                    United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-3094
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Arkansas.
Stephen Rydale Bolden,                   *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: January 14, 2004

                                   Filed: May 26, 2004
                                    ___________

Before LOKEN, Chief Judge, FAGG and BOWMAN, Circuit Judges.
                              ___________

LOKEN, Chief Judge.

      Stephen Rydale Bolden pleaded guilty to a superseding information charging
him with misprision of felony in violation of 18 U.S.C. § 4. The district court1
departed upward and sentenced Bolden to three years in prison, the statutory
maximum sentence for a misprision offense, because of Bolden’s conduct relating to
a dismissed drug conspiracy charge, and because he was guilty of the felony
underlying his misprision offense. United States v. Bolden, 277 F. Supp. 2d 999

      1
        The HONORABLE WILLIAM R. WILSON, JR., United States District Judge
for the Eastern District of Arkansas.
(E.D. Ark. 2003). Bolden appeals his sentence, arguing that the first reason is
contrary to Eighth Circuit precedent that the Sentencing Commission did not overrule
until after his offense and the second reason is foreclosed by the limited scope of our
prior remand. We reject both arguments and affirm.

                                   I. Background.

       Bolden, Gerald Ghant, and Gregory Nichols were charged in a fourteen count
superseding indictment. Count one charged all three with conspiring to distribute
more than five kilograms of cocaine. Counts two through fourteen charged Bolden
with violating 31 U.S.C. §§ 5313(a) and 5322 by structuring transactions with
financial institutions to avoid currency reporting requirements. The district court
granted Ghant’s motion to sever Bolden’s case. A jury convicted Ghant and Nichols
of the charged drug conspiracy, subjecting them to 120-month mandatory minimum
sentences. The district court departed downward from their guideline ranges and
sentenced them to 126 and 120 months, respectively. We affirmed. United States v.
Ghant, 339 F.3d 660 (8th Cir. 2003), cert. denied, 124 S. Ct. 1184 (2004).

      Meanwhile, Bolden agreed to plead guilty to a superseding information
charging him with misprision of the felony of structuring transactions to avoid
currency reporting requirements. The plea agreement stipulated that the parties “have
arrived” at a preliminary guidelines range calculation of four to ten months and would
“recommend that the Court adopt an amount of $459,162.50, for all sentencing
purposes, including relevant conduct.” The agreement also provided that the district
court was not bound by these stipulations.

      Bolden’s change-of-plea hearing took place on the day the district court
sentenced Ghant and Nichols. Before accepting Bolden’s guilty plea, the court asked
government counsel:



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            THE COURT: How would you rank him with the two men that
      are going to be sentenced this afternoon, the defendant here?

             [GOVERNMENT COUNSEL]: Well, frankly, your Honor, our
      theory of the case was that Mr. Bolden was more the mastermind behind
      the drug activity that was involved with the two defendants. However,
      we have agreed . . . to dismiss Count 1, assuming that Mr. Bolden is able
      to satisfy the Court that he is guilty of the offense that we propose to
      charge him with [in] the superseding information.

Bolden then admitted that he had caused certain deposits to be made in financial
institutions for the purpose of avoiding currency reporting requirements. The court
accepted his guilty plea, dismissed the superseding indictment, and scheduled a
sentencing hearing.

       Bolden’s Presentence Investigation Report calculated his guidelines sentencing
range as zero to six months in prison, applying U.S.S.G. § 2X4.1 (1997), the
misprision of felony guideline in effect when the offense concluded in July 1998.2
Concerned that Bolden was the “kingpin of a drug distribution conspiracy” who
would then receive a disparate penalty compared to Ghant and Nichols, the district
court departed upward under U.S.S.G. § 5K2.0 (1997) and sentenced Bolden to the
statutory maximum of three years in prison. Bolden appealed. The government
moved to remand for resentencing. We granted that motion without an opinion.



      2
        Section 2X4.1 (1997) set the base offense level at nine levels lower “than the
offense level for the underlying offense, but in no event less than 4, or more than 19.”
The base offense level for the underlying structuring offense was 17 because it
involved more than $350,000 but less than $500,000 and Bolden knew or believed
that the funds were proceeds of unlawful activity. See U.S.S.G. §§ 2S1.3 (1997),
2F1.1 (1997); United States v. Booker, 186 F.3d 1004, 1007 (8th Cir. 1999). Thus,
the misprision base offense level was 8. An adjustment for acceptance of
responsibility produced a total offense level of 6.

                                          -3-
       On remand, the district court again departed upward and sentenced Bolden to
three years in prison. Again applying § 5K2.0 (1997), the court found two
“aggravating circumstances of a nature that are not adequately taken into
consideration by the Sentencing Commission in formulating the [misprision of
felony] guidelines.” First, Bolden’s conduct relating to the dismissed cocaine
conspiracy charge warranted an upward departure. “Having reviewed the evidence
again,” the court explained, “I am even more satisfied that Mr. Bolden was the
‘kingpin’ or ‘mastermind’ behind the conspiracy charged in the first count of the
original indictment.” Bolden, 277 F. Supp. 2d at 1006. Second, because Bolden was
guilty of the structuring felony underlying his misprision plea, Bolden deserved an
upward departure eliminating the nine-level reduction built into § 2X4.1, the
misprision of felony guideline. Bolden, 277 F. Supp. 2d at 1012.

      Bolden again appeals his sentence, arguing that the district court relied on two
impermissible bases for an upward departure. Congress modified our applicable
standard of review in § 401(d) of the PROTECT Act. Pub. L. No. 108-21, § 401(d),
117 Stat. 650, 670 (2003), amending 18 U.S.C. § 3742(e) and (f). When, as here, the
defendant appeals an upward departure and the district court has provided the
required written statement of reasons for the sentence, we must first determine by de
novo review whether the departure is “based on a factor that --

      (i) does not advance the objectives set forth in section 3553(a)(2); or
      (ii) is not authorized under section 3553(b); or
      (iii) is not justified by the facts of the case . . . .”

18 U.S.C. § 3742(e)(3)(B). If we determine that the departure “is based on an
impermissible factor, or is to an unreasonable degree,” and that “the sentence is too
high,” we must state specific reasons for our conclusions and remand for further
sentencing proceedings. 18 U.S.C. § 3742(f)(2)(A). As these amendments are



                                         -4-
procedural in nature, they apply to pending cases. See United States v. Gonzales-
Ortega, 346 F.3d 800, 801-02 (8th Cir. 2003).

                      II. The Dismissed “Kingpin” Conduct.

       In United States v. Harris, 70 F.3d 1001, 1003 (8th Cir. 1995), we held that the
district court “erred in considering conduct from the dismissed count as the basis for
an upward departure under section 5K2.0 in clear opposition to the intentions of the
parties as embodied in their plea agreement.” Relying on Harris, Bolden argues that
the district court erred in departing upward based upon his conduct underlying the
dismissed drug conspiracy charge.

       A majority of the other circuits disagreed with our interpretation of § 5K2.0 in
Harris. On November 1, 2000, the Sentencing Commission resolved this conflict in
the circuits3 by adopting § 5K2.21, which expressly provides that the sentencing court
“may increase the sentence above the guidelines range . . . based on conduct . . .
underlying a charge dismissed as part of a plea agreement.” Bolden argues that the
district court was nonetheless bound to apply Harris because § 5K2.21 was adopted
after his offense of conviction was committed, and the Ex Post Facto Clause prohibits
the retroactive application of a guidelines amendment that produces a harsher
sentence. See United States v. Comstock, 154 F.3d 845, 848 (8th Cir. 1998). We
disagree because the argument overlooks the impact of the Supreme Court’s decision
in Koon v. United States, 518 U.S. 81(1996), prior to Bolden’s offense conduct. In
Koon, the Court explained that a sentencing court considering whether to depart from
the applicable guidelines range must first determine whether a potential departure

      3
        The Supreme Court has noted that, in authorizing the Commission to review
and revise the Guidelines, “Congress necessarily contemplated that the Commission
would periodically review the work of the courts, and would make whatever
clarifying revisions to the Guidelines conflicting judicial decisions might suggest.”
Braxton v. United States, 500 U.S. 344, 348 (1991).

                                         -5-
factor is forbidden, encouraged, discouraged, or unmentioned in the Guidelines. 518
U.S. at 95-96. Prior to the clarifying amendment in § 5K2.21, conduct underlying a
dismissed charge was an unmentioned factor. As we have previously explained:

      If a factor is unmentioned in the Guidelines, the court must, after
      considering the ‘structure and theory of both relevant individual
      guidelines and Guidelines taken as a whole,’ decide whether it is
      sufficient to take the case out of the Guideline’s heartland. The court
      must bear in mind the Commission’s expectation that departures based
      on grounds not mentioned in the Guidelines will be ‘highly infrequent.’
      1995 U.S.S.G. ch.1, pt.A.

United States v. Kalb, 105 F.3d 426, 428 (8th Cir. 1997), quoting Koon, 518 U.S. at
96. Koon overruled, not the result in Harris, but Bolden’s interpretation of Harris as
precluding a departure based on dismissed conduct. Thus, this ground for the district
court’s upward departure was not “an impermissible factor” within the meaning of 18
U.S.C. § 3742(f)(2).

       There remains the question whether a departure on this ground is “justified by
the facts of the case.” The district court relied on the evidence presented in the trial
of Ghant and Nichols, after allowing Bolden time to review the transcript from that
trial. Bolden, 277 F. Supp. 2d at 1005. Bolden argues that the evidence was not
sufficient to support the court’s finding that he was the conspiracy’s “kingpin.” But
Bolden need not be the kingpin to justify a sentence of three years, when conspirators
Ghant and Nichols received sentences of 126 and 120 months that included
downward departures. The evidence from the prior trial was clearly sufficient to
support the court’s finding that Bolden participated in the drug conspiracy. Thus, the
upward departure on this ground is “justified by the facts of the case” and does not
depart “to an unreasonable degree.” 18 U.S.C. § 3742(e)(3)(B)(iii) & (f)(2).




                                          -6-
                     III. The Misprision of Felony Conduct.

       The district court also departed upward on the ground that Bolden’s active
participation in the felony underlying his misprision offense justifies an upward
departure because the nine-level reduction in the misprision guideline presumes that
the defendant did not commit the underlying offense. Bolden first argues that the
court violated the permissible scope of our remand order by considering a new
departure ground on remand. We disagree. On remand, “a district court may
resentence a defendant on different grounds, considering different enhancements or
departures, as long as they are not foreclosed by the scope of the appellate decision.”
United States v. Fortier, 242 F.3d 1224, 1232 (10th Cir.), cert. denied, 534 U.S. 979
(2001); accord United States v. Evans, 314 F.3d 329, 332 (8th Cir. 2002), cert.
denied, 539 U.S. 916 (2003). In this case, our prior remand order contained no
foreclosing or limiting directive.4

       Bolden further argues that the district court erred in departing upward on this
ground. The court relied on Fifth Circuit cases noting that the nine-level reduction
in § 2X4.1 was based on the “traditional mold” that “[m]isprision is normally not
committed by one of the perpetrators of the underlying offense,” and holding that “the
district court may depart from the misprision guideline range if it makes a specific
finding that [the defendant] was guilty of the underlying offense.” United States v.
Warters, 885 F.2d 1266, 1275 (5th Cir. 1989).



      4
       The reference to “different . . . departures” in Fortier was legislatively
overruled by § 401(d) of the PROTECT Act, which enacted what is now 18 U.S.C.
§ 3742(g)(2). However, Bolden does not raise this issue on appeal, and we decline
to consider it, particularly because the limitation in § 3742(g)(2)(A) is tied to “the
written statement of reasons required by section 3553(c) in connection with the
previous sentencing.” That requirement was added to § 3553(c) by the PROTECT
Act after the district court’s initial sentencing in this case.

                                         -7-
      We agree with the Fifth Circuit’s analysis. The misprision of felony statute,
18 U.S.C. § 4, provides:

      Whoever, having knowledge of the actual commission of a felony
      cognizable by a court of the United States, conceals and does not as
      soon as possible make known the same to some judge or other person in
      civil or military authority under the United States, shall be fined under
      this title or imprisoned not more than three years, or both.

While this statutory offense requires proof of “affirmative steps” to conceal a known
felony, Neal v. United States, 102 F.2d 643, 646 (8th Cir. 1939), it does not require
proof that the defendant participated in the underlying felony. The English House of
Lords reviewed the common law origins of the misprision offense, and compared its
elements to other offenses of “like degree,” such as accessory after the fact and
compounding a felony, in Sykes v. Director of Pub. Prosecutions, [1962] A.C. 528,
563-64. This review strongly supports the Fifth Circuit’s description of the
“traditional mold.” Moreover, application note 2 to § 2X4.1 provides that a
mitigating role adjustment is usually inappropriate because “an adjustment for
reduced culpability is incorporated in the base offense level.” This is textual
Guidelines support for the Fifth Circuit’s conclusion that active participation in the
underlying felony is a factor not adequately taken into account in § 2X4.1.

      For these reasons, we agree that involvement in the underlying felony offense
is a permissible basis for an upward departure in misprision of felony cases.
Certainly, a departure based on this “unmentioned” factor would not be appropriate
in most misprision cases. But our reported decisions suggest that plea agreements
allowing defendants who were actively involved in underlying felonies to plead guilty
to misprision of felony are not uncommon. See United States v. Santos-Garcia, 313
F.3d 1073, 1076-77 (8th Cir. 2002); United States v. Escamilla, 301 F.3d 877, 878
(8th Cir. 2002), cert. denied, 537 U.S. 1142 (2003); United States v. Mooring, 137
F.3d 595, 596 (8th Cir.), cert. denied, 525 U.S. 902 (1998). In such cases, the

                                         -8-
sentencing court has discretion to depart upward based on sufficient proof that a
defendant who pleaded guilty to misprision of felony in fact committed or actively
participated in the underlying felony. Here, the court’s decision to depart on this
ground is “justified by the facts of the case” because Bolden admitted that he caused
the underlying structuring felony using the financial institution accounts of friends
and relatives. 18 U.S.C. § 3742(e)(3)(B)(iii). In these circumstances, a departure
eliminating the nine-level reduction in § 2X4.1 is not unreasonable.

                                  IV. Conclusion.

       For the foregoing reasons, we conclude that the upward departure is based on
permissible factors, justified by the facts of the case, and reasonable in degree, and
that the resulting sentence is not too high. Accordingly, the judgment of the district
court is affirmed.
                        ______________________________




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