United States v. Solomon

Decision Date15 September 2014
Docket NumberNo. 13–3108.,13–3108.
Citation766 F.3d 360
PartiesUNITED STATES of America v. Donald Abraham SOLOMON, Appellant.
CourtU.S. Court of Appeals — Third Circuit

OPINION TEXT STARTS HERE

Robert L. Eberhardt, [Argued], Rebecca R. Haywood, Pittsburgh, PA, Attorneys for PlaintiffAppellee.

Elisa A. Long, [Argued], Office of Federal Public Defender, Pittsburgh, PA, Attorney for DefendantAppellant.

Before: HARDIMAN, SCIRICA and ROTH, Circuit Judges.

OPINION

HARDIMAN, Circuit Judge.

Donald Solomon, the former police chief of a hamlet in Southwestern Pennsylvania, was sentenced to more than eleven years in prison after pleading guilty to corruption charges. In this appeal, Solomon challenges the District Court's application of two provisions of the United States Sentencing Guidelines. The first, § 2C1.1(c)(1), is a cross-reference that directs the sentencing judge to apply the Guidelines range for another crime if, for instance, the defendant accepted a bribe “for the purpose of facilitating [that] criminal offense.” The second, § 3B1.3, is a two-level enhancement for abuse of a position of trust. Both challenges present questions of first impression.

I
A

In 2009, Solomon became the police chief of the Borough of East Washington, Pennsylvania, after a decade as a part-time officer. As chief, he was paid $36,100 a year and was unable to moonlight because he had to be available around the clock. At about the same time, Solomon and his wife divorced after more than fifteen years of marriage. Without going into the sordid details of Solomon's personal life, it suffices to note that his behavior after his divorce attracted the attention of federal authorities and caused them to engage an unidentified confidential informant (CI)—described by Solomon as “an erstwhile friend”—to probe Solomon's criminal tendencies. Solomon Br. 4.

On June 30 and July 1, 2011, the CI met with Solomon to discuss providing security services for an unidentified third person. Solomon agreed to run a criminal history check on the third person, and also asked the CI if the person wanted to Solomon to provide security, as he had “nothing to do on the weekends.” The CI said that Solomon might be able to work with him on the job, which required following a vehicle and ensuring that nothing happened to it. The CI told Solomon he would be paid at least “a grand,” to which Solomon replied, [t]here has got to be no paper trail ... under the table.” When Solomon called to inquire about the status of the criminal history check, he was told the person seeking security had a lengthy criminal record; upon reviewing the record with the CI at the police station later that day, Solomon observed that the security job “could be drug related.” In reference to the third person, Solomon responded: “Tell him I'm the best cop money can buy.”

Solomon met with the CI again on July 8, 2011, and discussed providing security for a 4–kilogram cocaine deal for which they would each be paid $500 per kilogram. On July 27, 2011, Solomon and the CI met with the third person, “Joseph,” who was really an undercover FBI agent posing as a drug trafficker. At the meeting, Solomon agreed to provide protection for a multi-kilogram cocaine shipment, and also agreed to wear his police uniform and sit in his police car while doing so. Joseph, in turn, agreed to pay Solomon and the CI $500 per kilogram for their assistance. Solomon also asked Joseph for advance notice so he could divert other officers away from the drug deal. On August 17, 2011, the CI gave Solomon $1,000 cash from Joseph as a “good faith” payment in advance of the shipment.

On August 23, 2011, the staged drug deal took place in a church parking lot in East Washington. Solomon had a shotgun, an AR–15 rifle, and a 9mm handgun with him as he sat inside his marked police cruiser with the CI. When the transaction was completed, Joseph paid Solomon $1,500, and Solomon then gave the CI $700. Solomon agreed to provide security for future shipments, and exchanged phone numbers with Joseph. He also said he would try to obtain two law enforcement-restricted Tasers for Joseph, for $1,000 each; Joseph made clear that he planned to use the Tasers to collect drug debts.

The next day, Solomon confirmed in a text message to Joseph that he would buy the Tasers for a total of $1,700; the CI paid Solomon in cash a week later. On September 9, 2011, Solomon and the CI went to a law enforcement equipment store, where Solomon used his official position to purchase two Tasers for $1,569.90. Afterward, Solomon sent a text to Joseph, telling him he had the two Tasers.

On September 14, 2011, Solomon spoke to Joseph on the phone and agreed to provide protection for a 10–kilogram cocaine shipment on September 26 or 27 while wearing his police uniform. Joseph confirmed via text that the transaction would occur on the 26th, and Solomon agreed to be there. On the 26th, Solomon gave Joseph the Tasers, and instructions on how to use them, in a local commuter parking lot. Soon after, Joseph and a fellow undercover agent engaged in another fake drug deal, while Solomon looked on from his police car. Joseph then gave Solomon $5,000 for protecting that transaction, as well as $300 as a tip for acquiring the Tasers. In total, Solomon was paid $8,800 in connection with the drug transactions and Tasers.

On October 26, 2011, Solomon was indicted on three counts of extortion under color of official right, in violation of the Hobbs Act, 18 U.S.C. § 1951. On January 4, 2013, he entered an open plea of guilty.

B

The United States Probation Office prepared a Presentence Investigation Report (PSR), calculating Solomon's Sentencing Guidelines range under § 2C1.1, which applies to extortion under color of official right. After deducting three levels for acceptance of responsibility, Solomon's offense level was 19. He had no prior criminal history, so his initial Guidelines range was 30 to 37 months' imprisonment. Critical to this case and unfortunately for Solomon, § 2C1.1 includes a cross-reference, § 2C1.1(c)(1), which states:

If 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 that other offense, if the resulting offense level is greater than that determined above.

Because Solomon believed he was providing protection for two cocaine deals and obtained restricted Tasers with the understanding they would be used to collect drug debts, the Probation Office determined that Solomon had accepted the payments “for the purpose of facilitating” cocaine trafficking.

Pursuant to the cross-reference, the Probation Office calculated Solomon's offense level under the Guideline for conspiracy to commit cocaine trafficking, § 2D1.1, to determine whether it was greater than Solomon's offense level under the Guideline applicable to his Hobbs Act crime. Because of the large quantity of (fake) cocaine involved (at least 5 kilograms but less than 15 kilograms), the base offense level was 32, plus a 2–level enhancement for possession of a dangerous weapon on account of the guns Solomon had with him while he was in his police car “protecting” the drug transaction. After applying a 3–level reduction for acceptance of responsibility, Solomon's offense level under the drug trafficking Guideline was 31, resulting in a range of 108 to 135 months, far higher than under the Hobbs Act.

Solomon argued that the cross-reference should not apply because he did not commit and could not have committed “another criminal offense,” because everyone else involved in the reverse sting that ensnared him was working for the government. The District Court disagreed.

After the issuance of the original PSR, the Government also asked the District Court to apply an additional 2–level enhancement for abuse of a position of trust pursuant to § 3B1.3, which would further increase Solomon's Guidelines range to 135 to 168 months. Solomon objected on the ground that Application Note 6 of § 2C1.1—the section under which Solomon's sentence originated—expressly prohibits the application of the abuse of a position of trust enhancement. The Government countered that Application Note 6 did not apply because Solomon was being sentenced under § 2D1.1 (drug trafficking), not under § 2C1.1 (Hobbs Act). The District Court agreed with the Government and sentenced Solomon to 135 months, the bottom of his final Guidelines range. This timely appeal followed.

II 1

On appeal, Solomon challenges the District Court's application of both the cocainetrafficking Guideline under the § 2C1.1(c)(1) cross-reference and the abuse of trust enhancement under § 3B1.3. We exercise plenary review over a district court's interpretation of the Sentencing Guidelines. United States v. Grier, 475 F.3d 556, 570 (3d Cir.2007) (en banc).

A

Solomon first claims that the District Court erred by sentencing him under the cocaine trafficking Guideline pursuant to the § 2C1.1(c)(1) cross-reference because he “could not be properly charged with or convicted of ‘another criminal offense.’ Solomon Br. 14. Specifically, he contends that he “could not properly be charged with intent to distribute or distribution of a controlled substance, because that offense requires that the defendant distribute actual drugs or possess with the intent to distribute actual drugs.” Id. The drug deals in Solomon's case were staged by the Government, using fake drugs. Solomon also claims the cross-reference should not apply because he could not properly be charged with a drug distribution conspiracy since “all of the other participants in the purported conspiracy were government agents.” Id. Thus, he argues, there was no “other offense” and no conspiracy.

Solomon's arguments on this issue fail because they run contrary to the clear language of the Guidelines. He pleaded guilty to three counts of extortion under color of official right, a crime covered by Part C of the...

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4 cases
  • United States v. Schneider
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 9 Septiembre 2015
    ...cross-reference. “We exercise plenary review over a district court's interpretation of the Sentencing Guidelines.” United States v. Solomon, 766 F.3d 360, 364 (3d Cir.2014). As the first step in calculating the Guidelines range, a court must “[d]etermine the offense guideline section in Cha......
  • United States v. Schneider
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 9 Septiembre 2015
    ...cross-reference. "We exercise plenary review over a district court's interpretation of the Sentencing Guidelines." United States v. Solomon, 766 F.3d 360, 364 (3d Cir. 2014). As the first step in calculating the Guidelines range, a court must "[d]etermine the offense guideline section in Ch......
  • United States v. Stanford
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 19 Febrero 2018
    ...concluded that the "the Guidelines [did not] require ... that [the defendant] actually facilitated another criminal offense." 766 F.3d 360, 364–65 (3d Cir. 2014) (emphasis in original). The "key word" to interpreting the cross reference, the panel explained, was " ‘purpose’—i.e. , the reaso......
  • United States v. Mays, CRIMINAL ACTION NO. 15-158-1
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • 27 Mayo 2016
    ...unilateral control over the amount of the controlled substances in the absence of an agreed-upon amount. United States v. Solomon , 766 F.3d 360, 366 (3d Cir.2014). The Court is also guided by the rule of lenity. See United States v. Flemming , 617 F.3d 252 (3d Cir.2010) ("[The rule of leni......

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