                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                        DEC 15 1997
                                 PUBLISH
                                                                    PATRICK FISHER
              UNITED STATES COURT OF APPEALS                                 Clerk
                       TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

 v.                                                   No. 97-6028

 CLYDE WAYNE MELTON,

       Defendant-Appellant.


                  Appeal from the United States District Court
                     for the Western District of Oklahoma
                            (D.C. No. CR-96-86-A)


On the briefs:

O. Ronald McGee, of O.Ronald McGee & Associates, P.C., Ponca City,
Oklahoma and Kenneth E. Holmes and James A. Schaffer, of Holmes & Schaffer,
Ponca City, Oklahoma, for Defendant-Appellant.

Patrick M. Ryan, United States Attorney and Teresa Black, Assistant U.S.
Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee.



Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.


SEYMOUR, Chief Judge.
      Clyde Wayne Melton pled guilty to one count of conspiracy to violate

federal counterfeiting statutes and was sentenced to twenty-seven months in

prison. On appeal, he contends the district court improperly enhanced his

sentence on the basis of coconspirators’ conduct. We agree, vacate his sentence,

and remand for resentencing. 1



                                        I

      The record of Mr. Melton’s plea proceeding and sentencing reveals the

following undisputed facts. On April 3, 1996, John Delaney, a convicted

counterfeiter, met with Ronnie Sims and Keene Edenfield in Amarillo, Texas, to

discuss a plan to print counterfeit Federal Reserve notes in Oklahoma City. Mr.

Sims agreed to finance the operation and Mr. Edenfield agreed to distribute the

counterfeit money. Mr. Edenfield was a confidential government informant and

notified the Secret Service. Mr. Delaney was put under surveillance, and was

observed making preparations to set up the printing equipment.

      Mr. Delaney recruited Mr. Melton, who agreed to help locate a suitable

building and to loan Mr. Delaney a truck and an employee to help move



      1
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.

                                        -2-
equipment. Agents observed Mr. Delaney and Mr. Melton’s employees

transporting printing equipment to Mr. Delaney’s apartment. Mr. Melton found a

building and the equipment was to be moved into it on May 2, 1996. On May 1

federal agents arrested Mr. Melton and Mr. Delaney after they were observed

removing tracking devices which the agents had placed on their vehicles.

      After his arrest, Mr. Delaney worked actively with the Secret Service to set

up a reverse sting operation in order to further investigate Mr. Sims, the Texas

investor. Pursuant to this operation, the government provided a building, bought

the supplies, and secured a press. The operation ultimately printed over $30

million in counterfeit money, none of which was distributed. Mr. Melton did not

participate in any of this activity. The government admits that Mr. Melton never

had any contact with either Mr. Sims or Mr. Edenfield, and that he had no part in

deciding the amount to be printed during the sting operation.

      The presentence report recommended a sixteen-level increase in Mr.

Melton’s base offense level based on the $30 million in counterfeit bills printed

by the sting operation after his arrest. Mr. Melton objected to the enhancement,

arguing that his role in the conspiracy ended when he was arrested on May 1, and

that he should not be held accountable at sentencing for the amount of money

printed by Mr. Delaney pursuant to the sting.




                                         -3-
      The government originally agreed with Mr. Melton. Counsel for the

government stated at the sentencing hearing that “[f]or all practical purposes, on

May One, when Mr. Melton was arrested, his involvement stopped with this entire

situation.” Aplt. App. at 27. Counsel further stated:

             There’s some confusion as to exactly who said the 30 million
      or what, but all of this was, I think, arrived at after Mr. Melton had
      ceased to be involved with Mr. Delaney. And of course, he had no
      involvement with Sims, the financier of it, nor with the other
      informant . . . , who’s in Texas. . . . And I would submit that Mr.
      Melton didn’t really have anything, no control over it, how they
      arrived at the 30 million, or the supplies or renting of the place. And
      I say quite candidly that the government supplied the place to carry
      out the sting operation . . . , bought the supplies, secured the press.

Id. at 28. Nonetheless, the district court overruled Mr. Melton’s objection and

found that the production of the $30 million in counterfeit funds was part of the

conspiracy and that the printing of a large amount was reasonably foreseeable

even though Mr. Melton did not participate in determining the amount.



                                         II

      We review the sentencing court’s application of the guidelines de novo and

its fact findings under the clearly erroneous standard. United States v. Morales,

108 F.3d 1213, 1225 (10th Cir. 1997). The government bears the burden of

proving by a preponderance of the evidence that the conduct of coconspirators is

to be attributed to the defendant for sentencing purposes. Id. at 1226.


                                         -4-
      Under the guideline applicable to the offense of conspiracy, the base

offense level is determined by the guideline for the substantive offense plus the

adjustments for that guideline which “can be established with reasonable

certainty.” USSG § 2X1.1(a). The base offense level for counterfeiting

violations is nine. Id. § 2B5.1(a). The guideline further provides that if the face

value of the counterfeit items is over $2,000, the offense level is increased by

reference to the table applicable to fraud offenses in USSG § 2F1.1. That table,

in turn, provides that offenses involving $30 million are enhanced sixteen levels.

See USSG § 2F1.1(b)(1)(Q).

      In addition, because Mr. Melton was convicted of conspiracy, the relevant

conduct for sentencing purposes is to be determined by USSG § 1B1.3(a)(1)(B),

applicable to jointly undertaken criminal activity. Under that guideline, Mr.

Melton’s sentence is to be calculated on the basis of “all reasonably foreseeable

acts and omissions of others in furtherance of the jointly undertaken criminal

activity, 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.” Id. (emphasis added). The commentary to this

guideline provides the following guidance in its application.

      The principles and limits of sentencing accountability under this
      guideline are not always the same as the principles and limits of
      criminal liability. Under subsections (a)(1) and (a)(2), the focus is
      on the specific acts and omissions for which the defendant is to be

                                         -5-
      held accountable in determining the applicable guideline range,
      rather than on whether the defendant is criminally liable for an
      offense as a . . . conspirator.

USSG § 1B1.3, comment. (n.1). The commentary further states that

      the scope of the criminal activity jointly undertaken by the defendant
      (the “jointly undertaken criminal activity”) is not necessarily the
      same as the scope of the entire conspiracy, and hence relevant
      conduct is not necessarily the same for every participant. In order to
      determine the defendant’s accountability for the conduct of others
      under subsection (a)(1)(B), the court must first determine the scope
      of the criminal activity the particular defendant agreed to jointly
      undertake (i.e., the scope of the specific conduct and objectives
      embraced by the defendant’s agreement).

Id. comment. (n.2).

      In response to Mr. Melton’s objection to the sixteen-point enhancement

recommended by the presentence report and the government’s comments on the

matter, the court stated at the sentencing hearing

      the Probation Office’s position is essentially that “in for a penny, in
      for a pound;” and as a co-conspirator, an offense for which Mr.
      Melton has entered a plea of guilty, he is responsible for the
      foreseeable consequences of the acts of his coconspirators. I’m not
      aware of any principle that that liability ends so long as the
      conspiracy is set in motion. It doesn’t come to an end merely
      because extrinsic events like an arrest interrupt a particular
      conspirator’s participation. . . . So the objection is overruled with
      respect to the 30 million dollars, and I find that the production of that
      amount was a foreseeable consequence of a conspiracy. No
      particular dollar amount would be foreseeable to Mr. Melton, but it is
      foreseeable that there would be production of counterfeit money in
      large amounts, that’s the very purpose of the conspiracy, and it is
      relevant conduct connected to Mr. Melton because it is a foreseeable
      consequence of the corrupt agreement.


                                         -6-
Aplee. Supp. App. at 24, 28-29.

      Although the court’s statement is somewhat unclear, it reveals two possible

grounds for the court’s conclusion that the sixteen-level enhancement was

appropriate. First, the court apparently believed that the scope of Mr. Melton’s

participation in the conspiracy extended beyond the date of his arrest and that he

was therefore accountable for the final product of the entire conspiracy, i.e., $30

million in counterfeit bills produced by the reverse sting operation. 2 Second, even

if the scope of the criminal activity Mr. Melton agreed to jointly undertake did not

include events subsequent to his arrest, the court might have concluded it was

reasonably foreseeable to Mr. Melton that $30 million of currency would be

produced in the original counterfeiting scheme. 3

      As the commentary quoted above makes clear, “the court must first

determine . . . the scope of the specific conduct and objectives embraced by the

defendant’s agreement.” USSG § 1B1.3, comment. (n.2). In making this

determination, the court must keep in mind that “the scope of the criminal activity

jointly undertaken by the defendant . . . is not necessarily the same as the scope of

the entire conspiracy.” Id.; see also United States v. Williams, No. 91-2183, 1992

WL 129615, at *2-*3 (10th Cir. June 11, 1992) (incorrect application of


      2
          The “in for a penny; in for a pound” rationale.
      3
          The “reasonably foreseeable” rationale.

                                          -7-
guidelines where district court “made no distinction between the scope of

[defendant’s] agreement and that of his coconspirators”). 4 Proper attribution at

sentencing requires the district court to analyze, and make “particularized

findings” about, the scope of the specific agreement the individual defendant

joined in relation to the conspiracy as a whole. See United States v. Thomas, 114

F.3d 228, 255 (D.C. Cir. 1997); United States v. Childress, 58 F.3d 693, 722-23

(D.C. Cir. 1995), cert. denied, 116 S. Ct. 825 (1996).

      The district court failed to make such “particularized findings” and

misapplied the sentencing guidelines by improperly assuming that the scope of the

criminal activity Mr. Melton agreed to jointly undertake was the same as the

scope of the entire conspiracy, including the reverse sting. We need not remand

for further proceedings on the scope of Mr. Melton’s particular agreement,

however, because the facts underlying the determination are undisputed and do

not carry the government’s burden of establishing Mr. Melton’s accountability for

the activity that took place after he was arrested. 5 Mr. Melton agreed to aid the

      4
       In accordance with 10th Cir. R. 36.3, we find this unpublished opinion
persuasive.
      5
        Indeed, at the sentencing hearing, when the court specifically asked the
government to bear its burden of proof and present facts in support of an
adjustment upward based on the $30 million produced in the reverse sting
operation, the government admitted it could not meet this burden. The only facts
it could present to the court were “actually what occurred:” “on May One, when
Mr. Melton was arrested, his involvement stopped with this entire situation,” and
                                                                      (continued...)

                                         -8-
original scheme by providing a truck to help move equipment obtained by Mr.

Delaney and by finding a building for that equipment. After he and Mr. Delaney

were arrested, the original agreement was abandoned and was replaced by a

reverse sting operation which was set up, funded, and equipped by the

government in order to investigate a coconspirator Mr. Melton had never met

through activity to which Mr. Melton never agreed. Mr. Melton was indicted only

for activities that took place from March 1, 1996 to May 1, 1996, the date of his

arrest. He was not indicted for the events of the reverse sting operation. We have

found no indication in the record that the post-arrest metamorphosis of the

original counterfeiting plan was within the scope of the criminal activity Mr.

Melton agreed to undertake. A defendant should not be held accountable when

coconspirators substantially alter the agreed-upon plan without his knowledge or

acquiescence. United States v. Gonzales, 65 F.3d 814, 822-23 (10th Cir. 1995),

vacated on other grounds, 117 S. Ct. 1032 (1997).

      Insofar as the district court’s upward enhancement of Mr. Melton’s

sentence relied on the $30 million produced subsequent to his arrest, the court’s

observation that the printing of a large amount of money was reasonably

foreseeable simply does not inform the issue of the scope of Mr. Melton’s


      5
       (...continued)
“the conspiracy . . . was over at that point with [regard to] him.” Aplt. App. at
27.

                                         -9-
agreement. “[R]easonable foreseeability is not by itself sufficient to establish

liability for the acts of coconspirators. To be considered as relevant conduct,

such acts also must be in furtherance of ‘jointly undertaken criminal activity.’”

United States v. McDuffy, 90 F.3d 233, 236 (7th Cir. 1996); Childress, 58 F.3d at

723 (“[W]ith respect to scope of the agreement analysis, . . . court ‘was actively

employing the wrong legal standard’ by focusing exclusively on reasonable

foreseeability.”) (citation omitted).

      Furthermore, although the district court was correct in noting that a

conspiracy does not end simply because one conspirator has been arrested, the

court failed to address the more relevant and narrow issue of whether the arrest of

a conspirator signals the end of that particular conspirator’s role in the ongoing

conspiracy. Although a conspirator’s arrest or incarceration by itself is

insufficient to constitute his withdrawal from the conspiracy, see United States v.

Nelson, No. 90-3081, 1991 WL 163061, at *12 (10th Cir. Aug. 23, 1991), an

arrest may under certain circumstances amount to a withdrawal. Compare United

States v. Harris, 542 F.2d 1283, 1299, 1301 (7th Cir. 1976) (no withdrawal where

arrested conspirator continued to give orders concerning conspiracy from jail);

United States v. Agueci, 310 F.2d 817, 839 (2d Cir. 1962) (no withdrawal where

arrested conspirator designated others to look after his interest in conspiracy and

continued to have stake in venture) with United States v. Brown, No. 96-3371,


                                         -10-
1997 WL 589180, at *1 (10th Cir. Sept. 24, 1997) (arrest plus agreement to

cooperate with law enforcement officials constituted withdrawal); 6 United States

v. Urrego, 853 F. Supp. 646, 649-50 (E.D.N.Y. 1994) (arrest plus no evidence of

continued involvement in conspiracy amounted to withdrawal); United States v.

Escobar, 842 F. Supp. 1519, 1528 (E.D.N.Y. 1994) (involvement in conspiracy

terminated with arrest where continued participation in conspiracy impossible).

See also United States v. Price, 13 F.3d 711, 732 (3d Cir. 1994) (although arrest

does not automatically bar attribution to defendant of coconspirators’ acts after

that date, “since ‘[t]he relevant conduct provision limits accomplice attribution to

conduct committed in furtherance of the activity the defendant agreed to

undertake,’ a defendant cannot be held responsible for conduct committed after he

or she could no longer assist or monitor his or her coconspirators.”) (quoting

United States v. Collado, 975 F.2d 985, 997 (3d Cir. 1992)). Here, the

government clearly conceded that Mr. Melton’s participation in the conspiracy

terminated with his arrest and that Mr. Melton had absolutely no involvement

with the reverse sting operation which was entirely set up and funded by the

government with the cooperation of Mr. Delaney. Aplt. App. at 27-28. The acts

of Mr. Melton’s fellow conspirators therefore cannot be attributed to him

following his arrest.


      6
          See n.4 supra.

                                        -11-
      Having concluded that Mr. Melton’s role in the conspiracy ended with his

arrest, we now turn to whether it was reasonably foreseeable to Mr. Melton when

he participated in the original scheme that Mr. Sims and Mr. Delaney would agree

to counterfeit a sum of $30 million. The district court must also make

“particularized findings” as to the reasonable foreseeability of the amount of

money attributed to the individual defendant. Thomas, 114 F.3d at 255.

Accordingly, the district court must

      do more than state in “conclusory” terms that the quantity of [money]
      attributed was reasonably foreseeable to the defendant. Rather, the
      judge must “set[] forth the reasons why the particular amount of
      [money] was reasonably foreseeable to him, with reference to the
      evidence before the court.”

Childress, 58 F.3d at 723 (quoting United States v. Edwards, 945 F.2d 1387, 1399

(7th Cir. 1991)). At the sentencing hearing, the district court explicitly stated that

“[n]o particular dollar amount would be foreseeable to Mr. Melton, but it is

foreseeable that there would be production of counterfeit money in large

amounts.” Aplee. Supp. App. at 28. While reasonable estimates based on “the

available information” will suffice in determining the attributable amount of

money under U.S.S.G. § 2F1.1(b), see U.S.S.G. § 2F1.1 comment. (n.8); United

States v. Copus, 110 F.3d 1529, 1535 (10th Cir. 1997), we hold it was clear error

for the court to arbitrarily assign $30 million as the “large amount[]” of




                                         -12-
counterfeit money foreseeable to Mr. Melton absent any factual support for this

particular amount in the record.

      Even if the district court based its finding of reasonable foreseeability on

conversations between Mr. Sims and Mr. Delaney that $30 million was the

amount of the original counterfeiting scheme, Aplt. App. at 4, the court’s

determination was nonetheless clearly erroneous. Courts must examine a

conspirator’s position within a conspiracy and whether that position gave him

firsthand knowledge of the quantity of counterfeit money involved to determine

whether the conduct of other conspirators is reasonably foreseeable to him. See,

e.g., Thomas, 114 F.3d at 257. If, for instance, Mr. Melton was not aware of the

amount of counterfeit money that Mr. Sims and Mr. Delaney agreed to produce,

the district court cannot permissibly conclude that the sum of $30 million was

reasonably foreseeable to Mr. Melton and enhance his sentence based on this

amount. Cf. United States v. Pretty, 98 F.3d 1213, 1222 (10th Cir. 1996) (amount

of money received by coconspirator in bribery conspiracy was reasonably

foreseeable and therefore properly attributed to defendants where the “nature of

the conspiracy was such that each participant almost certainly knew how much

money was going where”), cert. denied, 117 S. Ct. 2436 (1997); United States v.

Chalarca, 95 F.3d 239, 245-46 (2d Cir. 1996) (upholding district court’s

imposition of sentence based upon least amount of cocaine in Sentencing


                                        -13-
Guidelines Drug Quantity Table where record revealed defendant lacked

knowledge of “how much cocaine was the subject of the conspiratorial

agreement”).

       The district court did not make particularized findings as to the reasonable

foreseeability of the amount attributed to Mr. Melton. Nor is there anything in

this record that indicates Mr. Delaney ever discussed with Mr. Melton the amount

originally agreed upon by Mr. Delaney and Mr. Sims, even though Mr. Delaney

provided much information about the conspiracy by cooperating with the

government. Indeed, the government concedes in its brief there is no evidence

Mr. Melton knew of the $30 million sum agreed to by the other conspirators.

Aplee. Br. at 12. Mr. Melton’s lack of knowledge about the amount to be

counterfeited is further supported by the fact that he played a minimal role in the

conspiracy, as the district court held, and had no direct dealings with either Mr.

Sims, the financier, or Mr. Edenfield, the informant. Significantly, the record

reflects that Mr. Delaney misled Mr. Melton about the amount Mr. Delaney was to

receive from Mr. Sims. Mr. Delaney said he was receiving $150,000 for his part

in the scheme and that Mr. Melton would receive $50,000 of this amount for

assisting Mr. Delaney. Mr. Delaney, however, was actually to receive $3 million.

Aplee. Supp. App. at 20. Thus, the only evidence in the record concerning Mr.




                                         -14-
Melton’s knowledge is that he was being misinformed by Mr. Delaney about the

scope of the counterfeiting scheme.

      Accordingly, we conclude the district court misapplied the guidelines by

equating the scope of the criminal activity Mr. Melton agreed to undertake with

the scope of the entire conspiracy. The record contains no evidence that Mr.

Melton agreed to the criminal activity undertaken after his arrest, or that it was

reasonably foreseeable to Mr. Melton the amount of $30 million was the object of

the original counterfeiting scheme. We therefore VACATE the sentence and

REMAND for resentencing in light of this opinion.




                                         -15-
