United States Court of Appeals
For the First Circuit
No. 02-1236
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM SEDOMA, SR.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Robert L. Sheketoff for appellant.
Emily R. Schulman, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
June 12, 2003
LIPEZ, Circuit Judge. This case requires us to apply the
grouping principles set forth in § 3D1.2 of the Sentencing
Guidelines to the defendant William Sedoma, Sr.'s convictions for
conspiracy to possess with intent to distribute marijuana,
conspiracy to defraud the State of Rhode Island, its taxpayers, and
the Tiverton Police Department of their intangible right to the
defendant's honest services, ten counts of mail fraud, and one
count of wire fraud.
I.
From January 1996 through March 1998, a marijuana and
cocaine trafficking organization operated in and around Tiverton,
Rhode Island and Fall River, Massachusetts. Sedoma, a Detective
Sergeant with the Tiverton Police Department, was a member of this
organization, acting as "lookout" and "protector" for the
organization and its members by providing confidential police
information and other specialized assistance. This assistance
included checking vehicle registrations and telephone subscriber
records, disclosing the identities of undercover police operatives
and cooperating individuals, and warning the organization of police
enforcement actions such as controlled deliveries of drug packages
intercepted by law enforcement agencies. In return for his
protection and assistance, Sedoma received cash payments and other
benefits from the organization--specifically, he was paid $25 per
pound of marijuana that the organization shipped into Tiverton.
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Arrested, indicted, and tried for this criminal activity,
Sedoma was convicted on February 23, 2001, of conspiracy to possess
with intent to distribute marijuana, see 21 U.S.C. § 846,
conspiracy to defraud the United States by devising and executing
a scheme to defraud the State of Rhode Island, its taxpayers, and
the Tiverton Police Department of their intangible right to the
defendant's fair and honest services, see 18 U.S.C. §§ 371, 1346,
ten counts of mail fraud, see 18 U.S.C. § 1341, and one count of
wire fraud, see 18 U.S.C. § 1343. On February 8, 2002, the
district court sentenced Sedoma to a term of 293 months of
imprisonment on the drug conspiracy count and 60-month terms on the
conspiracy to defraud count, the ten mail fraud counts and the wire
fraud count, all of the terms to be served concurrently, followed
by four years of supervised release. Sedoma appeals his sentence
on the theory that the district court erred by failing to group for
sentencing purposes under U.S.S.G. § 3D1.2 the drug conspiracy and
the conspiracy to defraud. We agree. Therefore, we vacate
Sedoma's sentence and remand to the district court for
resentencing.
II.
In determining Sedoma's sentence, the district court
relied almost entirely on the Presentence Report (PSR) prepared by
the Probation Office. Accordingly, we address our analysis
directly to the PSR. The PSR divided Sedoma's offenses into two
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groups. Group 1 consisted of the drug conspiracy. Group 2
consisted of the conspiracy to defraud and the mail and wire fraud
counts.
Pursuant to the drug quantity tables set forth in
U.S.S.G. § 2D1.1(c)(4), and based on his participation in a
conspiracy to distribute between 1,000 and 3,000 kilograms of
marijuana, Sedoma's base offense level for Group 1 was 32. The PSR
recommended, and the district court assigned, a two-level upward
adjustment for abuse of a position of trust under U.S.S.G. § 3B1.3,
and another 2-level upward adjustment for obstruction of justice
under U.S.S.G. § 3C1.1, bringing his adjusted offense level to 36.
For the Group 2 convictions, the PSR refers to U.S.S.G.
§ 2X1.1, which addresses assignment of an offense level for
attempt, conspiracy and solicitation. Section 2X1.1(c) provides
that, when a conspiracy is expressly covered by another offense
guideline section, that cross-referenced guideline should be
applied. In this case, both 18 U.S.C. § 371, conspiracy to
defraud the United States, and the specific mail and wire fraud
statutes, 18 U.S.C. §§ 1341, 1343, are explicitly covered by
U.S.S.G. § 2C1.7--fraud involving deprivation of the intangible
right to the honest services of public officials. Section
2C1.7(c)(1) directs that "[i]f the offense was committed for the
purpose of facilitating the commission of another criminal offense,
apply the offense guideline applicable to a conspiracy to commit
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that other offense if the resulting offense level is greater than
that determined [by applying § 2C1.7(a) and (b)]." The application
of § 2C1.7(a) and (b) would result in an offense level of 10. The
PSR determined that Sedoma did indeed commit the conspiracy to
defraud for the purpose of facilitating the commission of the drug
conspiracy. Thus, the guidelines point us again to § 2D1.1(c)(4)
and result in an offense level (adjusted for abuse of position of
trust and obstruction of justice) of 36. Since this is greater
than the offense level that would result from the application of
§ 2C1.7(a) and (b), § 2C1.7(c) applies, resulting in a final
offense level for Group 2 of 36.
The PSR then turned to § 3D1.4 which determines the
combined offense level for multiple groups. In determining the
combined offense level, § 3D1.4(a) instructs the sentencing judge
to assign one unit for the group with the highest offense level and
then assign one additional unit for each group that is equally
serious or from 1 to 4 offense levels less serious.1 Section 3D1.4
also contains a chart which relates an increase in offense level to
the total number of units.2 This increase is to be added to the
1
Sections 3D1.4(b) and (c) count as one-half unit any Group
5 to 8 levels less serious than the Group with the highest offense
level and disregards any Group that is 9 or more levels less
serious, although such Groups may provide reason for sentencing at
the higher end of the applicable sentencing range.
2
Section 3D1.4 provides as follows:
The combined offense level is determined by taking the
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count with the highest offense level to determine the combined
offense level. In this case, the adjusted offense level of 36 for
Group 1 is the highest offense level, and the PSR assigns it one
unit. Another unit is assigned for Group 2 which, with an offense
level of 36, is equally serious. According to the chart, two units
requires a 2-level increase, resulting in a total combined offense
level of 38.
The PSR determined that Sedoma had a criminal history
category of I. With a criminal history category of I, an offense
level of 38 results in a sentence range of 235 to 293 months. The
district court sentenced Sedoma to 293 months of imprisonment, the
maximum sentence within this range.
III.
During sentencing, Sedoma did not object to the court's
grouping of his counts of conviction. Therefore, we review for
plain error Sedoma's argument that, pursuant to U.S.S.G. § 3D1.2,
the district court should have grouped together the drug conspiracy
with the conspiracy to defraud, and mail and wire fraud counts.
offense level applicable to the Group with the highest
offense level and increasing that offense level by the
amount indicated in the following table:
Number of Units Increase in Offense Level
1 none
1 ½ add 1 level
2 add 2 levels
2 ½ - 3 add 3 levels
3 ½ - 5 add 4 levels
More than 5 add 5 levels.
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United States v. Albanese, 287 F.3d 226, 228 (1st Cir. 2002)
(citing United States v. Olano, 507 U.S. 725, 731-32 (1993)).
Under plain error review, the appellant must show (1) the
occurrence of an error; (2) that the error is obvious or clear
under current law; and (3) that the error substantially and
adversely affects the rights of the appellant. Olano, 507 U.S. at
732-34. Remedial discretion in the face of plain error should be
exercised "if the error seriously affects the fairness, integrity
or public reputation of judicial proceedings." Id. at 736
(internal quotation marks omitted).
Relying on § 3D1.2, Sedoma's challenge to his sentence is
three-pronged. Section 3D1.2 provides that "[a]ll counts involving
substantially the same harm shall be grouped together into a single
Group." The provision then goes on to explain the meaning of
"substantially the same harm" by listing four subsections defining
the circumstances under which counts involve substantially the same
harm for the purposes of the rule. Sedoma argues that three of
these subsections--§ 3D1.2(b), (c), (d)--mandate grouping of his
counts of conviction.
A. Section 3D1.2(b)
Under § 3D1.2(b), counts are to be grouped together
"[w]hen counts involve the same victim and two or more acts or
transactions connected by a common criminal objective or
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constituting part of a common scheme or plan." Application note 2
explains that
[f]or offenses in which there are no
identifiable victims (e.g., drug or
immigration offenses, where society at large
is the victim), the "victim" for purposes of
subsection[] . . . (b) is the societal
interest that is harmed. In such cases, the
counts are grouped together when the societal
interests that are harmed are closely related.
Sedoma argues that, although legally distinct, the drug conspiracy
and the conspiracy to defraud are so completely intertwined
factually as to be virtually indistinguishable. For Sedoma and the
drug trafficking organization, there was a single course of conduct
designed to produce one harm: the continued sale of a controlled
substance. Thus, Sedoma argues that the counts are connected by a
common criminal objective involving a single societal harm and
should be grouped pursuant to § 3D1.2(b).
The government counters that § 3D1.2(b) does not apply
because the marijuana trafficking conspiracy harmed society's
interest in drug prevention, whereas the conspiracy to defraud
harmed the integrity of Rhode Island's law enforcement agencies.
Because Sedoma's two conspiracy convictions harmed distinct social
interests, the government maintains that they did not involve the
same victim within the meaning of § 3D1.2(b), and therefore were
properly counted as two groups.
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B. Section 3D1.2(c)
Section 3D1.2(c) provides that counts are to be grouped
"[w]hen one of the counts embodies conduct that is treated as a
specific offense characteristic in, or other adjustment to, the
guideline applicable to another of the counts." Sedoma argues that
the conduct embodied in the conspiracy to defraud count--defrauding
the public of its intangible right to the defendant's honest
services--formed the basis of the upward adjustment to the drug
conspiracy count for abuse of a position of public trust under
§ 3B1.3.
The government argues that Sedoma's conspiracy to defraud
embodies conduct that is distinct from that upon which his
conviction for conspiring to possess with intent to distribute
marijuana was based. Therefore, the adjustment to Sedoma's Group
1 offense level for abusing his position of trust to facilitate the
marijuana trafficking conspiracy does not "fully account" for the
conduct embodied in the conspiracy to defraud and does not meet the
requirements of § 3D1.2(c).
C. Section 3D1.2(d)
Finally, Section 3D1.2(d) instructs courts to group
offenses for which "the offense level is determined largely on the
basis of the total amount of harm or loss, or the quantity of a
substance involved, or some other measure of aggregate harm," and
states that "offenses covered by the following guidelines are to be
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grouped under this subsection." The list includes § 2D1.1 (under
which Sedoma's drug offense falls) and § 2C1.7 (the guideline for
the substantive offense underlying the conspiracy to defraud).
Because sections 2D1.1 and 2C1.7 both calculate the base offense
level by reference to the quantity of drugs attributable to the
conspiracy, Sedoma argues that the counts should be grouped under
§ 3D1.2(d).
The government counters that while the quantity of drugs
reasonably foreseeable to Sedoma as a result of his participation
in the conspiracy is a straightforward measure of the societal harm
flowing from that violation, the use of the drug quantity to
determine the offense level attributable to the conspiracy to
defraud does not directly measure the harm resulting from that
offense. As the statutory language acknowledges, the right of the
State of Rhode Island, its taxpayers, and the Tiverton Police
Department to Sedoma's honest services is "intangible." 18 U.S.C.
§ 1346. Because there is no direct, incremental measure of the
harm caused by conspiring to defraud others of their intangible
right to honest services, the government concludes that the harms
stemming from Sedoma's two conspiracy convictions are incomparable
and therefore cannot be aggregated effectively for the purpose of
§ 3D1.2(b).
Having considered the respective arguments of the
parties, we conclude that the district court committed plain error
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in failing to group the drug conspiracy and § 371 conspiracy to
defraud the United States under § 3D1.2(c). Since that error alone
requires us to vacate the sentence imposed, we need not decide the
merits of Sedoma's claims based on subsections (b) and (d).
IV.
A. The Error
According to § 3D1.2(c), "[w]hen one of the counts
embodies conduct that is treated as . . . [an] adjustment to [] the
guideline applicable to another of the counts," the counts "shall
be grouped together into a single Group." Application note 5 to
§ 3D1.2 explains that the purpose of subsection (c) is to
"prevent[] 'double counting' of offense behavior" as long as the
offenses are "closely related." Thus, in our analysis of §
3D1.2(c), we must determine whether the conduct embodied in the
conspiracy to defraud is treated as an adjustment to the guideline
applicable to the drug conspiracy. If it is, the court's
imposition of the two-level upward adjustment for abuse of a
position of trust under § 3B1.3 to the base offense level of the
drug conspiracy count, followed by another two-level increase for
the separate count of conspiracy to defraud the public of honest
services pursuant to the § 3D1.4 combined offense level
determination, results in double counting and triggers the
applicability of § 3D1.2(c).
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The Probation Office determined that Sedoma committed the
conspiracy to defraud "for the purpose of facilitating the
commission of another criminal offense"--the conspiracy to possess
with intent to distribute marijuana.3 Thus, the conduct depriving
the public of Sedoma's honest services is intricately related to
the drug conspiracy, and, as such, is addressed by the PSR in its
upward adjustment to Sedoma's drug conspiracy sentence for abuse of
a position of trust. In its support for the upward adjustment, the
PSR stated that Sedoma facilitated the commission of the drug
conspiracy
by disclosing confidential law enforcement
information to [the drug organization] which
included information regarding: ongoing
criminal investigations, controlled drug
deliveries, and the identity of undercover
officers/cooperating witnesses. Sedoma also
conducted license plate checks, criminal
record inquiries, and telephone subscriber
checks in his capacity as a police officer and
provided information which he obtained from
these inquires to [the drug organization].
Given this analysis, the PSR unmistakably used conduct embodied in
the conspiracy to defraud count as the basis for a two-point abuse
of position of trust adjustment to the base offense level of the
drug conspiracy count. Yet conduct embodied in the conspiracy to
defraud count also resulted in an additional two-level increase to
Sedoma's offense level for the drug conspiracy under the § 3D1.4
3
Although not made explicit during sentencing, the district
court accepted this finding in its adoption of the PSR.
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combined offense level analysis. Grouping all of the counts into
one group would avoid this second two-level addition. As noted,
such avoidance of double-counting is the express purpose of §
3D1.2(c).
The government argues that the district court, in
adopting the PSR, correctly avoided grouping the drug conspiracy
and the conspiracy to defraud pursuant to § 3D1.2(c) "because the
adjustment to Defendant's Group 1 offense level for abusing his
position of public trust to facilitate the charged marijuana
trafficking conspiracy did not fully account for the conduct
embodied in Defendant's conspiracy to defraud." Asserting that
"the conspiracy to defraud encompassed conduct that was distinct
from that upon which the conviction for conspiring to possess with
intent to distribute marijuana was based," the government argues
that imposition of the two-level abuse of a position of trust
adjustment to the drug conspiracy charge does not encompass all of
the conduct constituting the conspiracy to defraud. Therefore,
according to the government, grouping of the two offenses would
result in some of the conduct constituting the conspiracy to
defraud going unpunished.
The government's grouping argument is a bit opaque. If
the government means that the conspiracy to defraud involved overt
acts distinct from overt acts that furthered the marijuana
distribution conspiracy, that is self-evidently true and beside the
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point. The crucial question is whether conduct embodied in the
conspiracy to defraud is accounted for by the "abuse of position of
trust" adjustment (§ 3B1.3) which, by its terms, applies if "the
defendant abused a position of public . . . trust . . . in a
manner that significantly facilitated the commission or concealment
of the offense. . ." U.S.S.G. § 3B1.3 (emphasis added). If some
of the overt acts embodied in the conspiracy to defraud involved an
abuse of a position of public trust and significantly facilitated
the commission of the drug conspiracy, the adjustment applies. The
PSR makes clear that there was such facilitation here. Thus, by
the terms of the applicable grouping provision of the Guidelines (§
3D1.2(c)), the conspiracy to defraud count "embodie[d] conduct that
is treated as . . . [an] adjustment to [] the guideline applicable
to [the drug conspiracy]."
The plain language of § 3D1.2(c) does not require that
the adjustment to the drug conspiracy offense level "fully account
for" the conduct covered by the conspiracy to defraud. Instead, it
merely requires that conduct "embodie[d]" by the second offense be
"treated as an adjustment." The meaning of "embody" is "to collect
into or include in a body; organize; incorporate." Random House
Webster's Unabridged Dictionary 635 (2d ed. 1997). The conspiracy
to defraud included conduct that was treated as an adjustment to
the drug conspiracy offense level. Moreover, the government's
argument that grouping all the counts would impermissibly result in
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some of the conduct constituting the conspiracy to defraud going
unpunished is directly refuted by application note 4 to § 3D1.3--
the Guidelines section that would apply to determine the applicable
offense level if all the counts were grouped. Application note 4
to § 3D1.3 acknowledges that "[s]ometimes the rule specified in
this section may not result in incremental punishment for
additional criminal acts because of the grouping rules." It is
well established that "courts should strive to apply the guidelines
as written, giving full force and effect to the Sentencing
Commission's interpretive commentary and application notes."
United States v. Zapata, 1 F.3d 46, 47 (1st Cir. 1993). Thus,
although the government may have a policy argument that the counts
should not be grouped into a single group because some of the
conduct involved in the conspiracy to defraud may go unpunished,
the Guidelines, as written, do not require that all of the conduct
be "fully account[ed] for." By the plain language of § 3D1.2(c),
it is enough that conduct "embodied" in the second offense is
"treated as an adjustment" to the other offense.
Moreover, the factual premise of the government's counter
argument to grouping under § 3D1.2(c) is dubious. As noted, the
government's articulation of this argument--that "the conspiracy to
defraud encompassed conduct that was distinct from that upon which
the [drug conspiracy] was based"--makes little sense. Putting a
more sensible spin on the argument, the government may be saying
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that some of the conduct embodied in the conspiracy to defraud was
not embodied in the adjustment for an abuse of a position of trust
because (a) the conduct was not an abuse of Sedoma's position as a
police officer, and/or (b) it did not significantly facilitate the
drug conspiracy. Even with that understanding, the argument is
still unpersuasive.
The government asserts that because Sedoma was paid for
disclosing to the drug organization the identity of a cooperating
witness separately from and in addition to the payments he received
on a per-pound basis for every shipment of marijuana the
organization received, this aspect of Sedoma's theft of honest
services was outside the scope of the conviction for conspiring to
possess with intent to distribute marijuana. Again, the basis for
calculating the payment to Sedoma seems beside the point when the
payment was for conduct that abused his position of trust and
facilitated the drug conspiracy. Similarly, Sedoma conducted
license plate queries and criminal record checks at the request of
the drug organization when the head of the organization suspected
undercover police activity. The government argues that, because
the queries were conducted "on a variety of individuals, many of
whom had no known connection to [the] drug organization, [they]
were not accounted for in the abuse of a position of trust
adjustment to this Group 1 offense level." However, these very
examples were listed in the PSR adopted by the court as conduct
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supporting the adjustment for abuse of his position of trust, and
rightly so. These actions reinforced Sedoma's position in the
organization as protector and facilitator.
Additionally, the government lists (a) selling a firearm
to a member of the drug organization, (b) falsely notarizing the
liquor license application of the nightclub (owned by the head of
the drug organization) which, by the government's admission, "was
one of the primary sites at which [the drug organization] stored,
processed and packaged marijuana," and (c) attending parties hosted
by members of the drug organization at which drugs were consumed,
as examples of conduct not facilitated by Sedoma's position as a
police officer and, therefore, not accounted for by the adjustment
for abuse of a position of trust. While these acts are closely
related to the drug conspiracy and reinforce Sedoma's position in
the organization as protector and facilitator, the government may
be correct that they were not facilitated by his position as a
police officer. Even if this were so, it would not affect our
conclusion that § 3D1.2(c) requires the grouping of all Sedoma's
convictions. The adjustment for Sedoma's abuse of his position of
trust does not have to "fully account" for, or incrementally
punish, every act that furthered the conspiracy to defraud.
Indisputably, Sedoma's participation in the conspiracy to defraud
the public of his honest services as a Tiverton police officer
primarily involved his disclosure of law enforcement information to
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the drug organization. Indeed, the indictment for the conspiracy
to defraud focused on this disclosure conduct. This count of the
indictment "embodie[d] conduct that [was] treated as . . . [an]
adjustment to" the offense level of the drug conspiracy for abuse
of a position of trust. U.S.S.G. § 3D1.2(c). Thus, because the
plain language of § 3D1.2 requires that the counts "shall be
grouped," the failure to group the counts constitutes an error that
is clear under current law. U.S. v. Seesing, 234 F.3d 456, 460
(9th Cir. 2000) (holding that upward adjustment for use of a
homemade silencer without a serial number is clear error when the
plain language of the guideline refers to a firearm with an
"altered or obliterated serial number."); see also U.S. v. Munoz,
83 F.3d 7, 9 (1st Cir. 1996).
B. Plain Error
Plain error review requires that the clear error
substantially and adversely affect the rights of the appellant.
Having determined that the drug conspiracy and the § 371 conspiracy
should have been grouped according to the plain language of
§ 3D1.2(c), we note that § 3D1.3(a) directs the district court in
the determination of the offense level applicable to the Group.
Section 3D1.3(a) provides that "in the case of counts grouped
together pursuant to § 3D1.2(a) - (c), the offense level applicable
to a Group is the offense level, determined in accordance with
Chapter Two and Parts A, B, and C of Chapter Three, for the most
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serious of the counts comprising the Group, i.e. the highest
offense level of the counts in the Group." Here, because the
offense level for the conspiracy to defraud is determined by cross-
reference to the underlying offense (in this case, the drug
conspiracy) pursuant to § 2C1.7(c), both counts carry the same base
offense level as determined by § 2D1.1(c), i.e., 32. Thus, the
highest offense level of the counts in the Group is 32. When the
upward adjustments for abuse of position of trust and obstruction
of justice are made, the total offense level is 36--two offense
levels lower than the offense level of 38 determined without
grouping.
For a defendant with a criminal history category of I, an
offense level of 36 carries a sentence range of 188 to 235 months,
whereas an offense level of 38 carries a sentence range of 235 to
293 months. Sedoma was sentenced to the high end of the range
applicable to an offense level of 38. Thus, the district court's
failure to group the counts pursuant to § 3D1.2(c) permitted the
court to increase the available sentence by 58 months. That
increase in the sentence substantially and adversely affected
Sedoma's rights.
We may exercise our discretion to correct plain error
only if it "seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings." Olano, 507 U.S. at 732. When
a defendant's sentence is increased by almost five years as a
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result of a plain error in applying the Sentencing Guidelines, it
would adversely affect the fairness, integrity and public
reputation of judicial proceedings to ignore that error. See
United States v. Zillgitt, 286 F.3d 128, 141 (2d Cir. 2002) ("[T]he
fairness of the judicial proceedings was 'seriously affected' in
this case by the magnitude of the increase that resulted from the
sentencing error."). Hence, we conclude that Sedoma's sentence
constitutes plain error that must be redressed.
V.
For the reasons stated above, the sentence imposed by the
district court is vacated and this case is remanded to the district
court for resentencing consistent with this opinion.
So ordered.
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