*3 TJOFLAT, Before BARKETT and MAGILL*, Circuit Judges.
TJOFLAT, Judge: Circuit I.
A. Between October of ap- pellants Ronald Eugene McClain and Des- mond Adrian Tucker conspired to create $80,000 and cash over in counterfeit checks on legitimate drawn bank accounts at sev- eral federally insured financial institutions. Appellants’ operandi modus was to recruit young people, primarily females, to cash the counterfeit checks at various bank branches and business locations within outside the Northern District of Georgia. Appellants helped their female ob- recruits tain false identification and transported them to the various locations they where negotiated the checks. After the checks cashed, were McClain and Tucker collect- ed the money paid and each their respec- tive recruits a fee for their services. July In appellants brought four female on an recruits extended trip Macon, Georgia for purpose cashing counterfeit checks drawn on the ac- bank count of Blue Body Bird Company. Tuck- er had recruited two of the four females: Jessica Doe, Garrett1 and Jane a minor. * Magill, Honorable J. Frank Judge U.S. Circuit Appellants provided Garrett with false birth Circuit, Eighth for the sitting by designation. certificates in the names "Catherine Stock- vehicle A search deputy.3 another to police, statement to Garrett’s According $1,924 in cur- revealed Tucker driven time he age her Doe asked Tucker com- passenger in the firearm rency and the counterfeit cash her recruited trunk. $3,000 in the another partment, and she checks, responded Doe always Tucker the FBI told Garrett fact, only Doe old. years twenty vehicle, un- either the firearm kept years old. sixteen her seat, he drove when his beside der or shrubbery A search of checks. cash drove Tucker July or about On coun- numerous vehicle revealed near Maeon-area various Garrett Company checks Body Bird Blue terfeit checks, while cash counterfeit locations *4 cards. false identification and re- two female the other drove the same in businesses and to banks cruits B. deputy ar- County Sheriffs A Bibb area. of District 1999, 25, a Northern May On traveling who were two females the rested indictment an jury returned grand Georgia cash attempted to they McClain after with McClain, co-con- Tucker, and a charging grocery Publix at a checks King4 counterfeit with Quincy Lamar named spirator Later capture.2 eluded store; bank conspiracy of count one 371,5 § counterfeit cashing fraud, several of 18 U.S.C. in day, after violation fraud, violation in Baines,” of bank Gar- “Taylor multiple counts out to made checks of final count § 1344.6 18 U.S.C. arrested Doe, rett, and Tucker were jury ver- and resulted to trial Baines,” proceeded Garrett "Taylor which borough” and 9, 1999. guilty on December dicts identifica- of false forms other to obtain used tion. provides: U.S.C. 5. 18 to conspire either persons more two If or by state au- was arrested Although McClain 2. the United against any offense commit States, § 16-4-1 of O.C.G.A. for violation thorities States, or the United or to defraud 1998, 31, it August (Criminal on Attempt) for any or manner any agency thereof crimes the arrested for appears that he was per- of such or more and one any purpose, a basis of on the case instant in the issue object of the any act to effect sons do May 1999. warrant federal be fined under shall conspiracy, each indictment, checks than five According to more not imprisoned 3. or title on or were cashed "Taylor Baines” the name years, or both. 28, offense, checks however, of those If, Sixteen the commission July 1998. about $351.87; was for a conspiracy, is one object amount in the were of which on were drawn for such punishment only, of the checks All 17 $551.87. misdemeanor Company at Body Bird exceed the maximum of Blue not conspiracy shall account were Garrett Tucker for such misdemean- provided Bank. punishment Citizens § 16-9-1 O.C.G.A. charged with violation or. degree); Doe was trans- (Forgery in first provides: § 1344 6. 18 U.S.C. While center. detention juvenile a ported to executes, attempts knowingly or Whoever record whether apparent from it is not execute, artifice— or a scheme crime, any charged authorities state institution; or (1) defraud financial charges were ever federal that no it is clear funds, moneys, (2) any of the obtain Tuck- issued for warrant A federal filed. securities, assets, proper- credits, other or 1999, 25, Tucker was arrest on er's custody or by, under ty owned war- of that custody the basis on taken into institution, by of, financial control 4, 1999. rant June pretenses, or fraudulent of false means promises; representations, fraud co-organizer of bank King, a $1,000,000 or than more fined not shall be scheme, in Ma- alleged to have been years, or than 30 more imprisoned 28, party to is not July 1998 and con on both. King's case appeal addressed herein. either the indictment charged McClain with an a two-level enhancement pursuant additional conspiracy to commit bank (2000) U.S.S.G. for using a minor fraud.7 On (Doe) October McClain pled to commit a crime.9 Tucker’s sen- guilty the two counts, conspiracy tence included an additional two-level en- the remaining against counts him were pursuant hancement pursuant dismissed to the terms of 2F1.1(b)(7)(B) his plea (2000) possession agreement. 15, 1999, On October Tucker firearm in connection with the offense.10 pled guilty to one count of conspiracy, and McClain and Tucker filed timely no- the remaining charges were dismissed pur- tices appeal under 18 U.S.C. suant to the of his plea agreement. terms § 3742(a)(2), asserting that sen-
The court sentenced McClain to 37 tences were imposed as a result of an months’ imprisonment on January incorrect application of the sentencing and then sentenced Tucker to months’ guidelines. Specifically, they argue both imprisonment on January 18, 2000.8 Both that an enhancement for use of a minor McClain’s and Tucker’s sentences included to commit a crime requires scienter —an *5 7. charged Count One May that from 1998 ing hearing 7, was continued January until 1998, through August McClain, King, 1999, however, and agreed because Tucker to tes- conspired Tucker to commit by bank fraud tify government trial, for the King's which Bank, defrauding Bank, Colonial Citizens Na- 8, was scheduled for December 1999 and was tionsBank, Bank, SunTrust and Wachovia expected days. to last 2-3 for return his Georgia Bank of money to obtain in violation testimony, expected Tucker to receive a down- 2, §§ of 18 U.S.C. 1344 and all in of violation departure ward in his pursuant sentence to § 18 U.S.C. 371. (2000). § U.S.S.G. 5K1.1 While it is unclear from the record whether through actually Counts Two Tucker testi- charged Seven that trial, King's fied at beginning May ultimately in Government 1998 continuing and informed the 1998, sentencing through court August that Tucker King and McClain aid- provided not had enough ed and abetted each other "substantial assis- in a scheme to tance” to a merit section defraud SunTrust 5K1.1 Bank and reduction. Wachovia Bank sentencing Tucker's hearing Georgia along of was money to held obtain in violation 18of 7, 1999, with January McClain's on §§ U.S.C. 1344 but 2. was and again (until once 18) continued Eight January through Counts Ten when charged that be- a question an ginning outstanding about warrant for continuing through 1998 1998, Tucker’s during arose August arrest January 7 King McClain and aided and hearing. abetted each other in a scheme to defraud Bank, NationsBank, Colonial and SunTrust § Bank 9. to obtain money Using 3B1.4. a in violation of Minor To 18 Commit §§ U.S.C. 1344 Crime 2. through Counts Eleven charged Fourteen If the used attempted defendant or to use a 20, that on or about through June July person less eighteen years than age of 2, 1998, McClain, King, and Tucker aided and commit the offense or avoiding assist in de- abetted each other in a scheme defraud of, for, apprehension offense, tection Bank, NationsBank, Colonial and SunTrust by increase 2 levels. Bank to obtain money in violation of 18 §§ U.S.C. 1344 and 2. Deceit; 10. U.S.S.G. 2F1.1. Fraud and For- charged Count Fifteen that from October gery; Involving Altered or Offenses Counterfeit Bearer Ob- 15, through October McClain Instruments Other than Counterfeit conspired to commit bank fraud defraud- ligations the United States ing NationsBank money to obtain in violation §§ of 18 U.S.C. 1344 and inall violation of (b)(7) (B) If the posses- offense ... involved U.S.C. 371. dangerous sion of a weapon (including a 8. initially Tucker was firearm) to be scheduled offense, sen- in connection with the tenced on December 1999. His sentenc- 2by increase levels. a minor the use have sonably foreseen someone use intent enterprise. the criminal of- in furtherance a minor to be knows factu- the court’s neither error that for clear stipulate review We parties The fense. mi- Doe knew was use that McClain nor al determinations Tucker he that argues reasonably further was check-cashing scheme nor.11 enhance- the two-level McClain, not receive that should as to foreseeable involve directly he did because ment driven vehicle in the found firearm While offense. fraud bank in the with connection “in possessed was Tucker working to- were Tucker the offense.” for young women recruit gether it that agree scheme, parties B. assis- Doe’s actually solicited
Tucker
enabling U.S.S.6.
In the statute
he
argues
Tucker
Finally,
tance.
following
adopted the
3B1.4, Congress
en-
two-level
have received
should
language:
a firearm
possession
hancement
OF
SOLICITATION
SEC.
offense,
because
with the
connection
CRIME
COMMIT
TO
MINOR
unconnected
his vehicle
firearm
Commis-
Sentencing
(a)
Directive
each
consider
We
offense.
fraud
sion-
in turn.12
arguments
these
Sentencing Com-
(1)
II.
guidelines
promulgate
shall
mission
provide
guidelines
existing
amend
A.
con-
been
... who has
a defendant
*6
interpreta
court’s
district
“The
ap-
an
receive
offense shall
of an
victed
subject
guidelines
sentencing
tion
if the
enhancement
sentence
propriate
its
while
appeal,
on
review
de novo
the com-
minor in
involved a
defendant
unless
accepted
be
findings must
factual
of the offense.
mission
Pom
v.
States
United
clearly erroneous.”
that
provide
(2)
shall
Commission
Cir.1994);
(11th
see
351, 353
17 F.3d
pey,
ap-
... shall
enhancement
guideline
the
Anderson,
F.3d
200
v.
States
also United
which
relation
any
offense
ply for
Cir.2000);
(11th
18 U.S.C.
1344, 1347
solicited, procured,
has
Thus,
de novo
3742(e).
review
we
counseled,
encouraged,
recruited,
a sec
that
determinations
court’s
district
commanded,
directed,
intimidat-
trained,
require
not
does
enhancement
3B1.4
tion
attempted
or
ed,
used
or otherwise
may be
3B1.4
that section
scienter
age
years
than 18
less
any person
use
rea-
who could
co-conspirator
ato
applied
(2000).
2348,
466,
435
L.Ed.2d
147
S.Ct.
Garrett,
traveling
was
According
11.
waited
that McClain
PretermiUing the fact
day of
on
and Doe
with Tucker
the car
issue, his
age
raise this
arrest,
argument
her true
disclosed
oral
Doe first
until
their
by the
being
over
con-
pulled
was
merit.
argument
is without
the vehicle
when
had
police that if Tucker
element
told
is not an
police. Garrett
use
that
cedes
minor,
would
he never
was a
convicted.
known
which McClain
the offense
check-cashing
her
for the
recruited
have
Rather,
conduct
of relevant
instance
is an
it
however,
unclear,
whether
isIt
scheme.
under
sentence
McClain’s
to determine
used
by Tucker
initially uttered
statement
in this
The law
Sentencing Guidelines.
Garrett,
by
Garrett
merely volunteered
or
does
“Apprendi
clearly
states
circuit
behalf.
Tucker's
the Guide-
under
conduct
to relevant
apply
F.3d
Gallego, 247
United
lines.”
that his sen-
additionally contends
12.
Cir.2001).
(11th
Jersey,
U.S.
Apprendi v. New
tence violates
with the intent
(2)
the minor would
hire, use,
employ,
persuade, induce,
commit Federal offense.
entice,
coerce,
a person
eigh-
under
years
teen
of age to assist in
Violent
avoiding
Crime Control and Law Enforce-
detection or apprehension for
any
ment Act
[listed
103-322,
Pub.L. No.
federal drug
by
140008(a),
any
offense]
...
law
108 Stat.
2033. In re-
enforcement official^]
sponse to this congressional directive, the
Sentencing Commission
drafted Amend-
Chin,
States v.
sal”) (quotation omitted). Thus, the court 1984, Congress "In constitutional, created the Commis- guidelines sentencing promul- sion, charging it with 'establishing] gated by sentenc- the Commission now bind the feder- ing policies practices for the Federal Butler, al courts.” United v. States 207 F.3d justice system.' criminal 839, (6th 28 Cir.2000) U.S.C. 991 (alteration 844 origi- (1985). delegation Since power nal). 1286 impo- practically sentencing enhancement not be aware need a defendant
held
leg-
thereby frustrate
tent, and would
sec-
under
to be convicted
age
minor’s
enactment.
behind its
intent
861(a).
islative
tion
of section
Further,
interpretation
why section
our
no reason
seeWe
other-
penalize
should
Guidelines
threaten
Sentencing
does not
3B1.4
3B1.4 of
conduct,
have
protection
for defendants
give less
innocent
interpreted
wise
be
stat
others
federal
similarly
conspire
worded
or
than
right
no
solicit
minors
con
Congress’s
showing of
utes,
ages)
a
(no
absent
matter what
in the Sentenc
“[L]anguage
(holding
Chin,
trary intent.
F.2d
1280
981
crime. Cf.
plain and
its
given
be
is to
a
ing Guidelines
use of
criminalizing the
that a statute
Further,
where
meaning.
ordinary
a federal
for
apprehension
avoid
a
as
indication
no
provide
guidelines
defendant’s
offense,
of the
regardless
drug
looks to
the Court
application[,]
particular
does
age,
the minor’s
knowledge of
Sentenc
of the
purpose
language and
conduct
innocent
otherwise
criminalize
Pompey,
instruction.”
ing Guidelines
be convict-
may only
the defendant
where
omitted).
(citations
The
at 354
17 F.3d
use another
intent to
showing of
a
upon
ed
of section
design
legislative
unambiguous
narcotics
of federal
a violation
to conceal
from
a class
as
minors
protect
tois
3B1.4
Cook,
F.3d
v.
laws);
States
United
recruited, coun
“solicited, procured,
being
Cir.1996)
a statute
(4th
(holding that
directed,
trained,
com
seled, encouraged,
a controlled sub-
receipt of
criminalizing
intimidated,
used” to
otherwise
manded,
of the
minor, regardless
a
from
stance
Control
Crime
Violent
crime.
commit
age,
the minor’s
knowledge of
defendant’s
140008(a);
of 1994
Act
Law Enforcement
innocent
otherwise
criminalize
does
(2000).
3B1.4,
n.l
cmt.
also U.S.S.G.
see
may only be
where
conduct
categori
section
of the
language
plain
re-
intent to
showing of
upon
convicted
upon
penalty
an enhanced
imposes
cally
drugs). But
illegal
ceive
cf.
to use”
attempted
“used or
who
defendants
Video, Inc.,
71-
513 U.S.
X-Citement
eighteen to
age of
under
person
468-69,
130 L.Ed.2d
S.Ct.
of,
appre
(or
detection
avoid
commit
criminalizing
(1994)
statute
(holding
for)
quali
no
find
offense. We
an
hension
depictions
of visual
transport
knowing
reserving
section
language
fying
con-
sexually explicit
engaging
of minors
knew
for defendants
the enhancement
minor’s
knowledge
requires
duct
criminal
into their
drawn
person
that the
liability application
strict
because
age,
a minor.
activity
legal
otherwise
proscribe
would
the statute
matter,
requiring
policy
As a
impinge
*8
magazines)
(shipping
conduct
sentenci
prove scienter
government
rights).
First Amendment
upon
encourage defendants
simply
ng14 would
application
Ideally, broad
to information
and ears
eyes
to close
criminals
adult
will deter
3B1.4
section
crimi
in their
they employ
persons
about
even those
committing crimes
from
knowledge
defendant’s
nal schemes.
the
over
who,
they are
although
persons
nearly impossi
be
age would
a minor’s
seventeen,
minors. We
to be
appear
age of
undoubtedly be the
would
prove,
ble
this
promoting
that a construction
believe
ap
Such
“mini-trials.”
lengthy
subject of
effect,
than one
rather
deterrent
broad
render
would
of section
plication
evi-
by
preponderance
its existence
penalty
presence or absence
''[T]he
14.
Stone,
F.3d
139
by
dence.”
determined
sentencing
is to
factor
be
Cir.1998).
(11th
n. 12
only
judge,
need
find
sentencing
who
district
encouraging
blindness,
willful
minor,
effectuates
with a
every single one of the
Congress’s intent in enacting the sentenc-
adult defendants would be subject to the
ing
Therefore,
provision.
reject
we
appel-
enhancement,
two-level
regardless of the
argument
lants’
that scienter
required
is
roles they played in involving the minor
for application
of U.S.S.G.
3B1.4 and
in the crime. Such a result would osten-
hold that the two-level enhancement was
sibly render
the characterization of
properly applied to Tucker.15
§ 3B1.4 as a “role in the
adjust-
offense”
ment a misnomer.
C.
Id. at 848.
We now turn to the question
Pretermitting the fact that Butler is not
whether section 3B1.4 applies
jointly
on all fours with
case,16
the instant
we
undertaken criminal activity of co-eonspir-
respectfully disagree with the Sixth Cir-
ators, such that it was properly applied to
cuit’s position on “striet-liability” applica-
McClain. McClain contends
that we
tion of section 3B1.4. The introductory
Butler,
should look to United States v.
commentary to Chapter Three,
B,
Part
(6th Cir.2000),
F.3d
for our answer.
states that “[t]he determination of a defen-
Butler,
In
the Sixth Circuit held that sec
dant’s
in
role
the offense is to be made on
tion 3B1.4 is inapplicable unless the defen
the basis of all conduct within
scope
dant took
steps
affirmative
to involve a
(Relevant
§ 1B1.3
Conduct), ie., all con-
crime,
minor in a
rather than simply oper
duct
included under
lB1.3(a)(l)-(4),
as an
ating
equal partner with the
.and
minor.
not solely on the basis of elements and
Butler,
acts
recruitment reasons, judgment foregoing For the were defendants] [the “because court the district was not folks” young all kinds recruiting AFFIRMED. correctly erroneous, court and the clearly enhancement the two-level applied concurring BARKETT, Judge, Circuit sentence. McClain’s specially: D. only write opinion. I join the Court’s I a case case the need emphasize question turn to Finally, we I also 3B1.4. section applying analysis finding court’s district whether *10 believe Butler, that United v. 207 therance the jointly undertaken criminal (6th Cir.2000) F.3d 839 supports activity. our hold
ing today. Butler requires “affirmative
use” of a minor. See id. 848. In this
case, it is clear that a member of the
conspiracy “affirmatively used” a minor.
Butler does not answer the ques further UNITED America, STATES of
tion of whether other members of the con Plaintiff-Appellee, spiracy can responsible be held for this In use. answering question, this the ma
jority opinion that “[i]f concludes use of a ODOM, Alan Brandy Boone, Nicole furtherance of the jointly under Defendants-Appellants. taken criminal activity foreseeable No. 98-6241. defendants, certain those defendants United States Court of Appeals, will not receive the two-level enhance Eleventh Circuit. Thus, ment.” I do not see much distinc tion between this approach and that
Butler as it may relate to co-conspirators.
Section 3B1.4 was properly applied to this case since the record indi
cated he directly, if not personally,
involved a co-conspirator’s solicitation,
recruitment, and use of a minor in imple
menting his criminal scheme. McClain or
ganized the bank fraud and played a lead
ership role in the conspiracy, including
supervising practice Tucker’s of recruiting
specifically young females to negotiate
counterfeit checks. particular in
stance, supervised Tucker’s re
cruitment of a minor to cash the fraudu and,
lent checks day arrest, of his
McClain had Tucker, traveled with
minor, and three young additional females Macon, Georgia, to oversee the commis
sion of the crime. I believe sup Butler
ports our holding, therefore, that where
evidence suggests the defendant did not
personally involve a minor in a conspiracy crime, proper application of sec
tion 3B1.4 is dependent upon whether the played nonetheless a broader
affirmative role the minor’s solicitation
since the use of a minor was a reasonably
foreseeable act co-conspirators in fur-