U.S. v. Blackmon

• Decision Date: 23 February 2009
• Docket Number: No. 07-4237.,07-4237.
• Citation: 557 F.3d 113
• Parties: UNITED STATES of America v. Eric BLACKMON, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

557 F.3d 113

UNITED STATES of America v. Eric BLACKMON, Appellant.

No. 07-4237.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) December 2, 2008.

Opinion filed: February 23, 2009.

Robert Epstein, Assistant Federal Defender, David L. McColgin, Assistant Appellate Attorney, Maureen Kearney Rowley, Chief Federal Defender, Christy Unger, Esquire, Federal Community Defender Office for the Eastern District of Philadelphia, Philadelphia, PA, for Appellant.

Colm F. Connolly, United States Attorney, Ilana H. Eisenstein, Assistant United States Office of United States Attorney, Wilmington, DE, for Appellee.

Before: AMBRO, and GREENBERG, Circuit Judges, and O'NEILL,^* District Judge.

OPINION OF THE COURT

AMBRO, Circuit Judge.

Eric Blackmon appeals his sentence of 235 months' imprisonment for conspiracy to distribute cocaine and money laundering.¹ He argues that his sentence is procedurally unreasonable because the District Court miscalculated the proper federal Sentencing Guidelines range under the money laundering Guideline, U.S. Sentencing Guidelines Manual § 2S1.1 ("Laundering of Monetary Instruments") (hereinafter "U.S.S.G."). He contends that the District Court erred in two ways: (1) by classifying him as a direct money launderer under Guidelines § 2S1.1(a)(1) rather than as a third-party money launderer under § 2S1.1(a)(2); and (2) by incorporating his involvement in the cocaine conspiracy as relevant conduct for purposes of calculating his Guidelines base offense level under § 2S1.1(a)(1). For the following reasons, we affirm the District Court's sentence. We do so with a warning that what follows is abstruse.

I. BACKGROUND

A. The Cocaine Conspiracy

Blackmon was involved in a conspiracy to ship cocaine from California to Philadelphia dating back to September 2005. He shipped cocaine from California to Shawn Williams in Philadelphia, and Williams would ship packages of cash back to Blackmon. All shipments were made using Federal Express. In December 2005, federal law enforcement agents intercepted a package containing $74,296—representing the value of approximately five kilograms of cocaine—sent by Williams to Blackmon. The package had both their names and addresses on the mailing label. California authorities went to Blackmon's address and spoke to him, but he denied any knowledge of the intercepted package.

The conspiracy continued, and in January 2006 Bradley Torrence joined. He introduced a more sophisticated method of shipping the cocaine using stolen Federal Express business account numbers. He also paid Federal Express couriers to drop off the packages at agreed locations in the Philadelphia area and mark them as "delivered" in the company system.

Federal agents soon identified a pattern of Federal Express airbills with stolen business account numbers and fictitious addresses originating in California and destined for the same Philadelphia zip code. In March 2006, they followed two of these packages sent from San Francisco to a Philadelphia parking garage where they observed a Federal Express courier drive into the garage. Shortly thereafter, Williams and the courier drove out of the garage. The agents stopped them and recovered the two packages from Williams's car, each of which contained three kilograms of cocaine.

Williams, Torrence, and the courier—all located in Pennsylvania—were arrested, indicted, and agreed to cooperate with the Government to confirm Blackmon as the California source of the cocaine. In August 2006, Williams recorded phone calls with Blackmon arranging the shipment of one kilogram of cocaine for $15,000. Law enforcement observed Blackmon at the address where Federal Express delivered the $15,000, and a few days later the cocaine arrived via Federal Express in Philadelphia. Thereafter, Blackmon was arrested. He admitted that he was the person speaking to Williams on the recorded phone calls.

B. Guilty Plea and Sentencing

A federal grand jury indicted Blackmon in 2007 for various cocaine distribution offenses and money laundering. He entered a guilty plea on two of the counts: (1) conspiracy to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846 (Count One); and (2) money laundering related to the August 2006 sting transaction, in violation of 18 U.S.C. § 1956(a)(3)(A) (Count Four). At sentencing, the District Court thoroughly considered and adopted the Guidelines range calculations in the Pre-Sentence Investigation Report prepared by the Probation Office (the "PSR").

The PSR determined that the two counts involved substantially the same harms, so that, in accord with the grouping rules for closely related multiple offenses under Guidelines § 3D1.2, the counts should be considered together.² See U.S.S.G. §§ 3D1.1(a) (instructing the sentencing judge to group certain counts when "a defendant has been convicted of more than one count"), 3D1.2 (stating, e.g., that counts "connected by a common criminal objective or constituting part of a common scheme or plan[,]" or "[w]hen the offense level is determined largely on the basis of the . . . quantity of a substance involved," should be grouped, including offenses under the money laundering Guideline, § 2S1.1). The offense level applicable to the group is the offense Guideline that produces the highest offense level. Id. § 3D1.3. The PSR determined that Count Four, the money laundering offense corresponding to Guidelines § 2S1.1, produced the higher offense level for purposes of setting Blackmon's Guidelines range.

Next, the PSR calculated the base offense level for money laundering under Guidelines § 2S1.1. The PSR applied subsection (a)(1) of § 2S1.1, which sets the base level by incorporating the "underlying offense from which the laundered funds were derived." Id. § 2S1.1(a)(1). It concluded that the distribution of cocaine resulting from the sting transaction was the "underlying offense," and further incorporated Blackmon's participation in the cocaine conspiracy as "relevant conduct." See id. § 1B1.3 ("Relevant Conduct").³ To calculate the base offense level, it used the drug quantity from the conspiracy (and the single kilogram of cocaine from the sting transaction), which it reported involved 50 to 150 kilograms of cocaine, resulting in a base offense level of 36. See id. § 2D1.1(c)(2) ("Drug Quantity Table").

Finally, the PSR considered any adjustments to the offense level. Guidelines § 2S1.1(b) includes a two-level enhancement for certain listed offenses. Blackmon pled guilty to 18 U.S.C. § 1956, which is a listed offense under this specific enhancement subsection. Id. § 2S1.1(b)(2)(B). Thus his total offense level rose to 38. The PSR deducted three levels for acceptance of responsibility, bringing the final offense level to 35.

Blackmon objected to the PSR's calculations. Specifically, he contested the drug amount, arguing that, among other things, the conspiracy involved between 15 and 50 kilograms of cocaine, resulting in a base offense level of 34. He also objected to the money laundering base offense calculation, asserting that only the $15,000 associated with the sting transaction should be considered, and not the drug amount from the cocaine conspiracy, as relevant conduct.

At the sentencing hearing, the Government supported the PSR finding regarding drug quantity by presenting testimony from a Federal Bureau of Investigation Special Agent and extensive evidence indicating that the cocaine involved in the conspiracy weighed in excess of 150 kilograms. Its evidence included the Federal Express airbills that carried the suspected cocaine packages (weighing approximately 148 kilograms), the seizure of $75,000 and five kilograms of cocaine in December 2005, the seizure of two Federal Express packages from Williams containing six kilograms of cocaine in March 2006, and Blackmon's shipment of one kilogram of cocaine connected to the August 2006 sting transaction. Special Agent Scott Duffey testified to identify the Government's exhibits and explain the related patterns of airbills and different stages of the conspiracy. Williams and Torrence also testified to the scope of the conspiracy and Blackmon's participation.

The District Court overruled Blackmon's objections and determined that the Guidelines range for the two grouped counts was 188 to 235 months' imprisonment. Before deciding on a final sentence, the Court considered the relevant 18 U.S.C. § 3553(a) sentencing factors. Specifically, it found that "magnitude of the offense" was "overwhelming." It also noted Blackmon's past offenses for armed robbery and drugs, for which he had served a stint in prison, but that "[n]one of that seemed to have made an impact on you." After evaluating all the factors, the Court imposed a prison sentence at the top of the Guidelines range—235 months.

II. ANALYSIS

Blackmon challenges the procedural reasonableness of his sentence. He argues that the PSR and District Court improperly calculated the base offense level for the money laundering count.⁴ Specifically, he asserts that he should have been sentenced under § 2S1.1(a)(2) rather than § 2S1.1(a)(1) of the money laundering Guideline. Alternatively, he argues that, even if we determine he was properly sentenced under subsection (a)(1), the resulting base offense level was inflated because the PSR and District Court improperly incorporated the cocaine conspiracy as relevant conduct under Guidelines § 1B1.3.

The Sentencing Guidelines are now advisory, but a sentence will be found procedurally unreasonable when a district court fails to calculate accurately the sentencing range suggested by the Guidelines. Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). We review a district court's legal conclusions regarding the Guidelines de novo, see United States v. Hawes, 523 F.3d 245, 248-49 (3d Cir.2008), its application of the Guidelines to the facts...