United States v. Seals, William H. ( 1997 )


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  •                         United States Court of Appeals
    
    
                         FOR THE DISTRICT OF COLUMBIA CIRCUIT
    
    
               Argued September 5, 1997      Decided December 5, 1997 
    
    
                                     No. 96-3108
    
    
                              United States of America, 
    
                                       Appellee
    
    
                                          v.
    
    
                           William H. Seals, a/k/a Puddin, 
    
                                a/k/a William Brooks, 
    
                                      Appellant
    
    
                                     No. 96-3109
    
    
                              United States of America, 
    
                                       Appellee
    
    
                                          v.
    
    
                                   Gary W. Sweatt, 
    
                                      Appellant
    
    
    ---------
    
    
    
    
                    Appeals from the United States District Court 
    
                            for the District of Columbia 
    
                               (No. 95cr00284-01 & 03)
    
    
    ---------
    
    
         Daniel H. Bromberg, appointed by the court, argued the 
    cause for appellant William H. Seals.
    
         Lisa K. Coleman argued the cause for appellant Gary W. 
    Sweatt.  John P. Dean, appointed by the court, was on brief.
    
         Mary-Patrice Brown, Assistant United States Attorney, 
    argued the cause for the appellee.  Eric H. Holder, Jr., 
    United States Attorney at the time the brief was filed, and 
    John R. Fisher, Thomas J. Tourish, Jr., and G. Bradley 
    Weinsheimer, Assistant United States Attorneys, were on 
    brief.
    
         Before:  Williams, Ginsburg and Henderson, Circuit 
    Judges.
    
         Opinion for the court filed by Circuit Judge Henderson.
    
         Karen LeCraft Henderson, Circuit Judge:  The appellants, 
    William Seals and Gary Sweatt, appeal their convictions on 
    federal conspiracy, kidnapping and extortion charges.  They 
    contend that the Speedy Trial Act, 18 U.S.C. ss 3161 et seq., 
    and Article III of the United States Constitution require 
    dismissal of the indictment underlying their convictions.  In 
    addition, Sweatt argues that there was insufficient evidence 
    to convict him of kidnapping and that the district court 
    improperly sentenced him as a "career offender" under sec-
    tion 4B1.1 of the United States Sentencing Guidelines (Guide-
    lines).  We affirm the appellants' convictions but vacate 
    Sweatt's sentence and remand to the district court to resen-
    tence him not as a career offender.
    
                                    I.  BACKGROUND
    
    
         On August 2, 1995 Seals and Sweatt were arrested and a 
    criminal complaint was filed against them in D.C. Superior 
    Court, charging them with armed kidnapping in violation of 
    
    
    
    D.C. Code Ann. ss 22-2101, 22-3202 (1981 & Supp. 1995).  
    They were not, however, immediately indicted on these 
    charges.  After their arrest by Federal Bureau of Investiga-
    tion (FBI) agents, the FBI and the D.C. Metropolitan Police 
    Department continued their joint investigation into the kid-
    napping.  The investigation resulted in the arrest of two 
    other suspects and additional evidence which persuaded the 
    United States Attorney to alter his tentative decision to lodge 
    D.C. charges against them and to instead indict them on 
    federal charges.  As a result, on October 31, 1995 a D.C. 
    Superior Court grand jury returned an indictment in the 
    United States District Court for the District of Columbia.
    
         Before trial Seals and Sweatt moved to dismiss the indict-
    ment on Speedy Trial Act and constitutional (Article III) 
    grounds.  The lower court denied the motion, finding that the 
    United States Attorney had not sent "the case back to D.C. 
    Superior Court ... for the purpose of gaining additional time 
    for federal prosecution."  Pre-Trial Mot. Tr. 225.  It further 
    held that the Congress, with plenary authority over the 
    District of Columbia, validly authorized the D.C. Superior 
    Court, an Article I tribunal, to supervise a grand jury that 
    can indict for both D.C. and federal offenses.  Id. at 201.
    
         At the appellants' trial the Government presented evidence 
    showing that Sweatt had assisted in detaining the kidnap 
    victim and in retrieving the ransom money.  There was no 
    evidence, however, from which the jury could infer that 
    Sweatt had either been present at or assisted in the abduction 
    and transport of the victim across state lines.  At the close of 
    the Government's case, Sweatt moved for acquittal on the 
    ground that he could not be found guilty of kidnapping unless 
    he was shown to have participated in the abduction or trans-
    port of the victim across state lines.  His motion was denied.
    
         The district court charged the jury on the kidnapping and 
    extortion counts of the indictment under three theories:  (1) 
    liability as a principal under 18 U.S.C. s 1201(a) (kidnapping) 
    and 18 U.S.C. s 1951 (extortion);  (2) liability as an aider and 
    abettor under 18 U.S.C. s 2;  and (3) liability as a Pinkerton 
    co-conspirator (Pinkerton v. United States, 
    328 U.S. 640
    , 647-
    
    
    
    48 (1946)).  The jury returned a general verdict, finding both 
    Seals and Sweatt guilty of conspiracy, kidnapping and extor-
    tion.  Seals and Sweatt were subsequently sentenced to iden-
    tical, concurrent terms of imprisonment.  They each received 
    60 months for conspiracy, 240 months for extortion and life 
    imprisonment for kidnapping.
    
         At sentencing, Sweatt argued that he should be sentenced 
    under the November 1994 version of Chapter 4, Part B, of the 
    Guidelines and that, according to the 1994 version, as modi-
    fied by United States v. Price, 
    990 F.2d 1367
     (D.C. Cir. 1993), 
    he did not have the requisite number of prior convictions to 
    qualify as a career offender.  The district court disagreed, 
    concluding that the November 1994 and November 1995 
    versions of the Guidelines were substantially identical, the 
    only difference being that the 1995 version of section 4B1.1 
    contained amended Background Commentary.  Thus, the 
    lower court ruled that Sweatt's prior convictions of robbery 
    and attempted distribution of heroin required that he be 
    sentenced as a career offender under both the 1994 and 1995 
    versions of section 4B1.1.1
    
                                   II.  DISCUSSION
    
    
         Despite the parties' contentions to the contrary, all of the 
    appellants' claims involve the trial court's legal conclusions or 
    its application of legal standards to the facts.  Accordingly, 
    we review their claims de novo.  See United States v. Abdul-
    Saboor, 
    85 F.3d 664
    , 667 (D.C. Cir. 1996).
    
                             A. Timeliness of Indictment
    
    
         The Speedy Trial Act (STA) provides that "[a]ny informa-
    tion or indictment charging an individual with the commission 
    of an offense shall be filed within thirty days from the date on 
    which such individual was arrested or served with a summons 
    
    __________
         1 If Sweatt had not been sentenced as a career offender under 
    section 4B1.1, the maximum term of imprisonment he could have 
    received for the kidnapping conviction would have been 235 months, 
    reducing his term of imprisonment from life to 240 months--the 
    longest of the concurrent sentences imposed.
    
    
    
    in connection with such charges."  18 U.S.C. s 3161(b).  The 
    appellants contend that the clock began on the date of their 
    August 1995 arrests and expired thirty days later in Septem-
    ber 1995.  They therefore argue that their October 1995 
    indictment should be dismissed as untimely pursuant to 18 
    U.S.C. s 3162(a)(1).2  We disagree.
    
         In United States v. Mills, 
    964 F.2d 1186
     (D.C. Cir.) (en 
    banc), cert. denied, 
    506 U.S. 977
     (1992), we determined that 
    "[u]nder the most natural reading" of section 3161(b), "an 
    arrest starts the clock only if it is 'in connection with' federal 
    charges" and thus, "[i]f ... the arrest [is] accompanied by a 
    complaint charging violations of the D.C. (not U.S.) Code, it 
    [is] not 'in connection with' federal charges."  964 F.2d at 
    1189 (emphasis original).  Further, we concluded that the 
    remedial provision for an untimely indictment, 18 U.S.C. 
    s 3162(a)(1), "also suggests that the [STA] is triggered only 
    by arrests that are accompanied by the filing of a federal 
    complaint against the defendant."  Id. (emphasis original);  
    see also id. at 1193 (Congress adopted "language in 3161(b) 
    that addresses solely federal complaints and their attendant 
    arrests") (emphasis added).  We therefore held that because 
    the Mills defendants were initially charged with violations of 
    the D.C. Code, the section 3161(b) clock did not start on their 
    arrest dates and thus the federal indictments (returned, in 
    
    __________
         2 This subsection provides:
    
         If, in the case of any individual against whom a complaint is 
         filed charging such individual with an offense, no indictment or 
         information is filed within the time limit required by section 
         3161(b) as extended by section 3161(h) of this chapter, such 
         charge against that individual contained in such complaint shall 
         be dismissed or otherwise dropped.  In determining whether to 
         dismiss the case with or without prejudice, the court shall 
         consider, among others, each of the following factors:  the 
         seriousness of the offense;  the facts and circumstances of the 
         case which led to the dismissal;  and the impact of a reprosecu-
         tion on the administration of this chapter and on the adminis-
         tration of justice.
    
    18 U.S.C. s 3162(a)(1).
    
    
    
    one instance, one year after arrest) were not untimely.  964 
    F.2d at 1188-93.
    
         Our Mills decision disposes of the appellants' STA claims.  
    Their August arrests, accompanied by the filing of D.C. 
    charges only, cannot be deemed arrests "in connection with" 
    federal charges and thus cannot start the STA clock.  None-
    theless, Seals and Sweatt invite us to fashion an exception to 
    Mills for the "unusual" circumstances of this case which (in 
    their view) consist of (1) the FBI's involvement in the arrests 
    and its continuing role in the post-arrest investigation of the 
    kidnapping, (2) the United States Attorney's "contemplation" 
    of federal charges when they were arrested and charged with 
    violations of the D.C. Code, (3) the alleged tentativeness of 
    the U.S. Attorney's initial decision to bring D.C. rather than 
    federal charges and (4) the identity of the prosecuting person-
    nel.  We decline their invitation.
    
         First, the fact that the FBI was actively involved in their 
    August arrests does not make them arrests "in connection 
    with" federal charges.  See United States v. Gerald, 
    5 F.3d 563
    , 566 (D.C. Cir. 1993) (where arrest was followed by 
    indictment for D.C. Code violations, fact that defendant ar-
    rested by federal law enforcement officer held not to trigger 
    STA clock), cert. denied, 
    511 U.S. 1144
     (1994);  cf. Mills, 964 
    F.2d at 1192 (recognizing "the now well-established principle 
    that a state arrest does not start the clock no matter how 
    extensive the federal involvement in the original arrest") 
    (emphasis added).  Nor does the fact that the FBI actively 
    participated in the post-arrest investigation make Seals's and 
    Sweatt's August apprehension an arrest "in connection with" 
    federal charges.  See United States v. Iaquinta, 
    674 F.2d 260
    , 
    262-69 (4th Cir. 1982) (federal investigation undertaken after 
    defendant's arrest and indictment on state charges and lead-
    ing to discovery of additional evidence prompting federal 
    indictment did not mean STA clock began on date of original 
    arrest);  cf. Gerald, 5 F.3d at 565 (STA clock not triggered by 
    original arrest on D.C. charges even though prosecutor subse-
    quently decided to seek federal indictment as result of post-
    arrest review of defendant's criminal record and seriousness 
    of D.C. charges);  United States v. Candelaria, 
    704 F.2d 1129
    , 
    
    
    
    1130 (9th Cir. 1983) (arrest by military police did not trigger 
    STA clock despite subsequent FBI involvement).
    
         Second, whether the prosecutor contemplated the filing of, 
    or only tentatively decided not to bring, federal charges at 
    the time of the appellants' arrests is irrelevant to deciding 
    when the clock starts.  Cf. Iaquinta, 674 F.2d at 269 (sug-
    gesting inappropriateness of probe into federal prosecutor's 
    motives because prosecutor not required to file federal 
    charges as soon as he has enough evidence to prosecute).  At 
    the very least, such an inquiry is proscribed by the long line 
    of cases holding that a federal prosecution based on the same 
    conduct as a failed state prosecution--and which is pursued in 
    order to salvage the prosecution--is not prohibited by the 
    STA because the state arrest does not start the STA clock.  
    See Mills, 964 F.2d at 1189-90 (citing Second, Third, Fourth, 
    Fifth, Seventh, Eighth and Ninth Circuit decisions for "the 
    undisputed rule that a state arrest does not trigger the 
    Speedy Trial Act's clock, even if the arrest is for conduct that 
    is the basis of a subsequent indictment for a federal offense").
    
         Nor do the decisions upon which the appellants purport to 
    rely--e.g., United States v. Benitez, 
    34 F.3d 1489
    , 1494 (9th 
    Cir. 1994), cert. denied, 
    513 U.S. 1197
     (1995);  United States v. 
    Cepeda-Luna, 
    989 F.2d 353
    , 357 (9th Cir. 1993)--require a 
    different result.  The cases do not authorize a wide-ranging 
    judicial inquiry into the prosecutor's motives or the finality of 
    his decisionmaking processes.  Rather, they merely carve out 
    a narrow exception to prevent prosecutorial manipulation of 
    STA deadlines.  The "ruse" exception is inapposite here 
    because the court below expressly found that "there was no 
    effort to manipulate the system to gain more time" (Pre-Trial 
    Mot. Tr. 225) and the appellants do not contest the finding.
    
         Third, as the Government properly notes, the fact that the 
    same personnel were responsible for prosecuting Seals and 
    Sweatt in the D.C. Superior Court and United States District 
    Court does not transform their arrests on D.C. charges into 
    arrests "in connection with" federal charges.  See Mills, 964 
    F.2d at 1192-93 (rejecting claim that identity of non-federal 
    
    
    
    and federal prosecutorial personnel triggers STA clock on 
    date of arrest accompanied by filing of non-federal charges).
    
         Fourth, we reject the appellants' other arguments--name-
    ly, that the STA's language, structure and purpose suggest 
    that an arrest on D.C. charges merely establishes a "pre-
    sumption" that the arrest does not trigger the STA clock and 
    that the "presumption" is rebutted by the unique circum-
    stances of this case.  To the extent that the arguments have 
    any merit, they are plainly foreclosed by Mills.  See 964 F.2d 
    at 1193 (section 3161(b) "addresses solely federal complaints 
    and their attendant arrests") (emphasis added).3
    
                          B. Constitutionality of Indictment
    
    
         D.C. Code Ann. s 11-1916(a) (1981 & Supp. 1995) (section 
    1916(a)) provides that "[a] grand jury serving in the District 
    of Columbia may take cognizance of all matters brought 
    before it regardless of whether the indictment is returnable in 
    the Federal or District of Columbia Courts."  The appellants 
    argue that the provision is unconstitutional because it vests 
    the judicial power of the United States outside Article III and 
    it does so by improperly empowering the executive branch.4
    
    __________
         3 Thus, contrary to the appellants' argument, we decline to read 
    section 3161(b) without reference to section 3162(a)(1) (see supra 
    note 2).  See Mills, 964 F.2d at 1189 ("There appears to be 
    undisputed support among the circuits for this reading of the 
    interplay between ss 3161(b) and 3162(a)(1).").  Similarly, we reject 
    their assertion that the STA clock should be understood to start on 
    the same date the Sixth Amendment clock starts.  See id. at 1193 
    ("[T]he [STA] is not intended to track the Sixth Amendment.  
    Within the set of cases covered, it establishes bright-line rules 
    assuring minimum speed, while at the same time preserving defen-
    dants' Sixth Amendment claims in full.").
    
         4 The appellants also claim that section 1916(a) deprives them of 
    the constitutional safeguards associated with Article III supervision 
    of federally-indicting grand juries.  See Commodity Futures Trad-
    ing Comm'n v. Schor, 
    478 U.S. 833
    , 848 (1986) ("Article III, s 1, 
    serves both to protect the role of the independent judiciary within 
    the constitutional scheme of tripartite government, ... and to 
    safeguard litigants' right to have claims decided before judges who 
    
    
    
    
    
    
    
    
    are free from potential domination by other branches of govern-
    ment....  Although our cases have provided us with little occasion 
    to discuss the nature or significance of the latter safeguard, our 
    prior discussions of Article III, s 1's guarantee of an independent 
    and impartial adjudication by the federal judiciary of matters within 
    the judicial power of the United States intimated that this guaran-
    tee serves to protect primarily personal, rather than structural, 
    interests.") (internal quotation marks and citations omitted);  Peretz 
    v. United States, 
    501 U.S. 923
    , 929 (1991) (noting that Gomez v. 
    United States, 
    490 U.S. 858
    , 864 (1989), had construed statute to 
    avoid "substantial question whether a defendant has a constitutional 
    right to demand that an Article III judge preside at every critical 
    stage of a felony trial");  but cf. Palmore v. United States, 
    411 U.S. 389
    , 400 (1973) (rejecting view "that criminal offenses under the 
    laws passed by Congress may not be prosecuted except in courts 
    established pursuant to Art. III [because] [i]n our view, ... there is 
    no support for this view in either constitutional text or in constitu-
    tional history and practice");  Swain v. Pressley, 
    430 U.S. 372
    , 382 
    (1977) ("[T]he Constitution does not require that all persons 
    charged with federal crimes be tried in Article III courts.").
    
         To the extent this claim is distinguishable from the appellants' 
    other claims, it implicates personal, not structural, constitutional 
    rights--insofar as such rights might exist in the grand jury context 
    (about which we express no opinion here).  Assuming the right 
    exists and assuming it was violated as alleged, the appellants would 
    not be entitled to a dismissal of the indictment unless the violation 
    prejudiced them, which they do not contend and which the trial 
    judge explicitly rejected.  See Bank of Nova Scotia v. United 
    States, 
    487 U.S. 250
    , 254 (1988) ("We hold that as a general matter, 
    a district court may not dismiss an indictment for errors in grand 
    jury proceedings unless such errors prejudiced the defendants.").  
    While Bank of Nova Scotia involved violations of Fed. R. Crim. P. 
    6(d) & (e), the decision plainly suggests that the analysis for 
    constitutional errors is no different from that used to assess other 
    types of errors.  See id. at 256 ("It would be inappropriate to devise 
    a rule permitting federal courts to deal more sternly with nonconsti-
    tutional errors than with constitutional errors.").  Moreover, if the 
    petit jury ultimately returns a guilty verdict, any error committed 
    at the grand jury stage is (with exceptions not applicable here) non-
    prejudicial.  See United States v. Mechanik, 
    475 U.S. 66
    , 70 (1986) 
    ("But the petit jury's subsequent guilty verdict means not only that 
    there was probable cause to believe that the defendants were guilty 
    
    
    
                      (1) Judicial Supervision of Grand Jury as 
    
             "Judicial Power of United States"
    
         The only reference to the grand jury in the Constitution is 
    found in the first clause of the Fifth Amendment.5  The grand 
    jury "has not been textually assigned, therefore, to any of the 
    branches described in the first three Articles."  United States 
    v. Williams, 
    504 U.S. 36
    , 47 (1992).6  Accordingly, it has been 
    described as "an institution separate from the courts, over 
    whose functioning the courts do not preside."  Id.;  see also 
    id. at 48 ("[I]n its day-to-day functioning, the grand jury 
    generally operates without the interference of a presiding 
    judge.");  but cf. Blair v. United States, 
    250 U.S. 273
    , 278 
    (1919) ("At the foundation of our federal government the 
    inquisitorial function of the grand jury and the compulsion of 
    witnesses were recognized as incidents of the judicial power 
    of the United States.");  Levine v. United States, 
    362 U.S. 610
    , 617 (1960) ("The grand jury is an arm of the court and its 
    in camera proceedings constitute a judicial inquiry.") (inter-
    nal quotation omitted).
    
         The independence of the grand jury reflects the protective 
    role it plays in our system of criminal justice:  "Historically, 
    this body has been regarded as the primary security to the 
    innocent against hasty, malicious and oppressive persecution;  
    it serves the invaluable function in our society of standing 
    
    __________
    as charged, but also that they are in fact guilty as charged beyond a 
    reasonable doubt.  Measured by the petit jury's verdict, then, any 
    error in the grand jury proceeding connected with the charging 
    decision was harmless beyond a reasonable doubt.") (note omitted).
    
         5 The Grand Jury Clause of the Fifth Amendment recites:
    
                No person shall be held to answer for a capital, or otherwise 
         infamous crime, unless on a presentment or indictment of a 
         Grand Jury, except in cases arising in the land or naval forces, 
         or in the Militia, when in actual service in time of War or public 
         danger;....
    
    U.S. Const. Am. V, cl. 1.
    
         6 The grand jury's lineage is outlined in Hurtado v. California, 
    
    110 U.S. 516
     (1884), and dates back to at least 1164.  Id. at 529.
    
    
    
    between the accuser and the accused, whether the latter be 
    an individual, minority group, or other, to determine whether 
    a charge is founded upon reason or was dictated by an 
    intimidating power or by malice and personal ill will."  Wood 
    v. Georgia, 
    370 U.S. 375
    , 390 (1962);  accord Williams, 504 
    U.S. at 47.7
    
         The grand jury does depend on the judiciary in its role as 
    an investigative body:  "A grand jury is clothed with great 
    independence in many areas, but it remains an appendage of 
    the court, powerless to perform its investigative function 
    without the court's aid, because powerless itself to compel the 
    testimony of witnesses."  Brown v. United States, 
    359 U.S. 41
    , 49 (1959), overruled on other ground by Harris v. United 
    States, 
    382 U.S. 162
     (1965);  accord United States v. Calan-
    dra, 
    414 U.S. 338
    , 346 n.4 (1974) ("[T]he grand jury must rely 
    on the court to compel production of books, papers, docu-
    ments, and the testimony of witnesses, and the court may 
    quash or modify a subpoena on motion if compliance would be 
    unreasonable or oppressive.") (internal quotation omitted).  
    But even this dependence is limited as the grand jury must 
    "remain 'free to pursue its investigations unhindered by 
    external influence or supervision so long as it does not trench 
    upon the legitimate rights of any witness called before it.' "  
    Williams, 504 U.S. at 48-49 (quoting United States v. Dioni-
    sio, 
    410 U.S. 1
    , 17-18 (1973)) (emphasis added).
    
         Moreover, an Article III judge's role in the grand jury's 
    investigative process is often more attenuated as the respon-
    
    __________
         7 Under the Fifth Amendment, an indictment is not required to 
    initiate prosecution of a state "capital[ ] or otherwise infamous 
    crime."  See Hurtado, 110 U.S. at 538.  Although the District is 
    treated like a state in many respects--see, e.g., Palmore, 411 U.S. 
    at 397 (1973) (in District of Columbia "Congress may also exercise 
    the police and regulatory powers which a state legislature or 
    municipal government would have in legislating for state or local 
    purposes")--the Supreme Court has held that the prosecution of a 
    D.C. Code offense carrying the possibility of "infamous punishment" 
    may not be commenced other than by grand jury indictment or 
    presentment as required by the Fifth Amendment.  See United 
    States v. Moreland, 
    258 U.S. 433
     (1922).
    
    
    
    sibility for issuing subpoenas and for accepting returned 
    indictments is vested in United States magistrate judges who 
    are not Article III judges.  See Fed. R. Crim. P. 17(a) 
    (subpoenas "shall be issued by United States Magistrate 
    Judge[s]");  Fed. R. Crim. P. 6(e)(4) & 6(f) (indictment is to 
    be returned to magistrate judge).  Indeed, the significance 
    attached to Article III supervision of a grand jury is so minor 
    that the Supreme Court has held that the judge's absence 
    from the federal judicial district in which the grand jury is 
    sitting neither implicates constitutional rights of the defen-
    dant nor otherwise constitutes cognizable error.  See Badders 
    v. United States, 
    240 U.S. 391
    , 394 (1916).  Therefore, "[g]iv-
    en the grand jury's operational separateness from its consti-
    tuting court, it should come as no surprise that [the Supreme 
    Court] ha[s] been reluctant to invoke the judicial supervisory 
    power as a basis for prescribing modes of grand jury proce-
    dure."  Williams, 504 U.S. at 49-50.
    
         Accordingly, to the extent that the supervision of a federal-
    ly competent grand jury implicates the Article III "judicial 
    power of the United States," the power is a circumscribed one 
    and is far removed from "the essential attributes of the 
    judicial power" with which Article III is principally con-
    cerned.  Crowell v. Benson, 
    285 U.S. 22
    , 51 (1932).  More-
    over, section 1916(a) is applicable only to the "unique federal 
    enclave," Northern Pipeline Constr. Co. v. Marathon Pipe 
    Line Co., 
    458 U.S. 50
    , 75 (1982) (plurality op.) [hereinafter 
    Northern Pipeline], that is the District of Columbia.
    
                (2) Expanded Executive Branch Involvement with Grand 
    
         Jury as Encroachment on Judicial Branch
    
         Seals and Sweatt contend that section 1916(a), by substitut-
    ing Article I for Article III supervision of a federally-
    competent grand jury, unconstitutionally encroaches on the 
    judicial branch.  Their argument rests on the notion that a 
    D.C. Superior Court judge, lacking life tenure and salary 
    protections, is less able to curb federal prosecutorial abuses 
    than his United States District Court counterpart.  We think 
    this notion is questionable at best.  See Palmore v. United 
    
    
    
    States, 
    411 U.S. 389
    , 402 (1993) ("Nor, more particularly, has 
    the enforcement of federal criminal law been deemed the 
    exclusive province of federal Art. III courts.  Very early in 
    our history, Congress left the enforcement of selected federal 
    criminal laws to state courts and to state court judges who 
    did not enjoy the protections prescribed for federal judges in 
    Art. III.");  cf. Testa v. Katt, 
    330 U.S. 386
     (1947) (Supremacy 
    Clause required Rhode Island trial court to enforce non-penal 
    provisions of federal penal price control statute).  The delega-
    tion of certain Article III powers to United States magistrate 
    judges, who are not Article III judges, has also been upheld.  
    See, e.g., Peretz v. United States, 
    501 U.S. 923
    , 937 (1991) 
    (structural constitutional protection not abrogated by allowing 
    magistrate to conduct voir dire);  United States v. Raddatz, 
    
    447 U.S. 667
    , 683 (1980) (delegation of suppression hearing to 
    magistrate did not violate Article III or Due Process Clause 
    so long as Article III court retained final authority).  More-
    over, the Supreme Court has held that a D.C. Superior Court 
    judge is presumed competent to pass on federal constitutional 
    questions that may arise in the course of a criminal trial.  See 
    Swain v. Pressley, 
    430 U.S. 372
    , 383 (1977) ("[T]he judges of 
    the Superior Court of the District of Columbia must be 
    presumed competent to decide all issues, including constitu-
    tional issues, that routinely arise in the trial of criminal 
    cases.").8
    
    __________
         8 We do not here conclude that there are no constitutional limita-
    tions on the Congress's authority to delegate either grand jury 
    supervisory functions or federal felony trial supervisory powers to 
    state and Article I judges, as controlling precedent suggests that, in 
    at least some instances, a non-consenting defendant may have a 
    personal constitutional claim to adjudication by an Article III 
    judge.  See Gomez v. United States, 
    490 U.S. 858
    , 872 n.25 (1989);  
    Peretz, 501 U.S. at 936 ("[I]t is arguable that a defendant in a 
    criminal trial has the right to demand the presence of an Article III 
    judge at voir dire.").  Even if a defendant has such a constitutional 
    right to Article III adjudication, it is far from clear that he has a 
    corresponding right to indictment under Article III supervision.  
    Further, because the grand jury conducts its proceedings ex parte, 
    it would be difficult (if not impossible) to obtain the accused's 
    consent to non-Article III supervision without altering the funda-
    
    
    
         The appellants' challenge requires us to assess the "prac-
    tical effect" of the alleged infringement of Article III power:
    
         [I]n reviewing Article III challenges, we have weighed a 
         number of factors, none of which has been deemed 
         determinative, with an eye to the practical effect that the 
         congressional action will have on the constitutionally 
         assigned role of the federal judiciary.  ... Among the 
         factors upon which we have focused are [1] the extent to 
         which the 'essential attributes of judicial power' are 
         reserved to Article III courts, and, conversely, [2] the 
         extent to which the non-Article III forum exercises the 
         range of jurisdiction and powers normally vested only in 
         Article III courts, [3] the origins and importance of the 
         right to be adjudicated, and [4] the concerns that drove 
         Congress to depart from the requirements of Article III.
    
    Commodity Futures Trading Comm'n v. Schor, 
    478 U.S. 833
    , 
    851 (1986) (emphasis added).  Applying the Schor test here, 
    we conclude that section 1916(a) does not abrogate Article III 
    structural protections.9
    
         First, as discussed earlier, the power to supervise a federal-
    ly-competent grand jury cannot fairly be described as an 
    "essential attribute" of the "judicial power of the United 
    States."  The limited authority a supervising judge wields, 
    the independence of the grand jury from both the judicial and 
    
    __________
    mental and independent role of the grand jury in the investigative 
    and indictment process--something Williams plainly proscribes.  
    See Williams, 504 U.S. at 52-55 (rejecting judicial rule requiring 
    presentation of exculpatory evidence to grand jury because it would 
    "alter the grand jury's historical role").
    
         9 While Schor addressed the constitutionality of the Commodity 
    Futures Trade Commission's power to decide a state-law counter-
    claim in an administrative reparation proceeding, there is no reason 
    that the structural constitutional analysis should be any different in 
    the criminal context.  See, e.g., Mistretta v. United States, 
    488 U.S. 361
    , 382-83 (1989) (citing Schor in describing separation of powers 
    analysis to be applied in determining constitutionality of grant of 
    authority to Sentencing Commission to set mandatory minimum 
    punishments for criminal violations of U.S. Code).
    
    
    
    executive branches, as well as the fact that such supervisory 
    responsibilities are often discharged by a magistrate judge 
    (without requiring the accused's consent)--all manifest that 
    the supervisory power at issue is not an "essential attribute" 
    of the "judicial power of the United States."  See generally 
    Williams, 504 U.S. at 47-55.
    
         Second, even if supervision of a federally-competent grand 
    jury qualified as an "essential attribute," section 1916(a) 
    authorizes only a limited sharing of the supervisory power 
    with an Article I court.  An Article III judge continues to 
    preside at the defendant's trial and retains his authority to 
    dismiss an indictment.  Cf. Bank of Nova Scotia v. United 
    States, 
    487 U.S. 250
    , 254 (1988) ("We hold that, as a general 
    matter, a district court may not dismiss an indictment for 
    errors in grand jury proceedings unless such errors preju-
    diced the defendants.");  United States v. Raddatz, 
    447 U.S. 667
    , 683 (1980) (delegation of authority to conduct suppres-
    sion hearing to magistrate judge "does not violate Article III 
    so long as the ultimate [suppression] decision is made by the 
    district court").
    
         Third, while indictment or presentment by a grand jury is a 
    right secured to felony defendants by the Fifth Amendment, 
    the history and origins of the grand jury suggest that any 
    constitutional right to have it supervised by an Article III 
    judge is of much more recent vintage:
    
         The grand jury is an English institution, brought to this 
         country by the early colonists and incorporated into the 
         Constitution by the Founders.  There is every reason to 
         believe that our constitutional grand jury was intended to 
         operate substantially like its English progenitor.  The 
         basic purpose of the English grand jury was to provide a 
         fair method for instituting criminal proceedings against 
         persons believed to have committed crimes.  Grand ju-
         rors were selected from the body of the people and their 
         work was not hampered by rigid procedural or evidential 
         rules.  In fact, grand jurors could act on their own 
         knowledge and were free to make their presentments or 
         indictments on such information as they deemed satisfac-
    
    
    
         tory.  Despite its broad power to institute criminal pro-
         ceedings the grand jury grew in popular favor with the 
         years.  It acquired an independence in England free 
         from control by the Crown or judges.
    
    Costello v. United States, 
    350 U.S. 359
    , 362 (1956) (emphasis 
    added);  accord Hurtado v. California, 
    110 U.S. 516
    , 530 
    (1884) ("When we add to this that the primitive grand jury 
    heard no witnesses in support of the truth of the charges to 
    be preferred, but presented upon common fame and general 
    suspicion, we shall be ready to acknowledge that it is better 
    not to go too far back into antiquity for the best securities for 
    our 'ancient liberties.' ").  Thus, the grand jury's reliance on a 
    judge for subpoenas, immunity orders and the like is a 
    relatively recent development in the history of the institution, 
    resulting, no doubt, from proscribing the jurors' reliance on 
    personal knowledge of events in the vicinage to form their 
    opinions.  Cf. Edward J. Finley II, Note, Ignorance as Bliss?  
    The Historical Development of an American Rule on Juror 
    Knowledge, 1990 U. Chi. Legal F. 457, 468 (jurors' use of 
    personal knowledge not prohibited by many states until end 
    of nineteenth century);  see also Badders, 240 U.S. at 394-95 
    (1916) (finding no error, constitutional or otherwise, in district 
    judge's absence from District during grand jury deliberation).
    
         Fourth, section 1916(a) promotes efficiency resulting from 
    the identity (both in composition and function) of the D.C. 
    Superior Court grand jury and the federal grand jury:
    
         [G]rand jurors for both the District Court and the Supe-
         rior Court are selected from the same pool of names, by 
         the same jury commissioners, by use of the Superior 
         Court computer, and pursuant to an identical method.  
         Moreover the grand jurors in the two courts have identi-
         cal qualifications and it is only by chance that a person 
         may be selected to serve on one grand jury rather than 
         the other.  The grand jury procedure is virtually identi-
         cal in both.
    
    United States v. Hackney, 
    389 A.2d 1336
    , 1340 (D.C. 1978), 
    cert. denied, 
    439 U.S. 1132
     (1979).  In addition, the provision 
    immediately following section 1916 directs:
    
    
    
         To the extent feasible, the Superior Court and the Unit-
         ed States District Court shall consider the respective 
         needs of each court in the qualification, selection, and 
         service of jurors.  Nothing in this chapter shall be con-
         strued to prevent such courts from entering into any 
         agreement for sharing of resources and facilities (includ-
         ing automated data processing and hardware and soft-
         ware, forms, postage, and other resources).
    
    D.C. Code Ann. s 11-1917 (1981 & Supp. 1995).  Given the 
    limited pool of potential jurors available to serve both the 
    D.C. Superior Court and the United States District Court, it 
    is hardly surprising that the Congress should vest a grand 
    jury empaneled by either court with authority to return an 
    indictment in the other or that judicial supervisory authority 
    should be shared by the courts.  See Atkinson v. United 
    States, 
    295 A.2d 899
    , 901-02 (D.C. 1972) (observing that as of 
    February 1971, grand jury sitting in one court could return 
    indictment to other court).  While the grand jury arrange-
    ment in the District of Columbia may be unique, "[o]ur 
    constitutional principles of separated powers are not violated 
    ... by mere anomaly or innovation."  Mistretta v. United 
    States, 
    488 U.S. 361
    , 385 (1988).
    
         The two cases Seals and Sweatt rely on do not suggest a 
    different conclusion.  They first cite O'Donoghue v. United 
    States, 
    289 U.S. 516
     (1932), in which the Supreme Court 
    upheld the classification of District of Columbia courts as 
    Article III courts because (1) the Congress did not expressly 
    denominate them Article I tribunals, (2) the Congress consis-
    tently treated them like other Article III courts, (3) it vested 
    them with broad powers to determine matters under national 
    laws and (4) they were the only courts to which District of 
    Columbia residents could turn to protect their federal statuto-
    ry rights.  See 289 U.S. at 534-35, 544-49;  cf. Palmore, 411 
    U.S. at 405-07 (O'Donoghue "[r]el[ied] heavily on congres-
    sional intent" to uphold D.C. courts as Article III courts).  
    Some forty-one years later, after the Congress established 
    separate Article I and Article III courts in the District of 
    Columbia, the Supreme Court held that Article III did not 
    prohibit the Congress from authorizing D.C. Superior Court 
    
    
    
    judges to hear federal criminal cases brought under corre-
    sponding provisions of the D.C. Code.  Palmore, 411 U.S. at 
    389.  Accordingly, O'Donoghue offers the appellants no sup-
    port for their challenge.
    
         Second, the plurality opinion in Northern Pipeline does not 
    support the appellants.10  In that opinion, Justice Brennan 
    likened the Congress's plenary Article I authority over the 
    District of Columbia to its authority over territorial matters 
    pursuant to Article IV and, with three other justices, held 
    that, with respect to such enclaves, "the general principle of 
    independent adjudication commanded by Art. III does not 
    apply."  458 U.S. at 76 (emphasis added).
    
                               (3) Other Considerations
    
    
         The line of cases confirming the Congress's plenary author-
    ity over the District of Columbia pursuant to Article I, s 8, cl. 
    17, further fortifies our holding today.11  In particular, Pal-
    more recognizes that "[i]t is apparent that the power of 
    Congress under Clause 17 permits it to legislate for the 
    District in a manner with respect to subjects that would 
    exceed its powers, or at least would be very unusual, in the 
    context of national legislation enacted under other powers 
    
    __________
         10 The precedential value of Northern Pipeline, which did not 
    produce a majority opinion, has been subsequently weakened.  See 
    Thomas v. Union Carbide Agric.  Prods.  Co., 
    473 U.S. 568
    , 584 
    (1985) ("The Court's holding in [Northern Pipeline] establishes only 
    that Congress may not vest in a non-Article III court the power to 
    adjudicate, render final judgment, and issue binding orders in a 
    traditional contract action arising under state law, without the 
    consent of the litigants, and subject only to ordinary appellate 
    review.") (emphasis added);  cf. Fields v. Washington Metro. Area 
    Transit Auth., 
    743 F.2d 890
    , 894 n.10 (D.C. Cir. 1984).
    
         11 Article I, s 8, cl. 17, in relevant part provides:
    
              [The Congress shall have Power] To exercise exclusive Leg-
         islation in all Cases whatsoever, over such District (not exceed-
         ing ten Miles square) as may, by Cession of particular States, 
         and the Acceptance of the Congress, become the Seat of the 
         Government of the United States....
    
    
    
    delegated to it under Art I...."  411 U.S. at 397-98.  Subse-
    quently, the plurality opinion in Northern Pipeline went even 
    further in describing the extent of the Congress's plenary 
    authority under Article I, s 8, cl. 17:  "Congress' power over 
    the District of Columbia encompasses the full authority of the 
    government, and thus, necessarily, the Executive and Judi-
    cial powers as well as the Legislative."  458 U.S. at 76.
    
         Moreover, we cannot find in the Fifth Amendment any 
    basis for concern regarding the assignment of the grand jury 
    supervisory function to a non-Article III judge.  Instead, we 
    conclude that if a D.C. Superior Court judge is competent, 
    despite lacking life tenure and salary protections, to adjudi-
    cate a constitutional right as fundamental as that guaranteed 
    by the writ of habeas corpus--see Swain, 430 U.S. at 383--we 
    see no reason that the same judge cannot likewise protect 
    whatever Fifth Amendment right the appellants might have 
    to indictment by a federally-competent grand jury supervised 
    by an impartial and independent judge.
    
                          C. Sweatt's Kidnapping Conviction
    
    
         The federal kidnapping statute, in relevant part, provides:
    
         Whoever unlawfully seizes, confines, inveigles, decoys, 
         kidnaps, abducts, or carries away and holds for ransom 
         or reward or otherwise any person, except in the case of 
         a minor by the parent thereof, when--
    
              (1) the person is willfully transported in interstate or 
              foreign commerce;
    
              (2) any such act against the person is done within the 
              special maritime and territorial jurisdiction of the 
              United States;
    
              (3) any such act against the person is done within the 
              special aircraft jurisdiction of the United States as 
              defined in section 46501 of title 49;
    
              (4) the person is a foreign official, an internationally 
              protected person, or an official guest as those terms 
              are defined in section 1116(b) of this title;  or
    
    
    
              (5) the person is among those officers and employees 
              designated in section 1114 of this title and any such act 
              against the person is done while the person is engaged 
              in, or on account of, the performance of official duties;
    
         shall be punished by imprisonment for any term of years 
         or for life and, if the death of any person results, shall be 
         punished by death or life imprisonment.
    
    18 U.S.C. s 1201(a) (emphasis added).  Sweatt contends that 
    the word "when" as used in section 1201(a) means that the 
    kidnapping ended after the victim was transported across 
    state lines and before he became involved in holding the 
    victim and retrieving the ransom.12  He therefore reasons 
    that he cannot be held criminally liable as a principal, aider 
    and abettor or Pinkerton co-conspirator under 18 U.S.C. 
    s 1201(a).  He is mistaken.
    
         Sweatt's crabbed reading of section 1201(a) is contrary to 
    the "natural meaning" of the term "when."  See United 
    States v. Wells, 
    117 S. Ct. 921
    , 927 (1997) ("the first criterion 
    in the interpretive hierarchy, a natural reading of the full 
    text") (citing United States v. American Trucking Ass'n, Inc., 
    
    310 U.S. 534
    , 542-43 (1940)).  The term "when" is used in 
    section 1201(a) not in its temporal sense--i.e., "at the time 
    that"--but rather in its categorical sense--i.e., "in cases 
    where."  This is evident from the syntax and structure of the 
    provision:  the list of factors immediately following "when" 
    describes activities the provision intends to forbid, not their 
    chronology.  Moreover, if "when" had the meaning Sweatt 
    ascribes to it, the word "while" in subsection (5) of section 
    1201(a) would be superfluous--again, a disfavored construc-
    tion.  See Montclair v. Ramsdell, 
    107 U.S. 147
    , 152 (1883) 
    (courts should "give effect, if possible, to every clause and 
    word of a statute");  cf. Moskal v. United States, 
    498 U.S. 103
    , 
    
    __________
         12 According to the Government's evidence, Sweatt assisted in 
    holding the victim in Maryland while the ransom demand was made 
    and he and Seals traveled to the District of Columbia to pick up the 
    ransom.  See Trial Tr. 612-14, 619-20, 709-10, 1156, 1171.  There 
    was also evidence that a telephone call was placed to Sweatt shortly 
    after the victim was abducted.  Id. at 713-16.
    
    
    
    111 (1990) (declining to read provision narrowly so as to "limit 
    it to instances of fraud rather than the class of fraud 
    encompassed by its language") (emphasis added);  Bell v. 
    United States, 
    462 U.S. 356
    , 362 (1983) ("[F]ederal criminal 
    statutes that are intended to fill a void in local law enforce-
    ment should be construed broadly.").
    
         Other courts have held that, even though a violation of 18 
    U.S.C. s 1201(a) occurs when all of the essential elements of 
    the offense have been satisfied, the crime of kidnapping 
    continues while the victim remains held and a ransom sought.  
    See United States v. Denny-Shaffer, 
    2 F.3d 999
    , 1018 (10th 
    Cir. 1993) ("The broad language of s 1201(a) defines a con-
    tinuing offense.");  cf. United States v. Garcia, 
    854 F.2d 340
    , 
    344 (9th Cir. 1988) (federal kidnapping is continuing offense 
    and therefore statute of limitations does not begin with 
    transport of victim across state lines), cert. denied, 
    490 U.S. 1094
     (1989);  cf. also Grunewald v. United States, 
    353 U.S. 391
    , 403 (1957) ("Kidnapers in hiding, waiting for ransom, 
    commit acts of concealment in furtherance of the objectives of 
    the conspiracy itself, just as repainting a stolen car would be 
    in furtherance of a conspiracy to steal;  in both cases the 
    successful accomplishment of the crime necessitates conceal-
    ment.") (note omitted);  see also McElroy v. United States, 
    
    455 U.S. 642
    , 654-56 (1982) (rejecting, as contrary to statute's 
    purpose of aiding in apprehension of criminals who misuse 
    channels of interstate commerce, argument that federal for-
    gery conviction must be overturned because prosecutor had 
    failed to establish instrument was forged before transport 
    across state lines);  United States v. Toledo, 
    985 F.2d 1462
    , 
    1467 (10th Cir.) (in enacting section 1201(a) "Congress was 
    attempting to address the misuse of interstate commerce by 
    kidnappers to frustrate the efforts of state police"), cert. 
    denied, 
    510 U.S. 878
     (1993).  Accordingly, there was sufficient 
    evidence to convict Sweatt as at least an aider and abettor--
    which is all that is required to sustain his conviction.  See 
    Griffin v. United States, 
    502 U.S. 46
    , 49 (1991) ("[A] general 
    jury verdict [is] valid so long as it [is] legally supportable on 
    one of the submitted grounds....").
    
    
    
         Nor do the cases Sweatt cites compel a different conclusion.  
    The cases hold only that unlawful abduction and transport 
    across state lines is sufficient to violate section 1201(a);  they 
    do not hold, nor does it follow from their holdings, that the 
    kidnapping concludes once the abduction and transport occur.  
    See, e.g., United States v. Broadwell, 
    870 F.2d 594
    , 601 & n.16 
    (11th Cir.) (holding that unlawful restraint began when victim 
    was abducted and "continued" after he was transported 
    across state lines even though crime "complete" upon trans-
    port), cert. denied, 
    493 U.S. 840
     (1989).  Accordingly, we 
    uphold Sweatt's conviction on the kidnapping charge.13
    
                  D. Sweatt as "Career Offender" Under Section 4B1.1
    
    
         We held in United States v. Price, 
    990 F.2d 1367
     (D.C. Cir. 
    1993), that "the Sentencing Commission adopted ss 4B1.1 & 
    4B1.2 solely in an effort to fulfill the mandate of 28 U.S.C. 
    s 994(h)" and therefore only those offenses specified in sec-
    tion 994(h) can render the defendant a "career offender."  990 
    F.2d at 1368.  Because aiding and abetting, conspiring and 
    attempting to commit certain narcotics offenses are not 
    among those offenses listed in section 994(h), we held that the 
    defendant could not be sentenced as a career offender on the 
    basis of prior convictions of those offenses.  Id.  Price con-
    cluded that Application Note 1 to section 4B1.2 of the Guide-
    
    __________
         13 We express no opinion regarding the Government's and 
    Sweatt's opposing arguments as to his culpability on a Pinkerton 
    theory.  We also note that although the trial court's charge, in 
    describing the elements of kidnapping required to convict Seals and 
    Sweatt as principals, declared that Sweatt could not be convicted 
    unless he was shown to have participated in the abduction or 
    transport of the victim across state lines (Trial Tr. 1926), the aiding 
    and abetting charge (id. at 1917-19) contained no such limitation 
    and could have been used by a reasonable jury to convict Sweatt of 
    kidnapping.  See Griffin, 502 U.S. at 49.  In any event, although we 
    need not reach the issue today, we doubt that a criminal defendant 
    can obtain reversal of his conviction solely on the basis of instruc-
    tions that create erroneous and unnecessary impediments to convic-
    tion.  See United States v. Bomski, 
    125 F.3d 1115
    , 1116 (7th Cir. 
    1997).
    
    
    
    lines was invalid to the extent it suggested that convictions of 
    certain inchoate offenses counted in treating the defendant as 
    a career offender.  Id.  We held open the question, however, 
    whether the Sentencing Commission could repromulgate Ap-
    plication Note 1 pursuant to statutory authority other than 
    section 994(h), including its discretionary authority under 
    section 994(a).  See id. at 1370 ("Thus, without passing on the 
    Commission's authority to re-adopt Application Note 1 to 
    s 4B1.2 (or some variation of Note 1) on alternative grounds, 
    we vacate the sentence and remand the case to the district 
    court for resentencing.").
    
         The Commission responded by amending and repromulgat-
    ing the Background Commentary to section 4B1.1 of the 
    Guidelines.  The repromulgated version clarified that, pursu-
    ant to the Commission's general statutory authority, 28 
    U.S.C. s 994(a)-(f), and its amendment authority, 28 U.S.C. 
    s 994(o)-(p), prior convictions that can count toward career 
    offender status include convictions of attempts, aiding and 
    abetting and other inchoate offenses.  See 1995 Guidelines 
    Manual, App. C, Am. 528 at 434-35.  The repromulgated 
    Background Commentary to section 4B1.1 became effective 
    on November 1, 1995.
    
         Sweatt argues that in light of Price, the district court 
    improperly sentenced him as a career offender under the 
    repromulgated version of section 4B1.1 because his 1987 
    conviction of attempted distribution of heroin could not be 
    used under the November 1994 version of section 4B1.1--the 
    version in effect when he committed the crimes.14  By retro-
    actively applying the November 1995 version of section 4B1.1, 
    he reasons, the trial court imposed a greater punishment than 
    it could have imposed under the law as it existed when the 
    crimes were committed, violating the Ex Post Facto Clause.  
    See, e.g., United States v. Stover, 
    93 F.3d 1379
    , 1386 (8th Cir. 
    1996);  United States v. Smallwood, 
    35 F.3d 414
    , 417-18 n.18 
    (9th Cir. 1994);  United States v. Saucedo, 
    950 F.2d 1508
    , 1515 
    (10th Cir. 1991).
    
    __________
         14 Sweatt does not dispute that his 1987 robbery conviction was 
    properly counted as a prior conviction under section 4B1.1.
    
    
    
         The Government essentially concedes that Sweatt's reading 
    of Price is correct but it contends that we should overrule 
    Price.  See Appellee Br. at 43.  Nevertheless, the law is well 
    settled that one panel may not "overrule the decision of 
    another panel of this court."  United States v. Doe, 
    730 F.2d 1529
    , 1531 n.2 (D.C. Cir. 1984).  Accordingly, we vacate 
    Sweatt's sentence as a career offender pursuant to section 
    4B1.1 of the Guidelines and remand to the district court for 
    resentencing.  See supra note 1.
    
                                   III. CONCLUSION
    
    
         For the foregoing reasons, we affirm the appellants' convic-
    tions.  We vacate appellant Sweatt's sentence as a career 
    offender and remand for resentencing in accordance with the 
    terms of this opinion.
    
    So ordered.