                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                           DECEMBER 3, 2007
                              No. 07-11954                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                   D. C. Docket No. 07-00035-CR-BAE-4

UNITED STATES OF AMERICA,


                                                   Plaintiff-Appellee,

                                   versus

JONATHAN DEREK NIBLACK,

                                                   Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Southern District of Georgia
                      _________________________

                             (December 3, 2007)

Before DUBINA, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

     Appellant Jonathan Derek Niblack (“Niblack”) appeals his 18-month
sentence for misprision of a felony, in violation of 18 U.S.C. § 4, for which the

underlying offenses were bank fraud, 18 U.S.C. § 1344, and money laundering, 18

U.S.C. § 1956. Niblack argues that the district court erred in calculating the

advisory sentencing guideline range and, based upon that incorrect calculation,

imposed an unreasonable sentence. Niblack contends that the district court erred by

imposing a two-level specific offense characteristic enhancement under U.S.S.G. §

2S1.1(b)(2)(B) for a conviction under 18 U.S.C. § 1956 because Niblack was

convicted under 18 U.S.C. § 4, not § 1956.

      Our review of sentencing after United States v. Booker, 543 U.S. 220, 125 S.

Ct. 738, 160 L. Ed. 2d 621 (2005) has two components: (1) the district court’s

calculation of the advisory guideline range; and (2) the sentence’s reasonableness.

United States v. Williams, 456 F.3d 1353, 1360 (2006), cert. dismissed, 127 S. Ct.

3040 (2007). “We review the district court’s interpretation of the sentencing

guidelines de novo. Because [Niblack] preserved this issue by timely objection [to

the PSI], if there was error we will reverse unless it was harmless.” United States

v. Paley, 442 F.3d 1273, 1276 (11th Cir. 2006). “A Guidelines miscalculation is

harmless if the district court would have imposed the same sentence without the

error. If the Guidelines calculation is correct, or if the miscalculation is harmless,

we consider whether the sentence is reasonable.” Williams, 456 F.3d at 1360.



                                           2
       As an initial matter, there is a question as to whether the district court ruled

on Niblack’s objections regarding the application of a specific offense

characteristic enhancement under § 2S1.1(b)(2)(B) and, therefore, whether we can

conduct meaningful appellate review. “[T]he [district] court must resolve all

factual and legal disputes raised in the addendum to the presentence report . . .

during the . . . [sentencing] hearing.” United States v. Wise, 881 F.2d 970, 972

(11th Cir. 1989). However, failure to do so does not warrant remand where the

record allows us to undertake meaningful appellate review. Id. at 973.

       Any failure to make such a ruling does not preclude meaningful

review—and therefore, does not require remand—because the district court applied

the guideline calculation as determined in the Presentence Investigation Report

(“PSI”) and sentenced Niblack within the guideline range, and the PSI properly

calculated the guidelines.

        Section 2X4.1 of the United States Sentencing Guidelines provides that the

base offense level for misprision of a felony is nine levels lower than the offense

level for the underlying offense. See U.S.S.G. § 2X4.1. The offense underlying

Niblack’s misprision conviction is money laundering,1 which is covered by



       1
          To find a single base offense for the multiple underlying offenses, the probation officer
grouped the bank fraud and money laundering offenses into a single group and applied the offense
level for money laundering because it yielded a higher offense level than the bank fraud offense.

                                                3
§ 2S1.1, see U.S.S.G. § 2S1.1. Section 2S1.1 includes the following specific

offense characteristic: “If the defendant was convicted under 18 U.S.C. § 1956,

increase by 2 levels.” U.S.S.G. § 2S1.1(b)(2)(B). Additionally, U.S.S.G. § 1B1.3

determines the relevant conduct in applying the guidelines. This section provides:

      Unless otherwise specified, . . . specific offense characteristics . . .
      shall be determined on the basis of the following: all acts and
      omissions committed, aided, abetted, counseled, commanded,
      induced, procured, or willfully caused by the defendant . . . that
      occurred during the commission of the offense of conviction, in
      preparation for that offense, or in the course of attempting to avoid
      detection or responsibility for that offense[.]

U.S.S.G. § 1B1.3(a)(1).

      The commentary to these provisions explains the extent to which the

guideline provisions for the underlying offense apply to calculating the guideline

range for misprision of a felony. “[C]ommentary in the Guidelines Manual that

interprets or explains a guideline is authoritative unless it violates the Constitution

or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that

guideline.” Stinson v. United States, 508 U.S. 36, 38, 113 S. Ct. 1913, 1915, 123 L.

Ed. 2d 598 (1993). The commentary to § 2X4.1, the guideline applicable to

misprision of a felony, directs the court to “[a]pply the base offense level plus any

applicable specific offense characteristics [of the underlying offense] that were




                                            4
known, or reasonably should have been known, by the defendant.” 2 U.S.S.G.

§ 2X4.1, comment. (n.2) (referencing U.S.S.G. § 1B1.3, comment. (n.10)). The

commentary to § 1B1.3 states: “In the case of . . . misprision, . . . the conduct for

which the defendant is accountable includes all conduct relevant to determining the

offense level for the underlying offense that was known, or reasonably should have

been known, by the defendant.” U.S.S.G. § 1B1.3, comment. (n.10). Specifically,

application note 6 to § 1B1.3 states: “[A]n express direction to apply a particular

factor only if the defendant was convicted of a particular statute includes the

determination of the offense level where the defendant was convicted of . . .

misprision of a felony in respect to that particular statute.” U.S.S.G. § 1B1.3,

comment. (n.6). Application note 6 also offers § 2S1.1(b)(2)(B) as an example of a

factor requiring conviction of a particular statute. Id.

       After reviewing the record, we conclude that the PSI properly calculated the

guideline range. The commentaries to § 2X4.1 and § 1B1.3 make clear that the

conduct relevant to determining the offense level for misprision is the same as that

for the underlying offense—here, money laundering—including the applicable

specific offense characteristics. See U.S.S.G. §§ 1B1.3, comment. (n.6, 10),


       2
        Niblack does not argue that the conduct and applicable specific offense characteristics were
not known or reasonably should have been known by him. He argues only that the specific offense
characteristic regarding a conviction under § 1956 is inapplicable because he was convicted under
§ 4.

                                                 5
2X4.1, comment. (n.2). Thus, the guidelines and their commentary direct the

probation officer and the court to determine the offense level for the underlying

offense exactly as they would have had the defendant been convicted of that

offense. From there, they then apply the misprision guideline provision. See

U.S.S.G. § 2X4.1. Had Niblack committed money laundering, he would have been

convicted under the money laundering statute, 18 U.S.C. § 1956, and therefore,

been subject to a two-level specific offense characteristic enhancement pursuant to

§ 2S1.1(b)(2)(B) for conviction under § 1956. See 18 U.S.C. § 1956; U.S.S.G. §

2S1.1(b)(2)(B). The offense level for the underlying offense of Niblack’s

misprision conviction is, applying the guidelines and commentary, as discussed

above, the same. Therefore, the two-level specific offense characteristic

enhancement pursuant to § 2S1.1(b)(2)(B) for conviction under § 1956 applied.

The probation officer and the district court applied the guidelines in a manner

consistent with this analysis, and the district court sentenced Niblack within the

resultant sentencing range. We conclude, therefore, that the guideline calculation

did not result in an unreasonable sentence. Accordingly, we affirm Niblack’s

sentence.

      AFFIRMED.




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