level of 30. United States Sentencing Commission, Guide-
lines Manual ("U.S.S.G.") § 2X3.1 (Nov. 2002). The offense level
assigned for the underlying drug conspiracy offense was 38, reflecting
the large quantity of drugs involved in the conspiracy. Finding insuf-
ficient evidence to show that Cross knew or reasonably should have
known about the large drug quantities involved, the district court
declined to use level 38 for the underlying drug conspiracy offense.
The district court concluded that 26 was a more appropriate offense
level for the underlying offense, and imposed a sentence of 100
months on each count, to be served concurrently. The government
appeals. As discussed below, we vacate Cross’s sentence and remand
for resentencing.1
1
On cross appeal, Cross challenges his convictions based on the suffi-
ciency of the evidence. Having reviewed the briefs and considered oral
argument from counsel on this issue, we conclude that the evidence was
clearly sufficient to sustain the jury’s guilty verdict and we summarily
affirm Cross’s convictions.
UNITED STATES v. CROSS 3
I.
On July 11, 2002, officers employed by the City of Suffolk Police
Department recovered a large quantity of cocaine base from an apart-
ment leased by Antoine Goodman, Cross’s nephew, and Nichelle
Lewis, Goodman’s girlfriend. Goodman was charged with, and even-
tually pled guilty to, conspiracy to distribute and to possess with the
intent to distribute five grams or more of crack cocaine and 500 grams
or more of cocaine powder. See 21 U.S.C.A. §§ 846, 841(a)(1) (West
1999). For sentencing purposes, the district court attributed slightly
over 23 kilograms of crack cocaine to Goodman as a result of his
involvement in the conspiracy, yielding a base offense level of 38.
See U.S.S.G. § 2D1.1(c)(1). Goodman received a thirty-year prison
sentence.
Following the seizure of drugs at his apartment and the issuance of
a warrant for his arrest, Goodman remained at large for nearly four
months. Shortly after the July search of Goodman’s apartment, Cross
began looking for Nichelle. Nichelle had provided incriminating
information about Cross’s nephew Goodman to the police — primar-
ily that Goodman had drugs and guns stashed at the apartment — that
led directly to the issuance of the search warrant for the apartment and
the resulting arrest warrant for Goodman. Immediately after the apart-
ment was searched, officers took Nichelle to police headquarters for
additional questioning. En route, with Nichelle riding in the front pas-
senger seat, the police cruiser happened to drive past Cross such that
"he would have had a clear view of the front of the vehicle." J.A. 91.
Cross stopped suddenly and ducked into a nearby phone booth.
Nichelle and her son were later taken to a protective shelter.
Cross then attempted to learn Nichelle’s whereabouts from Thoma-
sine Lewis, Nichelle’s mother. Cross appeared at Thomasine’s work-
place and residence, and he warned Thomasine that she "better hope
[Cross] find[s] [Nichelle] before somebody else find[s] her." J.A. 144.
Thomasine refused to disclose any information to Cross.
On August 9, 2002, Cross spotted Nichelle, who had been attend-
ing a birthday party. Nichelle recalled at trial that Cross approached
her, punching his open hand with his fist and warning, "I hope you
got your life insurance and your son’s life insurance paid up. You
4 UNITED STATES v. CROSS
going to testify against my nephew [Goodman], I’m going to kill you,
B, I’m going to kill you." J.A. 117. Cross then punched Nichelle in
the face and struck her repeatedly after she fell to the ground. Tiffany
Simms, who was with Nichelle at the time, was at first unable to pull
Cross away from Nichelle. Eventually, Tiffany and Nichelle were
able to leave in a car driven by Nichelle’s aunt. Nichelle was treated
for bruises, cuts and abrasions at a hospital in Suffolk, Virginia, and
released.
In December 2002, law enforcement officers finally located Good-
man and arrested him for conspiracy to distribute crack cocaine.
Cross was later charged with using physical force to influence and
retaliate against a witness providing information to police officers in
connection with a federal criminal prosecution.
In February 2003, Goodman pled guilty to the underlying drug
conspiracy offense. Cross, however, insisted on trial. He testified in
his own defense and presented a very different version of events from
the one offered by Nichelle and Tiffany. According to Cross, Nichelle
was upset that Goodman was being unfaithful to her, and she
approached Cross to vent her feelings about the situation. Cross
claims that Nichelle grabbed his shirt during this confrontation, and
that he accidently hit her in the head with his elbow as he was trying
to get away from her. Cross also presented the testimony of two
acquaintances who supported Cross’s story that Nichelle instigated
the fight. The jury, however, did not believe that Nichelle was the
aggressor and convicted Cross of witness tampering and retaliating
against a witness.
Because the base offense level actually used for Goodman’s sen-
tence was 38, Cross’s Presentence Report concluded that 38 was the
offense level for the underlying offense under section 2X3.1(a). As
level 32 was "6 levels lower than the offense level for the underlying
offense," U.S.S.G. § 2X3.1(a), the PSR recommended that the district
court assign Cross an offense level of 30, the ceiling imposed by the
guideline.
The district court rejected the recommendation of the Presentence
Report, concluding that the offense level for Goodman’s underlying
offense should not include any increase based on drug quantity unless
UNITED STATES v. CROSS 5
Cross "knew or reasonably should have known about the drug quanti-
ties" involved in the underlying offense. J.A. 344. Finding insufficient
evidence to establish Cross’s knowledge of drug quantities, the dis-
trict court used the base offense level "which applies to the crime of
Antoine Goodman as charged, . . . not includ[ing] drug amounts and
a weapon that were . . . credited to [Goodman] for sentencing pur-
poses." J.A. 349. Based solely on the charge, the district court deter-
mined Goodman’s offense level to be 26, the base offense level for
conspiracy to distribute more than 5 but less than 20 grams of crack.
See U.S.S.G. § 2D1.1(c)(7). Applying section 2X3.1, the district court
assigned Cross an offense level of 20, six levels below the offense
level for Goodman’s offense as it was charged.2 The government
appeals that determination and seeks to have Cross resentenced.
II.
The parties agree that the district court properly selected section
2X3.1 as the applicable guideline.3 It provides as follows:
§ 2X3.1. Accessory After the Fact
(a) Base Offense Level: 6 levels lower than the
offense level for the underlying offense, but
in no event less than 4, or more than 30.
However, in a case in which the conduct is
limited to harboring a fugitive, the base
offense level under this subsection shall not
be more than level 20.
2
The probation officer recommended a 2-level obstruction of justice
enhancement for false trial testimony. The district court rejected the
obstruction enhancement, and the government does not challenge that
decision on appeal.
3
Ordinarily, the guideline for obstruction of justice covers offenses
encompassed by 18 U.S.C.A. §§ 1512-1513. See U.S.S.G. § 2J1.2. How-
ever, section 2J1.2 contains a cross reference directing the sentencing
court to apply section 2X3.1 "[i]f the offense involved obstructing the
investigation or prosecution of a criminal offense . . . if the resulting
offense level is greater than that determined [by applying section 2J1.2]."
U.S.S.G. § 2J1.2(c)(1).
6 UNITED STATES v. CROSS
The parties also agree that Goodman’s crack conspiracy conviction is
the underlying offense for purposes of section 2X3.1(a).
The parties diverge, however, in their interpretation of how to
determine the offense level of the underlying offense. The govern-
ment contends that in applying section 2X3.1(a), the district court
should have used the base offense level actually assigned for the
underlying offense. Naturally, Cross urges us to affirm the district
court’s conclusion that under section 2X3.1(a), the "offense level for
the underlying offense" cannot include any increase based on drug
quantities attributed to the underlying drug conspiracy unless the
defendant "knew or reasonably should have known of the drug quan-
tities" involved. J.A. 341.
The question of how to determine "the offense level for the under-
lying offense" within the meaning of section 2X3.1(a) raises a guide-
line interpretation issue that we review de novo. See United States v.
Stokes, 347 F.3d 103, 105 (4th Cir. 2003). Interpreting a guideline is
no different from interpreting a statute; the standard rules of statutory
construction apply. See id. Thus, we must "give the guideline its plain
meaning, as determined by examination of its language, structure, and
purpose." Id. (internal quotation marks omitted). Our examination of
the guideline should include the relevant commentary, which "is
authoritative unless it violates the Constitution or a federal statute, or
is inconsistent with, or a plainly erroneous reading of, that guideline."
Stinson v. United States, 508 U.S. 36, 38 (1993).
The Sentencing Commission has provided guidance on how to
determine the offense level for the underlying offense under section
2X3.1(a). The commentary to section 2X3.1 directs the sentencing
court to "[a]pply the base offense level plus any applicable specific
offense characteristics that were known, or reasonably should have
been known, by the defendant." U.S.S.G. § 2X3.1, cmt. n.1. Accord-
ing to this straightforward language, the "known, or reasonably
should have known" requirement applies only to specific offense
characteristics of the underlying offense, not to the base offense level
or any of the factors used in its determination. See United States v.
Girardi, 62 F.3d 943, 946 (7th Cir. 1995) ("Neither Application Note
1 nor § 2X3.1 require that an accessory ‘know’ or ‘reasonably know’
of the factors used to calculate the base offense level" but "only
UNITED STATES v. CROSS 7
requires ‘specific offense characteristics’ of the underlying offense to
be ‘known’ or ‘reasonably known.’").
Here, in requiring the government to demonstrate that Cross knew
or should have known about the quantity of drugs involved in the
underlying offense, the district court was treating drug quantity as a
specific offense characteristic. We believe the district court was mis-
taken in its approach. Rather than a specific offense characteristic,
drug quantity is merely a factor used to set the base offense level in
a drug trafficking offense; it is the requisite starting point for estab-
lishing the base offense level. See U.S.S.G. § 2D1.1(a)(3); see also
United States v. Lang, No. 02-4075, 2004 WL 848437, at *9 (10th
Cir. Apr. 21, 2004) (noting that "drug quantity is not a specific
offense characteristic" for which reasonable knowledge is necessary
under section 2X3.1); Girardi, 62 F.3d at 946 (same). For drug traf-
ficking offenses covered by section 2D1.1, specific offense character-
istics include, for example, possession of a dangerous weapon, use of
an aircraft, or distribution of narcotics in prison. See U.S.S.G.
§ 2D1.1(b). Such specific offense characteristics ratchet up the base
offense level that was first determined by reference to the quantity of
drugs involved. Thus, the district court erred in applying a reasonable
knowledge requirement to drug quantity, which is not a specific
offense characteristic under section 2D1.1(b).
Our decision in United States v. Godwin, 253 F.3d 784 (4th Cir.
2001), upon which Cross relies, is not to the contrary. In Godwin, the
defendant was sentenced under section 2X3.1 for harboring a fugitive
who was wanted for illegal possession of a weapon as a convicted
felon. For purposes of section 2X3.1, the underlying offense was
unlawful possession of a firearm by a prohibited person, which carries
a base offense level of fourteen under section 2K2.1(a)(6). However,
the guideline lists several factors that increase the base offense level
from fourteen, including the defendant’s criminal history. See
U.S.S.G. § 2K2.1(a)(2) (establishing a base offense level of 24 for a
defendant with "at least two felony convictions of either a crime of
violence or a controlled substance offense"). Because the fugitive had
multiple prior convictions for violent crimes, his base offense level
was increased to level 24. Using level 24 as the underlying offense
level under section 2X3.1, the district court assigned the defendant a
base offense level of eighteen.
8 UNITED STATES v. CROSS
On appeal, this court concluded that the use of an underlying
offense level that had been increased based on the fugitive’s criminal
record was "inconsistent with the plain language of section 2X3.1"
because it was related not to the offense but the offender. Godwin, 253
F.3d at 786. Section 2X3.1 refers only to the offense. We observed
that "[i]n most cases, the offense level for the underlying crime will
be the same as the offense level actually assigned to the fugitive . . .
because the majority of the offense guidelines set a base offense level
that in no way takes into account the defendant’s criminal record." Id.
Thus, the offense level of the underlying offense for purposes of sec-
tion 2X3.1 will generally be established by simply importing the base
offense level actually assigned; Godwin merely carves out an excep-
tion in cases where the underlying base offense level was increased
based upon criminal history or other factors not related to the offense
conduct.
Drug quantity is a factor that obviously bears directly upon the
underlying offense itself. It goes without saying that Congress has
elected to treat the trafficking of greater drug quantities as a more
serious crime than the trafficking of lesser amounts. Thus, the inclu-
sion of drug quantity as a factor in the determination of the underlying
offense level is consistent with the policy behind section 2X3.1 of
"punish[ing] more severely those who act as accessories-after-the-fact
to more serious crimes." Godwin, 253 F.3d at 788 (citing Girardi for
the proposition that drug quantity relates to the underlying offense
and need not be known by the accessory for purposes of section
2X3.1).
In sum, we conclude that under section 2X3.1 of the Sentencing
Guidelines, the base offense level for a drug-related "underlying
offense" should include any increase based on the quantity of drugs
involved, without regard to whether the defendant knew, or reason-
ably should have known, the amount involved.
III.
For the foregoing reasons, we affirm the convictions of Cross
based on the sufficiency of the evidence. We vacate the sentence
UNITED STATES v. CROSS 9
imposed by the district court, however, and remand for resentencing
in light of this opinion.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED