                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0088n.06

                                            No. 09-3839
                                                                                           FILED
                            UNITED STATES COURT OF APPEALS                             Feb 08, 2011
                                 FOR THE SIXTH CIRCUIT                           LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                              )
                                                       )
             Plaintiff–Appellee,                       )
                                                       )
                                                       ) ON APPEAL FROM THE UNITED
                       v.                              ) STATES DISTRICT COURT FOR THE
                                                       ) SOUTHERN DISTRICT OF OHIO
SHAWN E. PASS,                                         )
                                                       )
           Defendant–Appellant.                        )
                                                       )


Before: GUY, BOGGS, and GIBBONS, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Defendant–appellant Shawn E. Pass pled guilty

to drug conspiracy, wire fraud, and money laundering conspiracy. At sentencing, the district court

agreed with the position of the government that Pass should receive a two-level increase for his

supervisory role pursuant to United States Sentencing Guidelines (“U.S.S.G.”) § 3B1.1(c). Pass

appeals his sentence, first arguing that the two-level enhancement for his supervisory role was

improperly added to his sentence. Second, Pass argues that his trial counsel’s failure to object to the

addition of this enhancement denied him effective assistance of counsel.

       For the following reasons, we affirm the sentence imposed by the district court.

                                                  I.




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United States v. Shawn E. Pass
No. 09-3839

       On April 14, 2008, an indictment was returned charging Shawn E. Pass (“Pass”), Thomas

A. Mundell (“Mundell”), and Joy J. Freeman (“Freeman”) in seventeen counts. Specifically, Pass

was charged with conspiracy to possess over five kilograms of cocaine, five grams or more of

cocaine base, and marijuana with intent to distribute, in violation of 21 U.S.C. § 846; distribution

of cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C); distribution of marijuana, in violation of

21 U.S.C. § 841(a)(1), (b)(1)(D); distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(C), and 18 U.S.C. § 2; distribution of five grams or more of cocaine base, in violation of 21

U.S.C. § 841(a)(1), (b)(1)(B)(iii), and 18 U.S.C. § 2; managing, controlling, and making available

a place for the purpose of manufacturing, distributing, and storing cocaine and marijuana, in

violation of 21 U.S.C. § 856(a)(2) and 18 U.S.C. § 2; wire fraud, in violation of 18 U.S.C. § 1343

and 18 U.S.C. § 2; money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i) and 18 U.S.C. §

2; and conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h).

       In 2006, investigating agents with the Franklin County Sheriff’s Office, the Delaware County

Sheriff’s Office, and the Ohio Bureau of Criminal Identification and Investigation developed a

confidential source who had been buying cocaine from Pass for a number of years. Pass’s arrest and

plea were based upon six controlled purchases of marijuana, cocaine, and crack cocaine by the

confidential source from December 2006 through September 2007.

       Search warrants were executed on September 14, 2007, on Pass’s two residences, where

agents found $1,750 in cash, a cocaine press, a money counter, and a marijuana growing operation.




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United States v. Shawn E. Pass
No. 09-3839

That same day a search warrant was executed on Mundell’s residence, where agents found a cocaine

press, scale, and residue.

       Investigating agents confirmed that Pass had been distributing substantial amounts of cocaine

from at least the mid-1990s. Furthermore, the evidence established that Pass conspired with Mundell

and others to distribute and possess with intent to distribute cocaine, cocaine base, and marijuana.

Pass found several different ways to conceal his proceeds by conducting transactions in the names

of other people. From the sale of these aforementioned substances, Pass obtained a significant

amount of money, which he used to support his lifestyle at a bar he owned called Club Obvious.

       Pass committed wire fraud in the purchase of one of his residences (“Port Haven Drive”).

The home was originally purchased in the name of his live-in girlfriend, Joy Freeman. Pass was

involved in the purchase of Port Haven Drive and in obtaining three mortgages; Freeman signed the

paperwork at Pass’s request. In order to obtain these loans, both Pass and Freeman provided false

information, including inflated gross income. Using proceeds from the loans, Freeman withdrew

money and gave the cash to Pass, who used it to purchase drugs and/or pay expenses related to Club

Obvious. After obtaining the third loan, Freeman and Pass failed to make any more monthly

payments under the mortgages. In March 2007, Freeman filed for bankruptcy protection, resulting

in the discharge of her debt and the nonpayment of the third loan. Port Haven Drive was foreclosed

by the mortgage company.

       On May 28, 2008, Freeman was arrested; she entered a guilty plea on December 11 to wire

fraud and money laundering. On May 30, 2008, Mundell was arrested; he entered a guilty plea on


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United States v. Shawn E. Pass
No. 09-3839

October 24 for conspiracy to distribute and possess with intent to distribute cocaine and five grams

of cocaine base. Pass was also arrested on May 30, 2008.

       On February 6, 2009, Pass pled guilty to the counts charging him with conspiracy to

distribute and possess with intent to distribute five kilograms or more of cocaine, five grams or more

of cocaine base, and marijuana; wire fraud; and conspiracy to commit money laundering. Also at

the plea hearing, the other counts were dismissed, and the maximum penalties were outlined. In the

plea agreement, the parties agreed that the base offense level attributable to the money laundering

conspiracy was an offense level of 36 and that an additional two levels should be added pursuant to

U.S.S.G. § 2S1.1(b)(2)(B) because Pass pled guilty under 18 U.S.C. § 1956. The agreement set forth

the position of the United States that Pass was a supervisor of criminal activity and was thus subject

to a two-level increase in the base offense level for his role pursuant to U.S.S.G. § 3B1.1(a). Pass

reserved the right to object to this increase. The agreement recognized that the court would

ultimately determine the applicable Guideline range. The government promised to recommend a

two-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a) if Pass

continued to accept responsibility for his offenses.

       The PSR agreed with the government’s position on the supervisory role enhancement and

also recommended that Pass not receive a reduction for acceptance of responsibility. Prior to his

sentencing hearing, Pass filed several objections, including an objection to his supervisory role in

the drug conspiracy and the money laundering conspiracy. At the sentencing hearing, after

conferring with Pass, Pass’s counsel withdrew all the objections to the PSR, and Pass confirmed to


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United States v. Shawn E. Pass
No. 09-3839

the district court that this was his chosen course of action. The government then requested a two-

level reduction for acceptance of responsibility. The district court found that Pass’s total offense

level was 38, subjecting him to a range of 235–293 months’ imprisonment. The district court

sentenced Pass to 180 months’ imprisonment, five years of supervised release, and payment of

$187,750 in restitution. Pass timely filed his notice of appeal on July 9, 2009.

        Pass raises two issues on appeal: (1) whether the district court erred in calculating the

applicable Guidelines range when it imposed a two-level enhancement for a criminal supervisory

role; and (2) whether Pass was denied effective assistance of trial counsel when his counsel did not

object to the guideline enhancement for a criminal supervisory role for the money laundering

conspiracy.

                                                    II.

        The primary issue Pass raises on appeal is whether the district court erred in imposing a two-

level enhancement for a supervisory or organizational role pursuant to U.S.S.G. § 3B1.1(c). Because

trial counsel failed to make a clear objection to the application of the sentencing enhancement in the

district court, we review the district court’s sentence for plain error. United States v. Bostic, 371

F.3d 865, 872–73 (6th Cir. 2004). To demonstrate plain error, Pass must show (1) there was an error

(2) that was plain, (3) that affected his substantial rights, and (4) that seriously affected the fairness,

integrity, or public reputation of judicial proceedings. United States v. Martin, 520 F.3d 656, 658

(6th Cir. 2008).




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United States v. Shawn E. Pass
No. 09-3839

       In order to determine if the district court erred, we first analyze whether an enhancement for

a supervisory role in a money laundering conspiracy is permitted under § 2S1.1 of the Guidelines,

and second whether the district court actually added the enhancement for Pass’s involvement as a

supervisor of the drug conspiracy or the money laundering conspiracy.

       First, the parties dispute the meaning of the language of Application Note 2(C) to § 2S1.1.

Section 2S1.1 of the Sentencing Guidelines sets forth the proper levels for sentencing a criminal for

“laundering of monetary instruments.” Application Note 2(C) reads:

       Application of Chapter Three Adjustments.—Notwithstanding § 1B1.5(c), in cases
       in which subsection (a)(1) applies, application of any Chapter Three adjustment shall
       be determined based on the offense covered by this guideline (i.e., the laundering of
       criminally derived funds) and not the underlying offense from which the laundered
       funds were derived.


U.S.S.G. § 2S1.1 cmt. application n.2(C). The text of the note is clear that chapter three adjustments

may not be applied with respect to the underlying offense—in this case the drug conspiracy. The text

is also clear that chapter three adjustments may be applied with respect to the money laundering

offense. Furthermore, we implied this reading of the application note in United States v. Anderson,

526 F.3d 319 (6th Cir. 2008). On appeal after the defendant pled guilty to money laundering, we

held that the defendant was not entitled to a four-level sentencing reduction for her role in the

offense. Id. at 328. The district court applied the reduction for her mitigating role in the drug

conspiracy pursuant to § 3B1.2(a). Id. We turned to Note 2(C) to reverse the district court, holding

that the reduction could only have been applied if the reduction was based upon her role in the

offense of money laundering, not in the offense of the drug conspiracy. Id. Thus, we have read Note

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United States v. Shawn E. Pass
No. 09-3839

2(C) to permit the application of chapter three adjustments where the adjustments are applied to the

money laundering offense.

       Second, the parties dispute whether the supervisory role enhancement was applied for Pass’s

involvement in the drug conspiracy or the money laundering conspiracy. If the district court applied

the organizer enhancement for Pass’s involvement in the money laundering offense, rather than for

his role in the drug conspiracy, then the district court committed no error and Pass’s sentence is in

compliance with Application Note 2(C) to § 2S1.1.

       Pursuant to U.S.S.G. § 2S1.1(a)(1), the base offense level is “[t]he offense level for the

underlying offense”—in this case the drug conspiracy—“if (A) the defendant committed the

underlying offense . . . and (B) the offense level for that offense can be determined.” U.S.S.G. §

2S1.1(a)(1). In the plea agreement, the parties agreed that the base offense level was 36 for the drug

conspiracy. Because Pass pled guilty to 18 U.S.C. § 1956, pursuant to U.S.S.G. § 2S1.1(b)(2)(B),

the parties agreed that his base level would be increased by two levels to 38. These agreements were

reflected in the PSR. Next, in the plea agreement the government (not Pass) took the position that

Pass was a supervisor in the criminal activity outlined in counts 1 (drug conspiracy), 15 (wire fraud),

and 17 (money laundering conspiracy). This provided for a two-level enhancement for a supervisory

role at the time of sentencing. See U.S.S.G. § 3B1.1(c). The plea agreement specifically left open

Pass’s right to object to this enhancement, but Pass later withdrew his objections. The PSR agreed

with the government’s interpretation of Application Note 2(C) to U.S.S.G. § 2S1.1. It stated:

       According to Application Note #2(c) under § 2S1.1, in the case which subsection
       (a)(1) applies, application of any Chapter 3 adjustments shall be determined based

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United States v. Shawn E. Pass
No. 09-3839

        on the offense covered by this guideline (i.e.: the laundering of criminally derived
        funds) and not on the underlying offense from which the laundered funds were
        derived.

The PSR continued to describe Pass’s organizer role with respect to the money laundering activities,

not the drug conspiracy activities. Furthermore, the district court acknowledged that the two-level

enhancement was specifically for his “role in the offense in that [Pass] had been determined . . . to

be an organizer with respect to the money laundering charge.” The enhancement was imposed due

to Pass’s organizer role in the money laundering offense, and thus it was proper.

        We affirm the sentence imposed by the district court.

                                                 III.

        In order to prevail on his claim for ineffective assistance of counsel, Pass must show (1) his

counsel’s performance was deficient and (2) that deficiency prejudiced his defense. Strickland v.

Washington, 466 U.S. 668, 687 (1984). Because the district court was correct in permitting the two-

level enhancement for Pass’s role as an organizer in the money laundering offense, the failure to

object to such an enhancement cannot establish either deficiency or prejudice as needed for a claim

of ineffective assistance of counsel. For that reason, we deny that Pass’s claim of ineffective

assistance of trial counsel.

                                                 IV.

        For the foregoing reasons, we affirm Pass’s sentence.




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