U.S. v. Bah, 05-1836.

• Decision Date: 03 March 2006
• Docket Number: No. 05-1836.,05-1836.
• Citation: 439 F.3d 423
• Parties: UNITED STATES of America, Appellee, v. Unis BAH, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

439 F.3d 423

UNITED STATES of America, Appellee, v. Unis BAH, Appellant.

No. 05-1836.

United States Court of Appeals, Eighth Circuit.

Submitted: December 13, 2005.

Filed: March 3, 2006.

COPYRIGHT MATERIAL OMITTED

David E. Mullin, argued, Cedar Rapids, Iowa, for appellant.

Robert Lee Teig, Asst. U.S. Attorney, Cedar Rapids, Iowa, for appellee.

Before BYE, BEAM and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Appellant Unis Bah pled guilty to one count of making a false, fraudulent and fictitious material statement and representation within the jurisdiction of the Department of Homeland Security, a department and agency of the United States, in violation of 18 U.S.C. § 1001. The district court determined an advisory United States Sentencing Guidelines range of 10 to 16 months and imposed a sentence of 30 months' imprisonment. Bah appeals his sentence. For the reasons discussed below, we remand to the district court for resentencing.

I. BACKGROUND

Bah was charged in a 5-count indictment with crimes related to a scheme to obtain visas from foreign consulates and embassies in the United States by using false immigration documents. Bah and his co-defendant, Abdulaziz Bah ("Abdulaziz"), were arrested by United States Immigration and Customs Enforcement ("ICE") agents after driving from Maryland to a Cedar Rapids, Iowa, post office to pick up a package. The package contained immigration documents that had been submitted to the Irish Consulate in Chicago, Illinois, in support of three applications for Irish visitor visas. The documents included successively numbered, purportedly valid passports from the Republic of Guinea and visa applications supported by fraudulent I-551 cards (Alien Registration Cards). Bah pled guilty to Count 4 of the indictment, charging him with making a material false statement in violation of § 1001 when he told an ICE agent that he did not know the purpose of the trip to Cedar Rapids. The remaining counts were dismissed at sentencing.

The Presentence Investigation Report ("PSR") indicated that the proper offense guideline for a violation of § 1001 was U.S.S.G. § 2B1.1 (the guideline for sentencing for fraud and deceit). However, the PSR also recommended that the district court apply the cross-reference available in subsection (c)(3) of § 2B1.1, which provides that "[i]f . . . the defendant was convicted under a statute proscribing false, fictitious, or fraudulent statements or representations generally . . . and . . . the conduct set forth in the count of conviction establishes an offense specifically covered by another guideline in Chapter Two (Offense Conduct), apply that other guideline." The PSR advised that the cross-reference is available if "the defendant was convicted under [certain] statute[s]," including § 1001, but neglected to identify the cross-reference's second requirement: that the conduct that establishes the offense covered by another guideline must be set forth in the count of conviction.

After hearing testimony from an ICE agent regarding Bah's involvement in the fraudulent immigration document scheme, the district court sentenced Bah pursuant to the more punitive guideline of § 2L2.1 (the sentencing guideline for trafficking in immigration documents or making a false statement with respect to the immigration status of another). Without specifically identifying the § 2B1.1 cross-reference, the district court utilized § 2L2.1 and calculated a base offense level of 11 and a criminal history category of I. The district court then made a 3-level upward adjustment pursuant to § 2L2.1(b)(2) (for an offense involving 6 to 24 documents) and a 2-level downward adjustment for Bah's acceptance of responsibility pursuant to § 3E1.1(a), but denied Bah's request for a minimal-participant downward adjustment pursuant to § 3B1.2(a). As a result, the district court determined a total offense level of 12 and a guidelines range of 10 to 16 months. However, the district court sentenced Bah to 30 months' imprisonment after considering the facts in light of the 18 U.S.C. § 3553(a) factors and determining that an upward variance was appropriate.

On appeal, Bah argues that the district court's application of the cross-reference was erroneous because the language of § 2B1.1(c)(3) specifically limits the evidence that the court may consider for purposes of § 2B1.1(c)(3) to "the conduct set forth in the count of conviction" and that-regardless of other evidence or stipulations-the count of conviction did not establish that Bah committed a crime covered under another guideline. In addition, Bah argues that he should have received a reduction in his total offense level pursuant to § 3B1.2(a) as a minimal participant and that his sentence is unreasonable under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).¹

II. DISCUSSION

The first step in reviewing Bah's sentence is to determine whether the district court's interpretation and application of the guidelines was correct. United States v. Mashek, 406 F.3d 1012, 1016-17 (8th Cir.2005). We review the issue of whether the district court erred in applying the guidelines de novo. United States v. Mark, 425 F.3d 505, 506 (8th Cir.2005). "If the sentence was imposed as the result of an incorrect application of the guidelines, we will remand for resentencing as required by 18 U.S.C. § 3742(f)(1) without reaching the reasonableness of the resulting sentence in light of § 3553(a)." Mashek, 406 F.3d at 1017.

In this case, we must determine whether the district court was correct in applying § 2L2.1 to Bah. Although the district court heard evidence and argument at sentencing on the applicability of the § 2B1.1(c)(3) cross-reference, it did not state on the record or in its written order the basis for its decision to sentence under § 2L2.1. We note that the § 2B1.1(c)(3) cross-reference is not the only mechanism available under the guidelines upon which the district court could have relied when sentencing Bah under § 2L2.1. The district court also could have relied on the cross-reference under § 1B1.2(a). Therefore, we will consider whether either cross-reference allows Bah to be sentenced under § 2L2.1.

A. The § 2B1.1(c)(3) Cross-Reference

Bah argues that if the district court applied the § 2B1.1(c)(3) cross-reference to sentence him under § 2L2.1, the court erred because there was insufficient evidence to establish that Bah committed an offense punishable under § 2L2.1. If the district court sentenced Bah pursuant to § 2L2.1, the court must have determined that the evidence established that Bah had violated either 18 U.S.C. § 1544 (misuse of a passport) or 18 U.S.C. § 1546 (fraud and misuse of visas, permits and other documents), or that he had conspired to commit a violation of § 1544 or § 1546 in violation of 18 U.S.C. § 371.² However, Bah maintains that the district court could not have properly found that Bah committed a violation of § 371, § 1544, or § 1546 because the language of § 2B1.1(c)(3) specifically limits the district court to considering only the conduct set forth in the count of conviction when determining whether to apply the cross-reference.

"When construing the Guidelines, we look first to the plain language, and where that is unambiguous we need look no further." United States v. Ellefson, 419 F.3d 859, 865 (8th Cir.2005) (quoting United States v. Ashley, 342 F.3d 850, 852 (8th Cir.2003)). Section 2B1.1(c)(3) provides that "[i]f . . . the defendant was convicted under a statute proscribing false, fictitious, or fraudulent statements or representations generally . . . and . . . the conduct set forth in the count of conviction establishes an offense specifically covered by another guideline in Chapter Two (Offense Conduct), apply that other guideline." (emphasis added). A plain reading of this unambiguous language establishes that the district court may look only to "the conduct set forth in the count of conviction" when determining whether the cross-reference applies. As such, this cross-reference is applicable "only if the conduct alleged in the count of the indictment of which the defendant is convicted establishes the elements of another offense." United States v. Genao, 343 F.3d 578, 583 (2d Cir.2003).³

In this case, the count of conviction provides that

On or about June 17, 2004, in the Northern District of Iowa, in a matter within the jurisdiction of Department of Homeland Security, United States Immigration and Customs Enforcement, a department and agency of the United States, the Defendant UNIS BAH, did knowingly and willfully make a false, fraudulent, and fictitious material statement and representation; that is, defendant told an Immigration and Customs Enforcement agent that he did not know the purpose of his and Abdulaziz Bah's overnight trip to Iowa from Maryland, when in truth and in fact, defendant knew the purpose of the trip was to pick up a package at the Post Office in Cedar Rapids, Iowa.

This in violation of title 18, United States Code, Section 1001.

Nothing in the count of conviction establishes that Bah's conduct involved a visa, passport or other document related to naturalization, citizenship or legal resident status, a material element necessary to prove a violation of either § 1544 or § 1546. Nor does the count of conviction establish requisite elements of conspiracy, such as the existence of a conspiracy or the intent to join a conspiracy under § 371. United States v. Holloway, 128 F.3d 1254, 1257 (8th Cir.1997) (citing United States v. Lucht, 18 F.3d 541, 552 (8th Cir.1994), for the proposition that to establish a defendant's participation in a conspiracy, the evidence must show that there was an agreement to achieve some illegal purpose, that the defendant knew of the agreement and that the defendant knowingly became a party to the conspiracy). Thus, while the ICE agent's testimony may have established Bah's violation of a more serious offense than a...