IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 21, 2008
No. 07-30452 Charles R. Fulbruge III
c/w No. 07-30453 Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellant-Cross-Appellee
v.
RONALD KIMBROUGH
Defendant - Appellee-Cross-Appellant
----------------------------------------------------------
UNITED STATES OF AMERICA
Plaintiff - Appellant
v.
TERRY CORDIER
Defendant - Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
Before REAVLEY, BENAVIDES, and OWEN, Circuit Judges.
REAVLEY, Circuit Judge:
Ronald Kimbrough and Terry Cordier were indicted for conspiracy to
obstruct justice, obstruction of justice, and accessory after the fact because their
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conduct resulted in members of a cocaine trafficking organization being informed
about an investigation by the Drug Enforcement Administration. Kimbrough
pleaded guilty to the conspiracy charge, while Cordier pleaded guilty to all three
charges. The Government appeals the district court’s calculation of the
defendants’ offense levels under the sentencing guideline for obstruction of
justice rather than for accessory after the fact. We conclude that the district
court’s sentencing determinations were erroneous and remand for resentencing.
I.
In October 2004, the DEA began an investigation of Tyrone Mackey and
cocaine trafficking in New Orleans, Louisiana. One of the Assistant United
States Attorneys working on the case was Kimbrough’s estranged wife. In
January 2005, Kimbrough was at his wife’s home and came across a draft
application for a Title III wiretap that targeted Mackey and members of
Mackey’s organization. The draft affidavit discussed Mackey’s drug trafficking,
and it included information about a specific drug transaction involving 500
grams of crack cocaine. Unbeknownst to his wife, Kimbrough read the
application and recognized the names of several people listed therein, including
Mackey, who he knew to be a drug dealer. Kimbrough then contacted his life-
long friend Cordier, who he also knew was friends with Mackey, and informed
him about the investigation. Kimbrough read the document to Cordier and then
replaced it to conceal from his wife the fact that he had discovered it.
The next day Cordier contacted Mackey and informed him that the
Government was investigating Mackey’s illegal drug activities and was tapping
Mackey’s phone. Mackey stopped using his telephone and instructed other
members of the organization to also discontinue using their telephones. The
disclosure of the investigation and the wiretap application hindered the
investigation and prevented the DEA from discovering Mackey’s drug supplier.
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After being informed about the investigation, Mackey was still able to distribute
a quantity of cocaine in the New Orleans area.
After Kimbrough and Cordier pleaded guilty, their respective presentence
reports (PSRs) calculated both defendants’ base offense levels in a similar
manner. The PSRs began with the obstruction of justice guideline found in
U.S.S.G. § 2J1.2, which yielded a base offense level of 14. The PSRs applied a
three-level enhancement under § 2J1.2(b)(2) because the offense resulted in
substantial interference with the administration of justice. After a two-level
reduction for acceptance of responsibility, both defendants had a total offense
level of 15 and a guideline range of 18 to 24 months.
The Government objected and argued that the offense levels should be
determined based on the guideline for accessary after the fact found in U.S.S.G.
§ 2X3.1. It argued that under that guideline the applicable offense level is based
on the offense level for the underlying offense, which in this case is a drug
conspiracy to distribute between 15 and 50 kilograms of cocaine. The
Government initially argued that Kimbrough’s and Cordier’s offense level should
be determined by the drug quantity that the Mackey organization was able to
distribute after the defendants tipped Mackey about the investigation. It later
argued, however, that the relevant drug quantity was the amount the
organization had distributed up to the time that the defendants informed
Mackey about the investigation and that the defendants need not have known
or foreseen the drug quantity.
The district court denied the Government’s objection to the PSRs. It
concluded that § 2X3.1 was not applicable because, although Kimbrough and
Cordier knew that Mackey was a drug dealer, the defendants lacked sufficient
knowledge of the drug quantities involved. The district court therefore adopted
the PSRs. It sentenced Cordier to 24 months in prison, and it departed upward
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from the guideline range to sentence Kimbrough to 30 months. The Government
appeals from the district court’s guideline calculations. Kimbrough has filed a
cross-appeal challenging the district court’s upward departure.
We hold that the district court erred by requiring the defendants to have
specific knowledge of the drug quantities involved in the underlying offense to
determine their base offense levels under § 2X3.1.1
II.
The crux of this case is whether the defendants’ base offense levels should
have been determined with reference to the guideline for obstruction of justice
under § 2J1.2 or the guideline for accessory after the fact under § 2X3.1. We
review the district court’s interpretation and application of the guidelines de
novo and its findings of fact for clear error. United States v. Griffith.2
For obstruction of justice offenses, the starting point is § 2J1.2, which
assigns a base offense level of 14 and calls for a three-level enhancement “[i]f the
offense resulted in substantial interference with the administration of justice.”3
A cross-reference within the guideline directs that if the defendant “obstruct[ed]
the investigation or prosecution of a criminal offense, apply § 2X3.1 (Accessory
After the Fact) in respect to that criminal offense, if the resulting offense level
is greater than that determined [under § 2J1.2].”4
Under § 2X3.1, the base offense level is “6 levels lower than the offense
level for the underlying offense,” except that the base offense level shall not be
1
Because we conclude that the district court erroneously calculated the defendants’
guideline ranges, and we must remand for resentencing, we do not address Kimbrough’s claim
on cross-appeal that the court erroneously departed upward from the guidelines.
2
522 F.3d 607, 611 (5th Cir. 2008).
3
U.S.S.G. § 2J1.2(b)(2) (2006). Unless otherwise noted, all references to the guidelines
in this opinion are to the 2006 version that was applicable to Kimbrough and Cordier.
4
§ 2J1.2(c).
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less than 4 nor more than 30.5 For purposes of § 2X3.1, the “underlying offense”
is generally “the offense as to which the defendant is convicted of being an
accessory.”6
Here, Cordier pleaded guilty to accessory after the fact, in violation of 18
U.S.C. § 3. Because the applicable guideline is determined first with reference
to the offense of conviction, the starting point for calculating Cordier’s offense
level should have been § 2X3.1.7 Cordier’s offense level under § 2X3.1 will
depend on the offense level for the underlying drug conspiracy, which in turn
depends on the drug quantity involved in the offense.8
The drug quantity is also important in Kimbrough’s case. Kimbrough
pleaded guilty to conspiracy to obstruct justice, in violation of 18 U.S.C.
§ 1512(k). Thus, his starting point was § 2J1.2, which resulted in a total offense
level of 15. Kimbrough’s conduct unquestionably obstructed the investigation
of a criminal offense, however. Therefore, § 2J1.2’s cross-reference to § 2X3.1
will be triggered if the offense level under § 2X3.1 is higher than 15.9 As with
Cordier, Kimbrough’s offense level under § 2X3.1 depends on the drug quantity
involved in the underlying offense.10 The underlying drug conspiracy here
5
See § 2X3.1(a)(1)–(3).
6
§ 2X3.1, comment. (n.1).
7
See U.S.S.G. § 1B1.2(a) (“Determine the offense guideline section in Chapter Two
(Offense Conduct) applicable to the offense of conviction (i.e., the offense conduct charged in
the count of the indictment or information of which the defendant was convicted).”). Although
Cordier also pleaded guilty to conspiracy to obstruct justice and obstruction of justice, all
counts are grouped into a single count under the grouping rules because all three counts were
connected by a common criminal objective or constituted part of a common scheme or plan. See
§ 3D1.2(b).
8
See §§ 2D1.1(c), 2X3.1(a)(1).
9
See § 2J1.2(c)(1).
10
See §§ 2D1.1(c), 2X3.1(a)(1).
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involved drug quantities that undeniably result in an offense level much higher
than that achieved under § 2J1.2.11
The district court refused to apply § 2X3.1 because it found that for the
guideline to apply Kimbrough and Cordier must have known or should
reasonably have known that their conduct would result in further distribution
of drugs after they disclosed the investigation, and the court determined they did
not have such knowledge. Application Note 1 to § 2X3.1 instructs the 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, see
Application Note 10 of the Commentary to § 1B1.3 (Relevant Conduct).”12 We
have previously addressed this application note and determined that “[t]he
limitation on ‘reasonable foreseeability’ applies only to the ‘specific offense
characteristic,’ not the base offense level.” United States v. Cihak.13 For drug
offenses, drug quantity is not a specific offense characteristic. Thus, under
Cihak, Kimbrough and Cordier were not required to know or to reasonably
foresee the drug quantities involved in the underlying drug offense, and the
district court’s contrary determination was erroneous.14
The defendants argue that this reading of § 2X3.1 conflicts with
Application Note 1’s reference to Application Note 10 of § 1B1.3, as well as with
11
For example, the draft wiretap affidavit indicated that the conspiracy involved at
least 500 grams of crack cocaine. A drug offense involving at least 500 grams of crack cocaine
has a base offense level of 36. See § 2D1.1(c). A reduction of six levels under the accessory
guideline results in an offense level of 30. § 2X3.1(a)(1).
12
§ 2X3.1, comment. (n.1).
13
137 F.3d 252, 264 (5th Cir. 1998) (emphasis added).
14
Id.; see also United States v. Girardi, 62 F.3d 943, 946 (7th Cir. 1995); United States
v. Cross, 371 F.3d 176, 180–81 (4th Cir. 2004); United States v. Lang, 364 F.3d 1210, 1220–21
(10th Cir. 2004), reinstated by 405 F.3d 1060 (10th Cir. 2005); but see United States v. Shabazz,
263 F.3d 603, 608–09 (6th Cir. 2001).
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the plain language of § 1B1.3, and with our decision in United States v.
Warters.15 Application Note 10 of §1B1.3 provides that if the offense at issue is
accessory after the fact, “the conduct for which the defendant is accountable
includes all conduct relevant to determining the offense level for the underlying
offense that was known, or reasonably should have been known, by the
defendant.”16 The defendants contend that this language requires a knowledge
element for all conduct that is attributable to them. We agree with the Seventh
Circuit that “Application Note 10 does not say that an accessory after the fact’s
accountability is limited to conduct known or reasonably known; it merely states
that the accessory’s accountability includes conduct ‘known’ or that ‘reasonably
should have been known’ by the accessory.”17 Furthermore, the plain language
of § 1B1.3(a) instructs that the general relevant conduct rules apply “[u]nless
otherwise specified.” Section 2X3.1’s Application Note 1 plainly provides that
the knowledge requirement applies to the specific offense characteristics, not the
factors that determine the base offense level.18
The defendants contend that requiring knowledge only of specific offense
characteristics of the underlying offense, and not for conduct comprising the base
offense level, may result in accessories being punished equally severely, if not
more so, than the principals. The accessory guideline takes into account an
accessory’s lesser culpability by requiring that the base offense level be set six
15
885 F.2d 1266 (5th Cir. 1989).
16
U.S.S.G. § 1B1.3, comment. (n.10).
17
Girardi, 62 F.3d at 946.
18
Cihak, 137 F.3d at 264. For example, the specific offense characteristics of an
underlying drug offense that defendants must know or reasonably should have known include
the possession of a dangerous weapon, the use of an aircraft to import or export a controlled
substance, and the distribution of a controlled substance in a prison. See § 2D1.1(b)(1)–(3).
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levels below the underlying offense, with a cap in most cases at 30.19 The intent
of the guidelines plainly is to begin with the principal’s base offense level and
then decrease accordingly for the accessory. Drug trafficking offenses are
considered more severe in nature as the quantity of drugs involved increases,
and the guidelines thus provide for increased punishment for principals when
larger drug quantities are involved.20 Determining the offense level under
§ 2X3.1 from the drug quantity in the underlying offense is reasonable to punish
more severely “those who act as accessories-after-the-fact to more serious
crimes.”21
Our decision in Warters does not help the defendants. Warters construed
the guidelines for misprision of a felony under § 2X4.1 where the underlying
offense was a drug conspiracy that occurred in 1988.22 There, the district court
made no finding as to the drug quantity involved in the underlying offense, and
we remanded for resentencing, holding that the district court must determine
the base offense level by determining the actual amount of drugs involved in the
conspiracy and the amount that the defendant knew or should have known or
foreseen as relevant conduct.23 The guidelines and commentary for misprision
of a felony under § 2X4.1 and for accessory after the fact under § 2X3.1 are
similar. However, Warters was decided in September 1989 and construed a
version of the Sentencing Guidelines that differs from the version at issue in the
instant case. Specifically, the guidelines construed in Warters did not contain
19
§ 2X3.1(a).
20
See § 2D1.1(c).
21
Cross, 371 F.3d at 182 (internal quotation and citation omitted).
22
Warters, 885 F.2d at 1270.
23
Id. at 1272–73.
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the instruction in the current guidelines to apply the base offense level of the
underlying offense plus specific offense characteristics that the defendant knew
or should have known.24 Therefore, the Warters court was not faced with
construing the limitation on foreseeability found in Application Note 1 to both
§ 2X3.1 and § 2X4.1. We addressed that in Cihak, and we find that Cihak is the
relevant precedent here.
Furthermore, even if Kimbrough and Cordier were required to foresee a
drug quantity involved in the underlying drug offense, there was some evidence
of such knowledge. Kimbrough and Cordier both knew about Mackey’s illegal
drug activity, and the wiretap affidavit that Kimbrough read included the
information that at least 500 grams of crack cocaine had been sold by the
Mackey organization. Kimbrough and Cordier therefore knew, or reasonably
should have known, that the underlying offense involved substantial amounts
of drugs.
We therefore hold that the district court erroneously calculated the
defendants’ base offense levels by requiring that they know or reasonably foresee
the drug quantities involved in the underlying drug conspiracy. Because the
district court is required to consider the correctly calculated guideline range
when imposing a sentence, Kimbrough and Cordier must be resentenced.25 On
remand, the district court should begin with the correct guideline range and is
free to consider all the facts and circumstances of the case, along with the factors
24
See U.S.S.G. §§ 2X3.1, 2X4.1 (1988).
25
See Gall v. United States, 128 S. Ct. 586, 596 (2007); United States v. Mares, 402 F.3d
511, 519 (5th Cir. 2005) (“This duty to ‘consider’ the Guidelines will ordinarily require the
sentencing judge to determine the applicable Guidelines range even though the judge is not
required to sentence within that range.”).
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in 18 U.S.C. § 3553(a), that it deems relevant to its individualized assessment
of the proper sentence to be imposed.26
III.
The district court’s judgments are VACATED, and the cause is
REMANDED for resentencing of both defendants.
26
See Gall, 128 S. Ct. at 596–97.
10