755 F.3d 645
8th Cir.2014Background
- In May 2012, Lee Smith solicited an informant (posing as a hitman) to kill his wife, negotiated a price of $1,500, and transported the informant across state lines during the scheme.
- The informant, cooperating with law enforcement, reported the interactions; Smith later confessed after police confronted him.
- Smith pleaded guilty to violating 18 U.S.C. § 1958(a) (use of interstate facilities in the commission of murder-for-hire).
- The plea agreement anticipated a Guidelines range based on U.S.S.G. § 2E1.4(a)(1) (base offense level 32), yielding 87–108 months.
- The PSR applied U.S.S.G. § 2E1.4(a)(2) and cross-referenced to U.S.S.G. § 2A1.5(b)(1), resulting in a higher base level (37) and a Guidelines range of 151–188 months.
- The district court adopted the PSR calculations but varied downward and sentenced Smith to 96 months; Smith appealed the Guidelines calculation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2E1.4(a)(1) is superfluous because § 1958(a) always involves a paid solicitation (so § 2E1.4(a)(2) and § 2A1.5 always apply) | Smith: § 1958(a) necessarily involves offering pecuniary gain, so cross-reference will always apply, rendering § 2E1.4(a)(1) meaningless | Government: § 1958(a) requires only use of interstate commerce with intent that a murder be committed for hire; it does not require an actual offer or acceptance of pecuniary value, so § 2E1.4(a)(1) can apply in some cases | Court: Rejected Smith; § 1958(a) does not always require an offer/receipt of pecuniary value, so § 2E1.4(a)(1) is not superfluous |
| Whether § 2E1.4(a)(2) may be applied based on conduct that is the same as the § 1958(a) offense or instead requires proven conduct beyond the offense of conviction | Smith: Cross-reference may only be applied if it rests on conduct beyond that underlying the § 1958(a) conviction | Government: § 2E1.4(a)(2) requires using the higher base level associated with the proven underlying unlawful conduct, without an extra‑conduct requirement | Court: Rejected Smith’s “additional required conduct” argument, following prior Eighth Circuit precedent; cross‑reference may be to conduct proven even if it overlaps with the conviction |
Key Cases Cited
- Mathijssen v. United States, 406 F.3d 496 (8th Cir.) (standard of review for guidelines interpretation is de novo)
- Dotson v. United States, 570 F.3d 1067 (8th Cir.) (rejecting argument that cross‑reference under § 2E1.4(a)(2) requires conduct beyond the conviction)
- Chickasaw Nation v. United States, 534 U.S. 84 (2001) (canon against rendering statutory language superfluous)