                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-23-2009

USA v. Blackmon
Precedential or Non-Precedential: Precedential

Docket No. 07-4237




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                                               PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                          No. 07-4237


              UNITED STATES OF AMERICA

                                v.

                      ERIC BLACKMON,
                                Appellant


         Appeal from the United States District Court
                  for the District of Delaware
           (D.C. Criminal Action No. 06-cr-00109)
        District Judge: Honorable Joseph J. Farnan, Jr.


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


    Before: AMBRO, and GREENBERG, Circuit Judges,
              and O’NEILL,* District Judge

    *
     Honorable Thomas N. O’Neill, Jr., Senior United States
District Judge for the Eastern District of Pennsylvania, sitting by
designation.
             (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
  Federal Court Division
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106-0000

      Counsel for Appellant


Colm F. Connolly
   United States Attorney
Ilana H. Eisenstein
   Assistant United States
Office of United States Attorney
1007 North Orange Street, Suite 700
P.O. Box 2046
Wilmington, DE 19899-0000

      Counsel for Appellee



                              2
                 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.




  1
    The District Court had jurisdiction under 18 U.S.C. § 3231.
Blackmon filed a timely notice of appeal. We have appellate
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

                               3
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

                                4
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

                                5
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


    2
    Guidelines § 3D1.2, titled “Groups of Closely Related
Counts,” states in pertinent part:

        All counts involving substantially the same harm
        shall be grouped together into a single Group.
        Counts involve substantially the same harm
        within the meaning of this rule:
        ....
        (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.

        Offenses covered by the following guidelines are
        to be grouped under this subsection:
        . . . §§ 2D1.1 . . . 2S1.1[.]

                                6
“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


   3
    The “relevant conduct” rule specifies the scope of conduct
for which a defendant can be held accountable in setting the
offense level. Sentencing Guidelines § 1B1.3, “Relevant
Conduct (Factors that Determine the Guideline Range),” states
in pertinent part:

       (a) Chapters Two (Offense Conduct) and Three

                               7
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


       (Adjustments).             U nless otherwise
       specified, . . . cross references in Chapter Two,
       and [ ] adjustments in Chapter Three, shall be
       determined on the basis of the following:

              (1)(A) all acts and omissions committed,
              aided, abetted, counseled, commanded,
              induced, procured, or willfully caused by
              the defendant; and
                     ....
              (2) solely with respect to offenses
              of a character for which § 3D1.2(d)
              would require grouping of multiple
              counts, all acts and omissions
              described in subdivisions (1)(A)
              and (1)(B) above that were part of
              the same course of conduct or
              common scheme or plan as the
              offense of conviction[.]

                                8
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

                                 9
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



      4
   Blackmon does not challenge the propriety of grouping the
counts under Guidelines § 3D1.2.

                               10
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, 128 S.Ct.
586, 597 (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. 2006), its application of the
Guidelines to the facts for abuse of discretion, id., and its factual
findings for clear error, United States v. Grier, 475 F.3d 556,
570 (3d Cir. 2007) (en banc).

       The starting point for this discussion is the applicable
Sentencing Guidelines provision.        Guidelines § 2S1.1,
“Laundering of Monetary Instruments,” corresponds with
violations of 18 U.S.C. § 1956. Section 2S1.1 states in relevant
part:

       (a) Base Offense Level:

              (1) The offense level for the underlying
       offense from which the laundered funds were
       derived, if (A) the defendant committed the
       underlying offense (or would be accountable for
       the underlying offense under subsection (a)(1)(A)
       of § 1B1.3 (Relevant Conduct)); and (B) the
       offense level for that offense can be

                                 11
      determined; or

            (2) 8 plus the number of offense levels
      from the table in § 2B1.1 (Theft, Property
      Destruction, and Fraud) corresponding to the
      value of the laundered funds, otherwise.

      (b) Specific Offense Characteristics

             (1) If (A) subsection (a)(2) applies; and (B)
      the defendant knew or believed that any of the
      laundered funds were the proceeds of, or were
      intended to promote[,] (i) an offense involving the
      manufacture, importation, or distribution of a
      controlled substance or a listed chemical; . . . .

             (2) (Apply the Greatest):

                    (A) . . . .

                    (B) If the defendant was convicted
                    under 18 U.S.C. § 1956, increase
                    by 2 levels.

(emphases added).

      A.     Application of § 2S1.1(a)(1) Was Proper

      Blackmon first argues that the District Court should have

                                  12
sentenced him under Guidelines § 2S1.1(a)(2), which focuses on
the amount of funds laundered for purposes of calculating the
base offense level, rather than § 2S1.1(a)(1), which incorporates
the “underlying offense.” He posits that his base offense level
should have been derived solely from the amount of funds
laundered in the August 2006 sting transaction. According to
his calculations, because only $15,000 was involved in the sting
transaction, his base offense level under subsection (a)(2) would
have been 12, which is substantially less than the PSR’s
calculation of 36 under subsection (a)(1).5

        To understand fully the error in Blackmon’s argument,
we need to look at the history of the money laundering
Guideline section. Prior to 2001, § 2S1.1 set the base offense
level for all money laundering according to the amount of funds
laundered, regardless of the culpability of the offender. See
U.S.S.G. § 2S1.1 (2000). It was amended to its current form in
2001, and that applies here. The money laundering Guideline
now accounts for the culpability of the offender. The historical


   5
      Blackmon’s complete Guidelines calculation is that, after
starting at a base offense level of 12 under § 2S1.1(a)(2), 6
levels would be added under subsection (b)(1), because he
“believed that . . . the laundered funds were the proceeds
of . . . an offense involving the . . . distribution of a controlled
substance.” Excluding any deduction for acceptance of
responsibility, he totals his adjusted offense level at 20, adding
another 2 levels for the specific offense characteristic under
subsection (b)(2)(B).

                                13
notes indicate that the amended Guideline is intended to “tie[]
offense levels for money laundering more closely to the
underlying conduct that was the source of the criminally derived
funds.” U.S.S.G. App. C, Amend. 634, at 234 (2001).

       The Guideline distinguishes between direct money
launderers under subsection (a)(1) and third-party money
launderers under subsection (a)(2). Id. at 227–28. Direct
launderers are those who also commit the crime that produces
the illicit funds, whereas third-party launderers have no
involvement in the underlying offense and only launder the
money generated from that offense. Id. at 228. Not
surprisingly, a defendant sentenced under subsection (a)(1) often
gets a higher sentence than a less culpable offender sentenced
under subsection (a)(2). These two subsections provide
alternative methods for determining a defendant’s base offense
level.

       To be a direct money launderer, subsection (a)(1)
requires that two conditions be met: (A) the defendant is
responsible for the “underlying offense,” either because he
committed it or would be accountable for it under the relevant
conduct Guideline § 1B1.3; and (B) the base level of the
underlying offense must be determinable.             U.S.S.G.
§ 2S1.1(a)(1)(A)–(B). The sentencing base level for direct
launderers is determined by incorporating the offense level for
the “underlying offense from which the laundered funds were
derived.” Id. § 2S1.1(a)(1).


                               14
       If either of the two conditions for a direct launderer
cannot be met, then the defendant is sentenced as a third-party
launderer under subsection (a)(2). These offenders generally are
not involved in the underlying offense and their sentencing base
level is set by the “value of the laundered funds.” Id.
§ 2S1.1(a)(2).

       Blackmon argues that he should have been considered a
third-party money launderer under § 2S1.1(a)(2). He contends
that there was no underlying offense because the $15,000 he
received representing drug proceeds was supplied by the
Government as part of a sting transaction and not by Williams.
Put another way, he argues that the first condition required to be
treated as a direct launderer, subpart (A), was not met.

        This argument is untenable. The laundering offense is
not “fictional,” as Blackmon states. See United States v. Perez,
992 F.2d 295, 298 (11th Cir. 1993) (holding that a money
laundering enhancement was applicable because defendant
knew the funds were represented to be proceeds of a drug
transaction); United States v. Contreras, 950 F.2d 232, 237 (5th
Cir. 1991) (explaining that “factual impossibility is not a
defense if the crime could have been committed had the
attendant circumstances been as the actor believed them to be”).
As part of Blackmon’s plea agreement, he admitted the $15,000
represented drug proceeds that he accepted as payment for
shipping one kilogram of cocaine to Philadelphia. Thus
Blackmon committed the underlying offense of cocaine


                               15
distribution.6 See U.S.S.G. § 2S1.1 App. Note 2(B) (“defendant
must have committed the underlying offense or be accountable
for the underlying offense”).

        Blackmon does not dispute that the second condition of
§ 2S1.1(a)(1), subpart (B), was met. This condition requires that
the base level for the underlying offense be determinable. As
the PSR determined, the underlying offense from which the
laundered funds were derived was cocaine distribution as part of
the sting transaction. The base offense level for drug offenses
is set by reference to the Guidelines drug quantity table. See
U.S.S.G. § 2D1.1(c)(2) (indicating a base offense level of 36 for
an offense involving at least 50 kilograms but less than 150
kilograms of cocaine). Accordingly, we hold that the District
Court properly treated Blackmon as a direct money launderer
under § 2S1.1(a)(1).

       B.     The Cocaine Conspiracy Was Properly
              Incorporated as Relevant Conduct Under
              § 2S1.1(a)(1)

       Blackmon also argues that, should we determine he is a
direct money launderer under Guidelines § 2S1.1(a)(1), the
District Court, by adopting the PSR, improperly calculated the
base offense level because it included the cocaine conspiracy

   6
    Indeed, Count Four of the Indictment lists the “distribution
of cocaine,” in violation of 21 U.S.C. § 841, as the “unlawful
activity” underlying the money laundering offense.

                               16
from Count One in the “underlying offense” as relevant conduct
under Guidelines § 1B1.3. See Appellant’s Br. 20 (arguing the
PSR “carr[ied] over the offense level for the drug conspiracy to
the money laundering [G]uideline[], regardless of the fact that
the government had failed to offer any evidence that the drug
conspiracy involved any actual acts of money laundering”). The
incorporation of the drug amount from the cocaine conspiracy
added significantly to the base offense level. He contends that
only the $15,000 from the sting transaction should control the
base offense level.

       The Government responds to this argument by explaining
that Blackmon distorts the issue. It asserts that the question of
incorporating relevant conduct into the “underlying offense”
under § 2S1.1(a)(1) is not whether there was relevant money
laundering conduct during the course of the cocaine conspiracy.
Instead, it is whether the cocaine conspiracy was relevant
conduct to the cocaine distribution, which we have already
determined is the “underlying offense” for purposes of
sentencing Blackmon as a direct money launderer under
subsection (a)(1).

       Blackmon’s argument mistakenly focuses on the
laundered funds, which is the method subsection (a)(2) uses to
calculate the base level by determining the “value of the
laundered funds,” rather than on the nature of the offense, which
is the method subsection (a)(1) uses to calculate the base level
by considering the “underlying offense.” For drug offenses,
such as the cocaine distribution and the overarching cocaine

                               17
conspiracy, the Guidelines direct that the base offense level is
set by the quantity of drugs involved.           See U.S.S.G.
§ 2D1.1(c)(2) (“Drug Quantity Table”).

       Here we examine two questions: (1) whether, in
calculating the base offense level under § 2S1.1(a)(1), a district
court can incorporate any relevant conduct under Guidelines
§ 1B1.3 into the “underlying offense”; and (2) if relevant
conduct can be incorporated, whether the District Court properly
treated the cocaine conspiracy as such. We answer yes to both
questions. Accordingly, we hold that, in calculating Blackmon’s
base offense level, the District Court properly considered not
only the single kilogram of cocaine directly related to the money
laundering offense, but also his involvement in the cocaine
conspiracy, as relevant conduct.

          Although we have not addressed the more general
question whether relevant conduct under Guidelines § 1B1.3 can
be incorporated into § 2S1.1(a)(1), other appellate courts have
considered this issue and have uniformly concluded that relevant
conduct is applicable. See, e.g., United States v. Cruzando-
Laureano, 440 F.3d 44, 48 (1st Cir. 2006) (directing “the
sentencing court to take as the base offense level for purposes of
§ 2S1.1 the full calculated offense level that applies to the
offense which produced the laundered funds” by “calculat[ing]
the sentence as it would have applied to the extortion counts
standing alone, [including all relevant conduct,] . . . then
. . . return to § 2S1.1”); United States v. Charon, 442 F.3d 881,
887–88 (5th Cir. 2006) (explaining the “underlying offense”

                               18
includes all relevant conduct); see also United States v.
Anderson, 526 F.3d 319 (6th Cir. 2008) (determining
defendant’s involvement in the drug conspiracy and the amount
of drugs she “could have reasonably foreseen” for setting her
base offense level on her money laundering charge). We agree
with our sister courts.

       Under § 2S1.1(a)(1), we take the view of the First Circuit
Court that, to calculate correctly the base offense level of the
“underlying offense,” the sentencing judge must consider that
offense a stand-alone crime. Cruzado-Laureano, 440 F.3d at 48.
Here, the underlying offense for the money laundering count is
the cocaine distribution. If the cocaine distribution were a
stand-alone crime, there would be no question that the relevant
conduct rules of § 1B1.3 would apply to determine the
appropriate Guidelines range. U.S.S.G. §§ 1B1.2(b) (“After
determining the appropriate offense guideline section[,] . . .
determine the applicable guideline range in accordance with
§ 1B1.3 (Relevant Conduct).”), 1B1.3. To illustrate, relevant
conduct plays a significant role in drug offenses when
calculating the quantity of drugs involved in an offense to which
Guidelines § 2D1.1 applies, such as this case. See id. § 2D1.1
cmt. n.12 (“Types and quantities of drugs not specified in the
count of conviction may be considered in determining the
offense level. See § 1B1.3(a)(2) (Relevant Conduct).”); United
States v. Clark, 415 F.3d 1234, 1240–41 (10th Cir. 2005)
(“Under the Guidelines, a sentencing court in calculating the
quantity of drugs involved in an offense should consider all
quantities stemming from a defendant’s ‘relevant conduct.’”).

                               19
       Blackmon argues that we should not incorporate relevant
conduct in this context because it is not explicitly listed in
§ 2S1.1(a)(1). That subsection explicitly references the relevant
conduct Guideline, § 1B1.3(a)(1)(A), to make a defendant
“accountable for the underlying offense,” but the text does not
include a reference to § 1B1.3(a)(2). Subsection 1B1.3(a)(2)
addresses the application of relevant conduct to determine the
offense level when multiple counts are grouped under
Guidelines § 3D1.2(d), as is the circumstance here. Essentially,
Blackmon is making a textual argument based on expressio
unius est exclusio alterius (to say one is to exclude the rest), that
the express mention of one part of the relevant conduct
Guideline in § 2S1.1(a)(1) of the money laundering Guideline
excludes all others.

        The Fifth Circuit Court dismissed a similar argument in
Charon, 442 F.3d 881, which provides a roadmap for our
analysis. Like Blackmon, Charon was caught in a sting
transaction involving the distribution of cocaine. He pled guilty
to two counts—one count of cocaine distribution related to the
sting transaction and one count of money laundering related to
the purchase of property from drug proceeds one year prior to
the sting transaction. Id. at 884. The Court grouped the two
counts under Guidelines §§ 3D1.1 and 3D1.2(d), and, as the
grouping rules require under § 3D1.3(b), used the money
laundering offense to calculate his base offense level because it
produced the higher offense level. Id. at 884, 888.

       It concluded that Charon was a direct money launderer

                                 20
under § 2S1.1(a)(1), and that the offense underlying his money
laundering was cocaine distribution. Id. at 888. Charon asserted
that the calculation of his money laundering base offense level
should be based only on the drugs directly connected to the
money laundering offense and not expanded to any other drug
dealing as relevant conduct. Id. at 886. In making this claim, he
relied on a textual argument similar to Blackmon’s—“that the
Sentencing Commission did not direct the courts to use relevant
conduct” in the money laundering Guideline, § 2S1.1(a)(1). Id.
at 886, 888.

        In rejecting Charon’s argument, the Court stated that
because his two counts were grouped under § 3D1.2(d),
incorporating “relevant conduct is inherent in the grouping
rules.” Id. at 888. Thus, it concluded that relevant conduct
should be included in the “underlying offense.” Id. (quoting
U.S.S.G. § 1B1.3(a)(2) (Relevant Conduct) (“‘[S]olely with
respect to offenses of a character for which § 3D1.2(d) would
require grouping of multiple counts [as here], all acts and
omissions . . . that were part of the same course of conduct or
common scheme or plan as the offense of conviction’ shall be
used in determining the base offense level.”)). Because Charon
was involved in an overarching drug-dealing business and the
drug transaction that formed the basis for the money laundering
count was a small part of that common scheme, the Court held
that the sentencing judge appropriately considered all relevant
conduct in calculating the drug weight for purposes of setting
the money laundering base offense level. Id. 888–89.


                               21
          As Blackmon argues, the text of § 2S1.1(a)(1) does not
reference the application of relevant conduct in this type of
situation, nor does the Sentencing Commission in its
commentary explicitly direct that a court apply it. We agree
with the Charon court, however, that nothing in § 2S1.1, its
sentencing commentary, or any other pertinent Guideline,
indicates that the sentencing judge should apply the grouping
rules under § 3D1.2 differently in the context of § 2S1.1(a)(1).
See id. at 888 (stating that the “analysis under § 3D1.2(d)
necessarily takes into account the ‘relevant conduct’ provisions
of the Guidelines, and § 2S1.1(a)(1) does not require the court
to do anything differently under that section”); United States v.
Rudolph, 137 F.3d 173, 176 (3d Cir. 1998) (explaining that two
uncharged bribes qualify as relevant conduct because they
would have been grouped under § 3D1.2(d) with the charged
offense, and relevant conduct under § 1B1.3(a)(2) includes “all
acts . . . that were part of the same course of conduct or common
scheme or plan as the offense of conviction”). Relevant conduct
is an “important feature of the [G]uidelines,” and we know no
reason to depart here from the standard practice. See Joseph E.
Kennedy, Making the Crime Fit the Punishment, 51 Emory L.J.
753, 809 n.239 (2002) (citing William W. Wilkins, Jr. & John
R. Steer, Relevant Conduct: The Cornerstone of the Federal
Sentencing Guidelines, 41 S.C. L. Rev. 495 (1990)).

       The “mixing and matching of different guideline
provisions” that Blackmon protests is precisely what the
Guidelines require a sentencing judge to do in using the base
offense level of the underlying offense to calculate a suggested

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sentencing range for money laundering. As we stated earlier,
we also agree with our First Circuit colleagues in Cruzando-
Laureano, 440 F.3d at 48, that perhaps the best way to think of
this complex “mixing” of Guidelines provisions is to identify the
“underlying offense” under § 2S1.1(a)(1), and then treat it as a
stand-alone crime for purposes of calculating the base offense
level. After that calculation has been set, the sentencing judge
should return to the money laundering Guideline and add any
specific offense characteristics under § 2S1.1(b). Accordingly,
the District Court properly included relevant conduct in the
“underlying offense.”

        Because relevant conduct can be incorporated into the
“underlying offense” under Guidelines § 2S1.1(a)(1), we
consider whether the cocaine conspiracy is relevant conduct to
the sting transaction. To qualify as relevant, and therefore
attributable to a defendant for sentencing purposes under
§ 1B1.3(a)(2), three conditions must be met: (1) it must be the
type of conduct described in § 1B1.3(a)(1)(A) and (B) (“all acts
and omissions committed . . . by the defendant”); (2) grouping
would be appropriate under § 3D1.2(d); and (3) it must have
been “part of the same course of conduct or common scheme or
plan” under § 1B1.3(a)(2). See United States v. Wilson, 106
F.3d 1140, 1144 (3d Cir. 1997); United States v. Taylor, 97 F.3d
1360, 1363 (10th Cir. 1996). Parts one and two are clearly met.
Blackmon pled guilty to the charged cocaine conspiracy and the
PSR grouped the conspiracy and money laundering counts,
which Blackmon does not appeal.


                               23
        Part three requires some discussion.                 Under
§ 1B1.3(a)(2), relevant conduct for drug offenses includes “not
only all controlled substances involved ‘during the commission
of the offense of conviction,’ but also those substances involved
as ‘part of the same course of conduct or common scheme or
plan as the offense of conviction.’” United States v. Boone, 279
F.3d 163, 178 (3d Cir. 2002) (quoting U.S.S.G. § 1B1.3(a)(2)).
Application Note 9 of § 1B1.3 describes what comprises a
“common scheme or plan” or the “same course of conduct” for
relevant conduct. Id. App. Note 9(A)–(B). Subpart (A)
describes a “common scheme or plan” as being “substantially
connected” by at least one common factor, including common
accomplices, common purpose, or similar modus operandi. Id.
Subpart (B) describes the “same course of conduct” as
“sufficiently connected or related to each other,” and involves
factors such as the degree of similarity in offenses, the regularity
or number or repetitions, and the time interval between offenses.
Id.

       In this case, there is no question that the cocaine
distribution (which was part of the sting transaction) and the
overarching cocaine conspiracy involved a common scheme or
plan. Notwithstanding the five-month lag between the August
2006 sting transaction and Williams’ March 2006 arrest in
Philadelphia, the former involved common accomplices and
similar methods of operating (i.e., modus operandi). The
Government points out that “the defendant’s one-kilogram
shipment in the sting transaction involved the exact same pattern
of Federal Express shipments, the same would-be customer

                                24
[Williams], the same $15,000 price per kilogram, and the same
geographic scope as the earlier cocaine conspiracy.” Thus, we
agree with the District Court’s finding that the sting transaction
was connected to the drug conspiracy for purposes of calculating
the Guidelines range.

                        CONCLUSION

       We hold that relevant conduct under Sentencing
Guidelines § 1B1.3 is a relevant consideration for sentencing
judges when calculating the base offense level for direct money
launderers under § 2S1.1(a)(1). Blackmon does not appeal the
District Court’s finding that between 50 and 150 kilograms of
cocaine were involved in the drug conspiracy. Thus, 36 was the
correct base offense level for the money laundering count. See
U.S.S.G. § 2D1.1(c)(2). Nor does he appeal the District Court’s
two-level specific offense enhancement under § 2S1.1(b)(2)(B)
for pleading guilty under 18 U.S.C. § 1956. Accordingly, the
District Court’s final overall offense level calculation of 35,
which included a three level deduction for acceptance of
responsibility, was proper. In this context and for the reasons
noted above, we affirm the sentence imposed by the District
Court.




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