USA. v. Bartley, 98-4317

• Decision Date: 05 June 2000
• Docket Number: No. 98-4317,98-4317
• Citation: 230 F.3d 667
• Parties: (4th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RORY BARTLEY, a/k/a Roy Bailey, Defendant-Appellant. . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 667

230 F.3d 667 (4th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RORY BARTLEY, a/k/a Roy Bailey, Defendant-Appellant.

No. 98-4317.

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: June 5, 2000.

Decided: October 26, 2000.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston.

Charles H. Haden II, Chief District Judge. (CR-97-157) COUNSEL ARGUED: Kevin B. Burgess, HAMILTON, BURGESS, YOUNG & POLLARD, P.L.L.C., Oak Hill, West Virginia, for Appellant. Louise Anna Crawford, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. ON BRIEF: Rebecca A. Betts, United States Attorney, John C. Parr, Assistant United States Attorney, Charleston, West Virginia, for Appellee.

Before WILKINSON, Chief Judge, and MICHAEL and MOTZ, Circuit Judges.

Affirmed in part, reversed in part, vacated in part, and remanded by published opinion. Judge Motz wrote the majority opinion, in which Judge Michael joined. Chief Judge Wilkinson wrote a dissenting opinion.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Rory Bartley pled guilty to one count of conspiracy to distribute marijuana and one count of conspiracy to launder money. On appeal, Bartley challenges only his sentence. Because the district court erred in refusing to group Bartley's offenses, but did not err in finding Bart- ley's managerial role in the conspiracy justified an enhancement, we affirm in part, reverse in part, and vacate and remand for resentenc- ing.

I.

Edwin Bruce recruited Bartley to participate in a marijuana distri- bution network based in Charleston, West Virginia. Bruce introduced Bartley to a number of interested buyers, including street dealers. Bartley regularly distributed marijuana to these dealers from Bruce's supply and made wire transfers to California to purchase marijuana on Bruce's behalf.

Bartley eventually disaffiliated from Bruce and located another marijuana supplier, but he maintained his associations with some of Bruce's street dealers and at times obtained marijuana from Bruce's distributors. Ultimately, Bartley expanded his drug distribution activi- ties to Parkersburg, West Virginia, and directed one of his street deal- ers to identify addresses there to which marijuana could be mailed. Bartley's street dealers would distribute the marijuana and wire transfer the proceeds on Bartley's instruction, often to his uncle Clau- dius Pryce in New York. Bartley himself would also wire funds from his drug proceeds to various family members.

Bartley was charged with conspiracy to distribute marijuana, distri- bution of marijuana, conspiracy to launder money, and two counts of money laundering. After plea negotiations, he pled guilty to the two conspiracy counts and the district court proceeded to sentence him. In calculating Bartley's offense level under the Sentencing Guidelines, the court began with the drug distribution conspiracy and assigned a base offense level of 28 predicated upon the amount of marijuana involved in the offense. See U.S. Sentencing Guidelines Manual § 2D1.1(a)(c) (1998). The court then applied a three-level enhance- ment for Bartley's role as a supervisor or manager in the conspiracy, see id. § 3B1.1(b), resulting in an adjusted offense level of 31 for the drug distribution count. For the money laundering conspiracy, the dis- trict court assigned a base offense level of 23 under U.S.S.G. § 2S1.1(a)(1) and applied the same three-level enhancement based on Bartley's role in the offense. The court then applied another three- level enhancement based on Bartley's knowledge that the laundered funds were drug proceeds under U.S.S.G. § 2S1.1(b)(1), resulting in an adjusted offense level of 29 for this count.

The district court did not group the two conspiracy counts together into a single "Group" under Part D of Chapter 3 of the Sentencing Guidelines. Instead, the court treated the two counts as distinct, and, in accordance with U.S.S.G. § 3D1.4(a), the court started with the greater of the two offense levels -- 31, for the drug conspiracy -- and then added two more levels because the adjusted offense level for the money laundering conspiracy was only two levels less serious than that for the drug conspiracy. This resulted in a combined adjusted offense level of 33. Finally, the court credited Bartley with a three- level downward adjustment for his acceptance of responsibility, see id. § 3E1.1, for a total offense level of 30, and sentenced him to 109 months imprisonment.

On appeal, Bartley contends that the district court erred in failing to group the two conspiracies for sentencing purposes. He also con- tends that the government offered insufficient evidence to support the district court's imposition of the enhancements for his alleged role in the conspiracies. We review a district court's legal interpretation of the Sentencing Guidelines de novo, see United States v. Williams, 152 F.3d 294, 302 (4th Cir. 1998), and its underlying factual determina- tions in applying the Guidelines for clear error. See 18 U.S.C. § 3742(e); United States v. France, 164 F.3d 203, 209 (4th Cir. 1998), cert. denied, 527 U.S. 1010 (1999).

II.

Bartley first argues that the two conspiracy counts should have been grouped in calculating his combined adjusted offense level. Sec- tion 3D1.2 of the Sentencing Guidelines provides for the grouping of closely related counts, or those that "involv[e] substantially the same harm." The Guidelines identify four situations in which counts should be grouped together for sentencing purposes:

(a) When counts involve the same victim and the same act or transaction.

(b) When counts involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan.

(c) When one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.

(d) When the offense level is determined largely on the basis of the total amount of harm or loss, the quantity of a substance involved, or some other measure of aggregate harm, or if the offense behavior is ongoing or continuous in nature and the offense guideline is written to cover such behavior.

U.S.S.G. § 3D1.2.

In an addendum to Bartley's Presentence Report (PSR), the proba- tion officer cited subsection (b) and application note 2 to explain why he treated the two conspiracy counts as separate groups. In the offi- cer's opinion, the conspiracies harmed distinct societal interests and therefore did not involve "the same victim." Bartley objected to the PSR. Although the government agreed with the probation officer's analysis of subsection (b), it also brought to the district court's atten- tion the potential relevance of subsection (c) as a basis for treating the conspiracy counts as one group. Nonetheless, in refusing to group the offenses, the district court simply determined that each of the conspir- acies harmed a distinct societal interest and did not involve "the same victim" as required by subsection (b); the court never reached the question of grouping on the basis of subsection (c).

For purposes of this appeal, we assume, without deciding, that the conspiracies impact different societal interests, and so grouping the counts under subsection (b) would be improper. See United States v. Harper, 972 F.2d 321, 322 (11th Cir. 1992) (refusing to group under subsection (b)); United States v. Gallo, 927 F.2d 815, 824 (5th Cir. 1991) (same). But see United States v. Lopez, 104 F.3d 1149, 1150- 51 (9th Cir. 1997) (grouping under subsection (b) proper); United States Sentencing Commission, Most Frequently Asked Questions About the Sentencing Guidelines, 20-21 (7th ed. 1994) ("Most Fre- quently Asked Questions") (grouping under subsections (a), (b), or (c) proper).¹ The commentary to § 3D1.2, however, provides that "[c]ounts are to be grouped . . . if any one or more of the subsections provide for such grouping." U.S.S.G. § 3D1.2, comment. (n.1) (emphasis added); see also id., comment. (backg'd.) ("Counts involv- ing different victims (or societal harms in the case of `victimless' crimes) are grouped together only as provided in subsection (c) or (d)."). Thus, even if grouping would be improper under subsection

(b), it may be proper under another subsection.

To prevent "double counting," subsection (c) requires offenses to be grouped when one count "embodies conduct that is treated as a specific offense characteristic in, or other adjustment to," the offense level calculation of the other count. U.S.S.G. § 3D1.2(c); see also id. § 3D1.2, comment. (n.5). In calculating Bartley's offense level for the conspiracy to launder money, the district court, as recommended in the PSR, applied a three-level enhancement because Bartley "knew or believed that the funds were the proceeds of an unlawful activity involving the . . . distribution of narcotics or other controlled sub- stances." U.S.S.G. § 2S1.1(b)(1). In this case, grouping under subsec- tion (c) was required. As the only circuit to consider grouping money laundering and drug distribution charges, explained:

Rice's drug offenses were counted twice toward his sen- tence; once as the basis for his conviction on his drug counts, and again as a specific offense characteristic of the money laundering count. This had the effect of increasing Rice's money laundering offense level by three pursuant to § 2S1.1(b) because he knew or believed the funds he was receiving were the proceed[s] of the unlawful distribution of marijuana. . . . Therefore, we find that Rice's offense behav- ior was impermissibly double counted. Accordingly, we hold that the district court erred in failing to group Rice's counts for sentencing purposes as required by subsection (c).

United States v. Rice, 185 F.3d 326, 329 (5th Cir. 1999).

In reaching this holding the Fifth...