United States v. Lemoure

United States Court of Appeals
For the First Circuit

No. 05-1377

UNITED STATES OF AMERICA,

Appellee,

v.

JOSEPH A. LeMOURE,

Defendant, Appellant.

No. 05-1440

UNITED STATES OF AMERICA,

Appellee,

v.

JOSEPH F. POLITO,

Defendant, Appellant.
_____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Boudin, Chief Judge,

Selya and Lynch, Circuit Judges.

James H. Budreau with whom Gerald Phelps was on brief for
appellant Joseph A. LeMoure.
 Robert A. George and Robert A. George & Associates, P.C. on
brief for appellant Joseph F. Polito.
Nathaniel S. Pollock, Civil Rights Division, Department of
Justice, with whom Jessica Dunsay Silver, Civil Rights Division,
Department of Justice, Wan J. Kim, Assistant Attorney General,
Michael J. Sullivan, United States Attorney, and S. Theodore
Merritt, Assistant United States Attorney, were on consolidated
brief for appellee.

January 29, 2007
 BOUDIN, Chief Judge. Before us are appeals by two Boston

police officers, Joseph LeMoure and Joseph Polito, from convictions

for a set of related crimes based on attempts to derail

investigations into LeMoure's beating of a civilian. The

background events are readily summarized, taking a balanced view of

the facts consistent with record support.

Early on June 24, 2000, LeMoure pursued and pulled over

a car driven by Stephen Duong and accused a passenger–-Peter

Fratus--of making an insulting gesture directed to LeMoure.

LeMoure dragged Fratus from the car, threw him to the ground,

punched him and kneed him in the head (whether LeMoure also hit him

in the head with a flashlight was disputed at trial). Fratus

thereafter filed a complaint with the Boston Police Department,

which was investigated by the Department's Internal Affairs

Division ("IAD").

In early 2001, Polito--a friend and subordinate of

LeMoure's--approached his close friends Dante Tordiglione and

Biagio DeLuca and asked them to give false statements to the IAD

supporting LeMoure. When they agreed, Polito instructed them

concerning the content of those statements. LeMoure asked his

close friend Joseph Weddleton to help him secure a "witness" to the

incident. Weddleton approached Ralph DeRota, a mutual friend who

lived near the location of the incident, to request that he give a

false statement to the IAD.

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 Despite the statements given by Tordiglione, DeLuca, and

DeRota, LeMoure was suspended. Fratus then filed a civil suit

against LeMoure. In the summer of 2002, prior to a deposition in

the civil case, Weddleton met with DeRota at LeMoure's suggestion

to refresh DeRota's memory of his false IAD testimony, which DeRota

then repeated in the deposition. When DeLuca and Tordiglione

hesitated to lie at their own depositions, LeMoure and Polito

pressed them to stand fast. Polito provided DeLuca and Tordiglione

with copies of their false statements to the IAD in order to

prepare them for their depositions. LeMoure also offered to pay

Tordiglione $10,000 for his trouble.

DeLuca repeated his false IAD testimony in his

deposition; Tordiglione claimed not to remember the incident, but

stated that his IAD testimony was true and based on his memory.

LeMoure, who was also deposed, testified that he did not strike

Fratus or pull him out of the car, and that he had not met DeRota,

DeLuca, or Tordiglione prior to their coming forward as witnesses.

The civil suit settled, but a grand jury investigation of the

incident had begun.

When DeLuca was subpoenaed by the grand jury, LeMoure

urged him to stick with his story, and Polito gave him $7,000 for

his attorney's fees, stating that the money came from LeMoure.

Polito also met with Tordiglione and DeLuca concerning DeLuca's

subpoena; in response to Tordiglione's expression of concern,

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Polito urged the two not to waver. In the end, Tordiglione and

DeRota testified truthfully to the grand jury in exchange for

immunity, and DeLuca did so in exchange for a plea agreement

including a government recommendation of probation. In July 2003,

Polito and LeMoure were indicted for a succession of offenses

relating to their obstructive conduct.

After a jury trial, Polito and LeMoure were convicted on

the counts listed in the margin, including conspiracy, witness

tampering, perjury and subornation, and obstruction of justice.1

Thereafter, they were sentenced to terms of 36 and 48 months,

respectively. They now appeal; most of the claims raise issues of

law which we review de novo, United States v. Coplin, 463 F.3d 96,

100 (1st Cir. 2006); issues of fact and judgment calls are reviewed

with more deference. Id.

1
Both were convicted of conspiracy to obstruct justice, 18
U.S.C. § 371 (2000) (Count Two); witness tampering, id. § 1512(b),
in connection with Tordiglione's deposition (Count Five), DeLuca's
deposition (Count Six), and DeLuca's grand jury testimony (Count
Twelve); subornation of perjury, id. § 1622, in connection with
DeLuca's deposition (Count Eight); and obstruction of justice, id.
§ 1503, for fabricating witness testimony in the civil case (Count
Nine) and for attempting to persuade DeLuca and Tordiglione to give
false testimony to the grand jury (Count Ten). Polito was also
convicted of witness tampering in connection with Tordiglione's
grand jury testimony (Count Eleven) and LeMoure of witness
tampering and subornation of perjury in connection with DeRota's
deposition (Counts Four and Seven, respectively) and perjury, id.
§ 1623, for his own deposition statements (Counts Thirteen and
Fourteen).

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 We begin with Polito's arguments, starting with his claim

that the district court should have dismissed the obstruction of

justice counts (Counts Nine and Ten) because section 1503, 18

U.S.C. § 1503, does not embrace witness tampering. He points out

that Congress in 1982 amended section 1503 to eliminate any

explicit reference to "witnesses" and enacted in its place the

witness tampering statute, 18 U.S.C. § 1512. Victim and Witness

Protection Act, Pub. L. No. 97-291 (1982).

The government responds that although section 1503 was

amended to remove any explicit reference to witnesses, its omnibus

"due administration of justice" clause continues to cover witness

tampering. Pertinently, section 1503 makes it unlawful to

corruptly . . . endeavor[] to influence . . .
any grand or petit juror, or officer in or of
any court of the United States . . . or
corruptly . . . influence[], obstruct[], or
impede[], or endeavor[] to influence,
obstruct, or impede, the due administration
of justice.

Section 1512(b)(1) focuses on witnesses (as well as victims and

informants), and makes it unlawful to:

knowingly use[] intimidation, threaten[], or
corruptly persuade[] another person, or
attempt[] to do so, or engage[] in misleading
conduct toward another person, with intent
to--(1) influence, delay, or prevent the
testimony of any person in an official
proceeding.

Admittedly, Polito is supported by the canon, instructive

rather than mandatory, that a specific treatment prevails over a

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more general provision, United States v. Lara, 181 F.3d 183, 198

(1st Cir.), cert. denied, 528 U.S. 979 (1999); the canon has added

force where, as here, the term "witness" was deleted from the

broader statute at the same time the new, more specific statute was

adopted. The Second Circuit has taken this restrictive view, but

the other circuits that have spoken on this issue are all opposed,2

and with good reason.

Section 1503 was enacted with two objectives: to protect

witnesses, jurors, and court officers, and to "prevent a

miscarriage of Justice by corrupt methods." United States v.

Lester, 749 F.2d 1288, 1292 (9th Cir. 1984). The term "witness"

was indeed deleted in 1982 from the first clause of section 1503;

but Congress left intact the omnibus clause forbidding efforts to

obstruct the due administration of justice, which had previously

been read by courts to encompass the corrupt persuasion of

witnesses.3

2
Compare United States v. Masterpol, 940 F.2d 760, 762-63 (2d
Cir. 1991), with United States v. Ladum, 141 F.3d 1328, 1337-38
(9th Cir.), cert. denied, 525 U.S. 1021 (1998); United States v.
Tackett, 113 F.3d 603, 609-11 (6th Cir. 1997), cert. denied, 522
U.S. 1089 (1998); United States v. Maloney, 71 F.3d 645, 658-59
(7th Cir. 1995), cert. denied, 519 U.S. 927 (1996); United States
v. Kenny, 973 F.2d 339, 342-43 (4th Cir. 1992); United States v.
Moody, 977 F.2d 1420, 1423-24 (11th Cir. 1992), cert. denied, 507
U.S. 944 (1993); and United States v. Williams, 874 F.2d 968, 977
n.25 (5th Cir. 1989).
3
E.g., United States v. Nicosia, 638 F.2d 970, 974-75 (7th
Cir. 1980), cert. denied, 452 U.S. 961 (1981); United States v.
Johnson, 605 F.2d 729, 730 (4th Cir. 1979), cert. denied, 444 U.S.
1020 (1980); cf. Haili v. United States, 260 F.2d 744, 746 (9th

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 Further, when section 1512 was initially enacted in 1982,

it dealt only with the use or threat of force against a witness;

the ban on corrupt persuasion was added only later in 1988. Anti-

Drug Abuse Act of 1988, Pub. L. 100-690, § 7029(c) (1988). It is

improbable that, in 1982, Congress meant to adopt (in section 1512)

a specific ban against forcible intimidation while impliedly

narrowing (in section 1503) the omnibus clause so as to

decriminalize corrupt but non-forcible interference with witnesses.

Thus, over and above the general presumption against

repeals merely by implication, United States v. United Cont'l Tuna

Corp., 425 U.S. 164, 168 (1976), this implied repeal would mean

that Congress had meant in 1982 to reduce the protection afforded

against soft witness tampering at the very time that it was trying

to expand protection of witnesses. Yet the statute's purpose was

"to enhance and protect the necessary role of . . . witnesses in

the criminal justice process . . . ." Victim and Witness

Protection Act of 1982, Pub. L. 97-291, § 2(b)(1)-(2).

Although we reach this result without any reliance on

post-1982 legislative history, it completes the story to note

Senator Biden's statement in 1988 when Congress amended section

1512 to cover non-coercive witness tampering. In reporting the

bill out of committee, Senator Biden explained the amendment as

Cir. 1958).

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 intended . . . merely to include in section 1512
the same protection of witnesses from non-
coercive influence that was (and is) found in
section 1503. It would permit prosecution of
such conduct in the Second Circuit, where it is
not now permitted, and would allow such
prosecutions in other circuits to be brought
under section 1512 rather than under the catch-
all provision of section 1503.

134 Cong. Rec. S17,369 (1988) (statement of Sen. Biden) (emphasis

added).

Polito's next argument concerns the phrase "misleading

conduct" in the witness tampering statute, section 1512(b)(1).

That statute makes unlawful "misleading conduct toward another

person" in order "to influence the testimony of any person" and

efforts to "corruptly persuade" another person in order to

influence his testimony. The evidence easily supported a

conviction on this latter theory. But, Polito argues, the jury

might have relied instead on the "misleading conduct" phrase,

thinking it sufficient that he had merely asked a witness to engage

in misleading conduct.

The jury was told (twice) that the defendant had to

"engag[e] in misleading conduct" toward another person with the

intent to influence, delay or prevent "the testimony of a person"

in the proceeding. Moreover, the evidence of corrupt persuasion

was overwhelming; it is highly improbable that the jury would

instead have convicted on a less salient misleading-the-tribunal

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theory, even assuming that the instructions did not adequately

negate it.

Polito makes two other related attacks on the

instructions as to section 1512(b)(1). First, he says, the court

did not sufficiently explain that, under the statute, the corrupt

persuasion must be done "knowingly"--a term that Arthur Andersen,

LLP v. United States, 544 U.S. 696, 705-07 (2005), later held to

require "consciousness of wrongdoing," id. at 706. At trial, both

Polito and the government had focused on "corrupt" rather than on

"knowingly" as the key to scienter.

In our case the term "knowingly" was included in the

instructions but not with the gloss ("consciousness of wrongdoing")

later supplied by Arthur Andersen. The government says that the

judge's instruction on the meaning of "corruptly"--that the jury

must find that the defendant acted "with an improper purpose"--

necessarily entails consciousness of wrongdoing. An instructing

judge who took Arthur Andersen for all it could be worth might find

this equation debatable.

But the situation in Arthur Andersen was dramatically

different than the one here. At issue there was the arguable

misuse of an otherwise legitimate document destruction policy, and

the trial court had instructed the jury that it could convict "even

if [the defendant] honestly and sincerely believed that its conduct

was lawful . . . ." 544 U.S. at 706. Neither defendant in this

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case could conceivably have thought that urging witnesses to lie in

official proceedings was lawful.

Polito makes a second effort to mine Arthur Andersen.

The Court said that the instructions there had failed to convey the

necessary nexus between the corrupt persuasion and the intent to

affect a particular official proceeding. See id. at 707; see also

United States v. Aguilar, 515 U.S. 583, 598-600 (1995). On the

facts of Arthur Andersen, the concern was legitimate; in our case,

the persuasion was largely aimed at official proceedings and the

instructions were adequate.

Specifically, the jury was told as to section 1512(b)(1)

that the defendant had to have a specific intent to influence

"testimony of a person in an official proceeding"; the civil

depositions and the grand jury inquiry were so identified in the

instructions; and the indictment identified the official proceeding

of concern in each count under section 1512(b)(1). This was not a

case of mere lies to investigators disconnected from proceedings.4

Boilerplate instructions as to section 1512 given after

Arthur Andersen are likely to be different than those used in cases

like this one, tried before Arthur Andersen. But neither of the

4
Polito makes the same nexus claim as to the section 1503
counts, but the jury was instructed that, as to those counts, it
needed to find that an official proceeding was pending, that the
defendants "knew of the pending proceeding," that they acted
corruptly to influence it, and that their acts had "the natural and
probable effect of interfering with the due administration of
justice."

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concerns that legitimately troubled the Supreme Court were

presented by the facts in this case. Failure to anticipate post-

trial changes in the law can pose troubling issues, but in this

case, the understandable failure to anticipate future precedent had

no ill effects.

Polito's next set of claims are that certain of the

counts are duplicative in violation of double jeopardy principles.

These claims were not raised in the district court, so we review

for plain error. United States v. Patel, 370 F.3d 108, 114 (1st

Cir. 2004). Since there was no error at all, the claims fail at

the first step of the Olano plain error analysis. See United

States v. Olano, 507 U.S. 725, 734 (1993).

Polito says that his convictions for violating section

1512(b)(1) and section 1503 must be vacated because they constitute

multiple punishments for the same offense. Multiple punishments

for the same offense, unlike multiple trials, are permissible if

the legislature so intended. Missouri v. Hunter, 459 U.S. 359, 365

(1983). Here, no showing of legislative intent is necessary

because the offenses are different under the default analysis

prescribed by Blockburger v. United States, 284 U.S. 299, 304

(1932).

In two of the section 1512(b)(1) counts (Counts Five and

Six), Polito was charged with tampering with two different

witnesses concerning their depositions in the civil case; in a

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section 1503 count (Count Nine), he was charged with obstructing

justice by fabricating witness testimony in the civil case.

Parallel counts were charged concerning the grand jury testimony.

In Count Ten, Polito was charged with obstructing the grand jury by

fabricating witness testimony; Counts Eleven and Twelve charged him

with tampering with specific grand jury witnesses. But under the

Blockburger test, whether two offenses are the same depends on the

elements of the crimes and not the similarity of underlying facts.

284 U.S. at 304.

Here, contrary to Polito's argument, each offense

requires one or more elements not required for the other offense.

Section 1512(b)(1) requires proof that one intend to "influence,

delay, or prevent . . . testimony of any person" (emphasis added);

section 1503 does not require such an element. Conversely, section

1503 as read by the Supreme Court requires an attempt to obstruct

a pending judicial proceeding, Aguilar, 515 U.S. at 599 (citing

Pettibone v. United States, 148 U.S. 197, 206 (1893) (construing

predecessor statute)); no such requirement of a pending proceeding

exists in section 1512. See 18 U.S.C. § 1512(f).

Polito also claims that Count Six, charging him with

witness tampering as to DeLuca's civil deposition testimony, is

merely a lesser included offense of Count Eight, which charged

subornation of perjury as to DeLuca's civil deposition testimony.

18 U.S.C. § 1622. Again, the answer is the same: witness tampering

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under section 1512(b)(1) and subornation of perjury under section

1622 each require an element that the other does not, so neither

can be a lesser included offense as to the other.

Section 1622 requires proof of actual perjury, while

section 1512(b)(1) does not; the latter is directed at specified

acts of tampering. Conversely, section 1512(b)(1) requires proof

of a nexus with "an official proceeding"; by contrast, section 1622

can be satisfied by procuring a person to lie materially in "any

declaration, certificate, verification, or statement under penalty

of perjury," 18 U.S.C. § 1621, without any nexus to an official

proceeding.

We now turn to LeMoure's arguments. As to his

conviction, LeMoure says that the district court erred concerning

a single piece of testimony. During the trial, Weddleton testified

that he had talked with LeMoure shortly before he (Weddleton) was

to appear before the grand jury, and that LeMoure had raised the

possibility that Weddleton might plead his Fifth Amendment

privilege against self-incrimination. LeMoure's trial counsel did

not object or request a cautionary instruction.

LeMoure now says that it was plain error for the judge to

fail to caution the jury that this mention of the Fifth Amendment

did not constitute witness tampering. We will assume arguendo

that, had LeMoure requested a cautionary instruction, the court's

failure to give one would have been error. Whether the failure to

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give the instruction sua sponte can be regarded as error at all is

a quite different question.

If a judge misstates the law in an instruction, this is

error. But if counsel has not objected to evidence or asked for a

cautionary instruction, it does not necessarily follow that the

judge has erred by tolerating the evidence or withholding a

caution. Lawyers sometimes think that "objectionable" testimony

from an adverse witness helps more than it hurts or that a

cautionary instruction will underscore testimony best ignored.

The district court is not required to "act sua sponte to

override seemingly plausible strategic choices on the part of

counselled defendants." United States v. De La Cruz, 902 F.2d 121,

124 (1st Cir. 1990). Although one could describe such choices as

waivers of claims of error, United States v. Yu-Leung, 51 F.3d

1116, 1121-22 (2d Cir. 1995), others might say that there is no

error at all when counsel is content and forgoes an optional

objection. United States v. Smith, 459 F.3d 1276, 1299-1304 (11th

Cir. 2006) (Tjoflat, J., specially concurring).5

In all events, the claim of plain error fails here

because there is no indication that the Fifth Amendment reference

or the lack of a cautionary instruction probably altered the

5
Of course, in a criminal case, counsel's choices may fall
below the requisite standard of care and open the way to a claim of
ineffective assistance of counsel, but no such charge is made in
this case (nor, as we will see, could prejudice be established if
it were made).

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result. United States v. Dominguez Benitez, 542 U.S. 74, 82

(2004). The government never charged LeMoure with tampering with

Weddleton's testimony and never argued to the jury that the Fifth

Amendment suggestion betrayed some improper motive bearing on

counts involving other witnesses with whom LeMoure clearly

tampered. Given the ample evidence of the latter, nothing in the

Weddleton episode carried much weight.

LeMoure's last argument concerns his sentencing. The

guideline calculations were complicated partly because the

guidelines required separate calculations for one group of offenses

related to the civil case and another to the grand jury proceeding.

The calculation followed by the district court is set forth in the

appendix to this decision; but the dispute in this case relates

only to one decision: a cross-reference required at one stage in

the calculation process.

Where an offense involves obstructing the investigation

or prosecution of a criminal offense, the guidelines instruct that

the base offense level should be that of an accessory after the

fact for the underlying crime if that level is greater than the

offense level for obstruction itself. U.S.S.G. § 2J1.2(c)(1). An

accessory after the fact is assigned an offense level 6 levels

below that prescribed for the underlying offense. Id. § 2X3.1.

The pre-sentence report ("PSR") determined that the

underlying offense under investigation by the grand jury was a

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violation of federal civil rights, 18 U.S.C. § 242--of which

LeMoure was charged, but on which the jury deadlocked--but that

guideline directs the use of the guideline for the conduct

underlying the civil rights offense, if the latter's offense level

is higher than level 10. U.S.S.G. § 2H1.1(a)(1), (3)(A). The PSR

concluded that the offense conduct underlying the section 242

charge was aggravated assault, with a base offense level of 14.

Aggravated assault is assault that involved "a dangerous

weapon with intent to cause bodily injury." Id. § 2A2.2 app. n.1.

In this case, the dangerous weapon was the flashlight that

(according to Fratus) LeMoure used to beat Fratus. The PSR then

added four levels for use of a dangerous weapon, three more for

bodily injury, six levels because LeMoure was a public official,

and two more because of LeMoure's managerial role. See id.

§§ 2A2.2(b)(2)(B), 2A2.2(b)(3)(A), 2H1.1(b)(1), 3B1.1(c).

Other adjustments, not themselves in dispute, led to a

combined offense level of 24 and, after factoring in criminal

history, a guideline range of 51 to 63 months. After considering

the factors listed in 18 U.S.C. § 3553, the court imposed a

sentence of 48 months. But for the decision to cross-reference the

aggravated assault guideline, the ultimate offense level would have

been lower and the sentence might have been lower as well.

LeMoure objects that the grand jury did not charge him

with using a flashlight to beat Fratus. Instead, the indictment

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merely alleged that he "willfully assault[ed Fratus] by forcibly

removing him from the . . . car, throwing him to the ground, and

striking and kneeing him in the head." LeMoure also says that

grand jury testimony by a doctor raises doubts about the use of a

flashlight and that, at the very least, he is entitled to an

evidentiary hearing on whether he used a flashlight.

The cross-reference looks to what the grand jury was

investigating, not what indictment was returned or what crime

actually occurred. United States v. Conley, 186 F.3d 7, 23-24 (1st

Cir. 1999), cert. denied, 529 U.S. 1017 (2000). Otherwise,

"obstructors of justice would benefit from . . . obstruction that

successfully persuaded a grand jury not to return an indictment."

Id. at 25. Nor is LeMoure's knowledge of the specific offenses

under investigation relevant. Id.

In this case, the district court found that the grand

jury was investigating the beating as an aggravated assault, given

Fratus' allegations that LeMoure had used a flashlight as a weapon.

This factual determination was not clearly erroneous. Whether

LeMoure did in fact use his flashlight to beat Fratus is not

controlling. For the same reason, an evidentiary hearing as to the

use of the flashlight was properly denied.

Affirmed.

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 APPENDIX

The PSR, which the district court adopted, began by

dividing the counts into two groups. U.S.S.G. § 3D1.1 (2004).

Group 1 contained the counts relating to the civil case; Group 2

contained the counts relating to the grand jury investigation.

Generally, the guidelines prescribe a base offense level

of 14 for obstruction of justice. U.S.S.G. § 2J1.2. This offense

level was adjusted upward by 4 levels to reflect LeMoure's role as

an organizer or leader of a criminal activity involving five or

more participants, yielding an offense level of 18. This offense

level applied to Group 1. However, the guidelines provide that,

"if the offense involved obstructing the investigation or

prosecution of a criminal offense"--a condition that applied to

Group 2 but not Group 1--then the sentencing court should apply

section 2X3.1 (Accessory After the Fact) if the resulting offense

level would be greater. U.S.S.G. § 2J1.2(c)(1).

Section 2X3.1, in turn, provides for an offense level 6

levels lower than the underlying offense. In this case, the PSR

determined that the underlying offense was the violation of section

242 charged in Count One; the guideline applicable to that offense

is section 2H1.1 (Offenses Involving Individual Rights). In

pertinent part, section 2H1.1 prescribes a base offense level that

is the greater of 10, U.S.S.G. § 2H1.1(a)(3)(A), or "the offense

level from the offense guideline applicable to any underlying

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offense." U.S.S.G. § 2H1.1(a)(1). The PSR determined that the

offense underlying the section 242 charge was aggravated assault,

defined as an assault that involved "a dangerous weapon with intent

to cause bodily injury." U.S.S.G. § 2A2.2 app. n.1. The PSR

identified the flashlight allegedly used to beat Fratus as the

dangerous weapon.

The guideline for aggravated assault, U.S.S.G. § 2A2.2,

provides for a base offense level of 14, to which the PSR added 4

levels for use of a dangerous weapon, U.S.S.G. § 2A2.2(b)(2)(B),

and 3 levels for bodily injury, U.S.S.G. § 2A2.2(b)(3)(A), for an

offense level of 21. The PSR then returned to the section 2H1.1,

and increased the offense level of the cross-referenced aggravated

assault an additional 6 levels because LeMoure was a public

official at the time of the offense, U.S.S.G. § 2H1.1(b)(1),

yielding an offense level of 27. Referring back to section 2X3.1,

the PSR subtracted 6 levels for a base offense level of 21, and

adjusted that level upward by 2 levels because of LeMoure's

managerial role, U.S.S.G. § 3B1.1(c), for a total Group 2 offense

level of 23.

As directed by section 3D1.3, the PSR applied the Group

2 offense level of 23 because it was higher than the Group 1

offense level of 18. To account for Group 1, it added one level,

U.S.S.G. § 3D1.4, for a combined offense level of 24. Given

LeMoure's criminal history, that offense level yielded a range of

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51 to 63 months. After considering the section 3553 factors, the

court imposed a sentence of 48 months.

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