766 F.3d 360
3rd Cir.2014Background
- Donald Solomon, former police chief, accepted cash and provided protection while in uniform for what he believed were multi-kilogram cocaine shipments in an FBI reverse-sting; he also purchased and supplied restricted Tasers for use in collecting drug debts.
- Solomon pleaded guilty to three counts of Hobbs Act extortion under color of official right and faced sentencing under U.S.S.G. § 2C1.1.
- Probation applied the § 2C1.1(c)(1) cross-reference to § 2D1.1 (drug trafficking) because Solomon accepted payments to facilitate what he believed were drug deals; the cross-reference produced a much higher offense level based on the agreed drug quantities.
- The District Court applied an additional 2-level § 3B1.3 enhancement for abuse of a position of trust, producing a Guidelines range of 135–168 months and sentenced Solomon to 135 months.
- On appeal Solomon challenged (1) the applicability of the § 2C1.1(c)(1) cross-reference because the “other offense” was a government sting and thus not an actual crime, and (2) the § 3B1.3 enhancement, arguing Application Note 6 to § 2C1.1 forbids that adjustment even where the cross-reference is used.
- The Third Circuit affirmed use of the cross-reference but held Application Note 6 bars applying § 3B1.3 where the sentence originates under § 2C1.1, vacated the sentence, and remanded for resentencing under the corrected Guidelines range (108–135 months).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2C1.1(c)(1) cross-reference to conspiracy/drug guideline applies when the purported "other offense" was a government sting | Solomon: cross-reference cannot apply because no actual drug offense or conspiracy existed (all other participants were government agents); he could not be charged with distribution of real drugs | Government: cross-reference applies because Solomon accepted payments for the purpose of facilitating what he believed were drug crimes; Guidelines look to defendant's purpose, not whether others were culpable | Court: Affirmed cross-reference; purpose to facilitate another crime suffices even in reverse-sting contexts (cross-reference does not require an actually chargeable separate offense) |
| Whether § 3B1.3 abuse-of-trust enhancement may be applied when the offense level is determined via § 2C1.1 cross-reference to § 2D1.1 | Solomon: Application Note 6 to § 2C1.1 expressly forbids applying § 3B1.3 and that prohibition extends when the cross-reference is used because sentencing still "originates" under § 2C1.1 | Government: Once the cross-reference yields the controlling guideline (§ 2D1.1), Chapter Three adjustments are determined with respect to that referenced guideline; § 2C1.1's note does not expressly limit cross-reference cases | Court: Reversed § 3B1.3 application; Application Note 6 bars § 3B1.3 for sentences originating under § 2C1.1, including those using the cross-reference; remanded for resentencing |
Key Cases Cited
- United States v. Ruiz, 621 F.3d 390 (5th Cir. 2010) (cross-reference applied in reverse-sting where defendant accepted payments to facilitate cocaine smuggling)
- United States v. Shenberg, 89 F.3d 1461 (11th Cir. 1996) (affirming cross-reference application where defendant provided information believed to result in murder)
- United States v. Sed, 601 F.3d 224 (3d Cir. 2010) (discussing concerns about reverse-sting manipulation of Guidelines)
- United States v. Baird, 109 F.3d 856 (3d Cir. 1997) (explaining Guidelines mix charge-offense and real-conduct sentencing elements)
- United States v. Grier, 475 F.3d 556 (3d Cir. 2007) (en banc) (plenary review governing circuit precedent on Guidelines interpretation)
- Nyhuis v. Reno, 204 F.3d 65 (3d Cir. 2000) (canonical guidance on giving effect to amended language)
- United States v. Langford, 516 F.3d 205 (3d Cir. 2008) (remand for resentencing required where incorrectly applied Guidelines might have affected sentence)