       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206
   ELECTRONIC CITATION: 2000 FED App. 0052P (6th Cir.)
               File Name: 00a0052p.06


UNITED STATES COURT OF APPEALS
              FOR THE SIXTH CIRCUIT
                _________________


                                ;
                                 
     Nos. 97-6493;
                                 
   98-5019/5341/5343
                                 
UNITED STATES OF AMERICA, 
                                      Nos. 97-6493;

                                 
                                      98-5011/5012/
            Plaintiff-Appellee/ >
              Cross-Appellant 
                                      5015/5016/5017/

              (98-5019/5343), 
                                      5018/5019/5341/

                                 
                                      5343/5435

                                 
                                 
           v.
                                 
ANDY L. SWINEY, JR.              
                                 
                                 
(97-6493); GEORGIA BELLE

                                 
MULLINS, a/k/a Georgia B.

       Defendants-Appellants/ 
Isaacs (98-5341),

              Cross-Appellees. 
                                 
                                 
                                 
                                 
                                 
    Nos. 5011/5012/5015/
                                 
    5016/5017/5018/5435

UNITED STATES OF AMERICA, 
           Plaintiff-Appellant, 
                                 
                                 
                                 
           v.
                                 

                           1
2   United States v.  Nos. 97-6493; 98-5011/5012/ 5015/
    Swiney, et al. 5016/5017/5018/5019/5341/5343/5435


                              
                              
 RANDY GLENN ISAACS;
                              
 RONNIE WAYNE ISAACS;
                              
 JUAN DURAN-GUZMAN;
 VANESSA DALE BOOKER;         
                              
                              
 WENDY MESSER; MICHAEL

                              
 DAVID GUY; NELSON

       Defendants-Appellees. 1
 MILLETT,




        Appeal from the United States District Court
    for the Eastern District of Tennessee at Greeneville.
      No. 97-00007—Thomas G. Hull, District Judge.
          Argued and Submitted: August 12, 1999
            Decided and Filed: February 14, 2000
 Before: NORRIS and SUHRHEINRICH,     Circuit Judges;
              WEBER*, District Judge.
                     _________________
                           COUNSEL
ARGUED: Dan R. Smith, ASSISTANT UNITED STATES
ATTORNEY, Johnson City, Tennessee, David L. Leonard,
LEONARD & KERSHAW, Greeneville, Tennessee, for
Appellants. William L. Ricker, RICKER LAW OFFICE,
Greeneville, Tennessee, David B. Hill, Newport, Tennessee,
for Appellees. ON BRIEF: Dan R. Smith, ASSISTANT
UNITED STATES ATTORNEY, Johnson City, Tennessee,

    *
     The Honorable Herman J. Weber, United States District Judge for
the Southern District of Ohio, sitting by designation.
Nos. 97-6493; 98-5011/5012/5015/  United States v. 3
5016/5017/5018/5019/5341/5343/5435 Swiney, et al.

Clifton L. Corker, Johnson City, Tennessee, David L.
Leonard, LEONARD & KERSHAW, Greeneville, Tennessee,
for Appellants. William L. Ricker, RICKER LAW OFFICE,
Greeneville, Tennessee, Laura D. Perry, PERRY & PERRY,
Morristown, Tennessee, C. Todd Chapman, KING & KING,
Greeneville, Tennessee, R.B. Baird III, LAW OFFICES OF
R.B. BAIRD III, Rogersville, Tennessee, Douglas L. Payne,
Greeneville, Tennessee, David B. Hill, Newport, Tennessee,
Dan R. Smith, ASSISTANT UNITED STATES
ATTORNEY, Johnson City, Tennessee, for Appellees.
Michael David Guy, Morgantown, West Virginia, pro se.
                        _________________
                            OPINION
                        _________________
   SUHRHEINRICH, Circuit Judge. Defendants Georgia
Belle Mullins and Andy Lee Swiney, two members of a
heroin conspiracy, appeal on various grounds their jury
convictions and sentences. The Government cross appeals
Mullins’ and Swiney’s sentences. The Government also
appeals the sentences of seven other Defendants who pleaded
guilty to conspiracy to distribute heroin.1 The Government
argues that all of the Defendants should have received a
statutory mandatory minimum of twenty years pursuant to 21
U.S.C. § 841(b)(1)(C) and U.S.S.G. § 2D1.1(a) because a
death resulted from the use of heroin that was distributed by
members of the conspiracy. The district court found no proof
linking these Defendants to the death, using a “critical


    1
      By order dated June 12, 1998, the Court consolidated for purposes
of briefing and submission the appeals filed by plaintiff, the United States
of America, Case Nos. 98-5011, 98-5012, 98-5015, 98-5016, 98-5017,
98-5018 and 98-5435. This Court also consolidated the appeals and
cross-appeals filed by Defendants Andy Swiney and Georgia Belle
Mullins and Plaintiff United States of America, Case Nos. 97-6493, 98-
5019, 98-5341 and 98-5343. Argument was set for the same day with the
same panel.
4   United States v.  Nos. 97-6493; 98-5011/5012/ 5015/         Nos. 97-6493; 98-5011/5012/5015/  United States v. 17
    Swiney, et al. 5016/5017/5018/5019/5341/5343/5435           5016/5017/5018/5019/5341/5343/5435 Swiney, et al.

proximate cause” inquiry. The Government contends that all      enhancement of 21 U.S.C. § 841(b)(1)(C) and U.S.S.G.
of the Defendants should be held accountable for    the death   § 2D1.1(a), the district court must find that he or she is part of
under the Pinkerton theory of vicarious liability.2             the distribution chain that lead to Phillips’ death. Cf.
                                                                Robinson, 167 F.3d at 831 (observing that § 1B1.3(a)(1)(B)
  We reject the Government’s theory of accountability           was satisfied where the defendant delivered drugs to a co-
because the scope of conduct for which a defendant can be       conspirator, who then in furtherance of the conspiracy
held accountable under the Sentencing Guidelines is narrower    delivered the drugs to a third party who died from use of the
than the conduct encompassed by conspiracy law. However,        drugs; evidence showed that the defendant intended that the
we agree that the district court misapplied the Sentencing      drugs be distributed, which “was the very purpose of the
Guidelines. We therefore REVERSE and REMAND for                 conspiracy” (dicta)).
further proceedings.
                                                                  Defendants’ remaining arguments are without merit.
                            I. Background
                                                                                        III. Conclusion
  On January 22, 1997, a grand jury returned a twenty-four
count indictment charging twelve individuals with conspiracy       For the foregoing reasons, the district court’s ruling
to distribute heroin in Mountain City, Tennessee and related    regarding 21 U.S.C. § 841(b)(1)(C) and U.S.S.G. § 2D1.1(a)
drug charges. Included were Defendants Michael Isaacs; his      is REVERSED; Defendants’ sentences are VACATED and
ex-wife Georgia Belle Mullins; their sons, Ronnie, Randy,       the cases are REMANDED for resentencing in accordance
Johnny, and Stevie Isaacs; Andy Lee Swiney; David Guy;          with this opinion.
Wendy Messer; Vanessa Booker; Nelson Millet; and Juan
Duran-Guzman.
 Nine defendants pleaded guilty to the conspiracy charge, of
whom seven now appeal. A jury convicted Michael Isaacs,
Swiney, and Mullins of conspiracy and related charges.
                             A. The Trial
   The Government proved at trial that Michael Isaacs, the
leader of the conspiracy, Mullins, Ronnie Isaacs, Randy
Isaacs, and Swiney arranged for members of the conspiracy to
travel from Mountain City to Philadelphia, Pennsylvania to
purchase heroin from Defendants Nelson Millett and Juan
Duran-Guzman, for resale in Mountain City. Michael Isaacs
would then give the heroin to his distributors. Generally,


    2
        See Pinkerton v. United States, 328 U.S. 640 (1945).
16 United States v.  Nos. 97-6493; 98-5011/5012/ 5015/            Nos. 97-6493; 98-5011/5012/5015/  United States v. 5
   Swiney, et al. 5016/5017/5018/5019/5341/5343/5435              5016/5017/5018/5019/5341/5343/5435 Swiney, et al.

   Furthermore, we perceive no difficulty in reconciling the      heroin customers would contact Mullins, who would have her
mandatory minimum language of § 841(b)(1)(C) and                  sons Johnny Isaacs and Stevie Isaacs deliver the heroin.
§ 1B1.3(a)(1)(B). In fact, a number of circuits have applied
the foreseeability analysis of the relevant conduct provision        Several of the pleading Defendants testified at the trial.
to the calculation of drug quantities for purposes of             Randy Isaacs, Guy, Booker, and Messer all attested to making
mandatory minimum sentences under 21 U.S.C. §§ 841(b)(1)          trips to Philadelphia for Michael Isaacs to buy heroin for
and 846. See, e.g., United States v. Ruiz, 43 F.3d 985, 992 &     resale in Mountain City.
n.16 (5th Cir. 1995); United States v. Castaneda, 9 F.3d 761,
769-70 (9th Cir. 1993); Irvin, 2 F.3d at 75-78; United States       The Government also established that, as charged in Count
v. Young, 997 F.2d 1204, 1210 (7th Cir. 1993); United States      9 of the indictment, a death resulted from the conspiracy’s
v. Martinez, 987 F.2d 920, 923-26 (2d Cir. 1993); United          sale of heroin. Chad Rankin testified that on September 14,
States v. Jones, 965 F.2d 1507 (8th Cir. 1992). We adopt the      1996, he and his friend Kristopher Phillips traveled to
reasoning of these courts. See Irvin, 2 F.3d at 78 (noting that   Mountain City to buy heroin. Rankin indicated that he and
“the guidelines were created pursuant to the Sentencing           Phillips bought five bags for $150. Both Phillips and Rankin
Reform Act of 1984, 28 U.S.C.A. §§ 991-998 (West Supp             used the heroin purchased, and Phillips died that night of a
1993) and that the individual guidelines, including the           heroin overdose. Rankin testified that Johnny Isaacs sold
reasonable foreseeability test as set forth in the relevant       them the heroin.
conduct section, have been accepted by Congress. Thus, two
distinct congressionally approved sentencing schemes, the           Michael Glenn Isaacs was convicted at trial of distributing
mandatory minimum approach and the sentencing guidelines,         heroin, aided and abetted by Johnny Isaacs. It is undisputed
are presently in place, two schemes that should be reconciled     that Johnny’s sale of heroin resulted in Phillips’s death.
to the extent legitimate and practical.”); Martinez, 987 F.2d
at 925-26 (surveying legislative history 21 U.S.C. § 846,                           B. The Plea Agreements
amended in 1988; holding that the Guidelines, in the tradition
of conspiracy law since Pinkerton, require reasonable               Ronnie Isaacs, Randy Isaacs, Guy, Messer, Booker, Duran-
foreseeability for conspiracy liability; a result which is not    Guzman, and Millett each pleaded guilty to conspiracy to
inconsistent with § 846, which only requires that a conspirator   possess with intent to distribute heroin, in violation of 21
be sentenced to the same penalty applicable to the underlying     U.S.C. § 846. In return, the Government agreed to move at
conduct). We therefore hold that Pinkerton principles, as         sentencing for the dismissal of the additional counts in the
articulated in the relevant conduct guideline, U.S.S.G.           indictment. Each of the pleading Codefendants stipulated to
§ 1B1.3(a)(1)(B), determine whether a defendant convicted         an "agreed factual basis" outlining his or her role in the
under 21 U.S.C. § 846 is subject to the penalty set forth in 21   conspiracy as part of his or her plea agreement.
U.S.C. § 841(b)(1)(C).                                              Each plea agreement acknowledged the statutory sentencing
  On remand, the district court is directed to determine          range from a five-year minimum to a forty-year maximum
whether Johnny Isaacs’ distribution of heroin was “reasonably     and recited a factual basis for the plea detailing the particular
foreseeable” as defined in U.S.S.G. § 1B1.3(a)(1)(B) and          misconduct of each Defendant. The stipulated facts indicate
commentary to any of these Defendants. In other words,            that each Defendant knew that he or she was part of an
before any of the Defendants can be subject to the sentence       agreement to distribute heroin. None of the plea agreements
                                                                  or agreed factual bases for these seven Defendants referred to
6   United States v.  Nos. 97-6493; 98-5011/5012/ 5015/           Nos. 97-6493; 98-5011/5012/5015/  United States v. 15
    Swiney, et al. 5016/5017/5018/5019/5341/5343/5435             5016/5017/5018/5019/5341/5343/5435 Swiney, et al.

the actual delivery of heroin to Kristopher Phillips or his         applying the enhanced sentence, the district court must
death. None of the plea agreements referred to a mandatory          find that death resulting from the use of a drug
minimum twenty years for a resulting death.                         distributed by a defendant was a reasonably foreseeable
                                                                    event. . . . The statute puts drug dealers and users on clear
                       C. Sentencing                                notice that their sentence will be enhanced if people die
                                                                    from using the drugs they distribute. . . . Where serious
   Neither the presentence reports of the pleading Defendants       bodily injury or death results from the distribution of
nor Swiney’s and Mullin’s presentence reports enhanced the          certain drugs, Congress has elected to enhance a
sentences to reflect the death. The Government objected to          defendant’s sentence regardless of whether the defendant
each of the reports, contending that a death resulted from the      knew or should have known that death will result. We
use of heroin distributed by members of the conspiracy. In          will not second-guess this unequivocal choice.
addendums to the presentence reports, the probation officer
acknowledged that Phillips died of a heroin overdose during       Id. at 145 (footnote omitted). The court also rejected the
the course of the conspiracy, but determined that                 defendants’ analogy to drug conspiracy cases, in which the
enhancements under U.S.S.G. § 2D1.1(a)(2) were not                defendants are sentenced according to the quantity of drugs
appropriate.                                                      reasonably foreseeable to each defendant as required under
                                                                  U.S.S.G. § 1B1.3(a)(1)(B). See id. at 145. See also
  The district court held Johnny Isaacs responsible for           Robinson, 167 F.3d at 830-31 (rejecting the defendant’s
Phillips’ death under § 841(b)(1)(C) and § 2D1.1. The             argument the district court must find that the defendant’s
district court refused to impose the heightened base offense      conduct was the proximate cause of a death before imposing
level for any of the other Defendants, however, finding no        the twenty-year mandatory minimum found in 21 U.S.C.
proof linking the heroin which caused Kristopher Phillips’        § 841(B)(1)(C); relying on Patterson’s “plain language”
death to any of these nine defendants.                            analysis).
  The Government challenges this ruling as applied to all            We do not find Patterson persuasive. As the Patterson
nine Defendants before this Court. Although Swiney and            court itself pointed out, the defendants’ conduct –
Mullins raise other issues in their respective appeals, we find   distributing, and aiding and abetting in the distribution of,
them without merit and in no need of further discussion.          morphine and meperidine – was encompassed within the
                                                                  subsection (A) of § 1B1.3(a)(1), which does not require8a
                         II. Analysis                             finding of reasonable foreseeability. See id. at 145-46.
                                                                  Subsection (B) of § 1B1.3(a)(1) was not even at issue. Thus,
                  A. Standard of Review                           Patterson’s remarks are dicta.
  Several of the Defendants challenge the Government’s right
to appeal, claiming that the sentences imposed were within
                                                                      8
the district court’s discretion and within the Guidelines.             Subsection (A) includes as relevant conduct
However, the Government has a limited right to appeal an                  (A) all acts and omissions committed, aided, abetted,
otherwise final sentence if the sentence was imposed as a                 counseled, commanded, induced, procured, or willfully
result of an incorrect application of the Sentencing                      caused by the defendant . . . that occurred during the
                                                                          commission of the offense.
Guidelines. See 18 U.S.C. § 3742(b).                              U.S.S.G. § 1B1.3(a)(1)(A).
14 United States v.  Nos. 97-6493; 98-5011/5012/ 5015/                        Nos. 97-6493; 98-5011/5012/5015/  United States v. 7
   Swiney, et al. 5016/5017/5018/5019/5341/5343/5435                          5016/5017/5018/5019/5341/5343/5435 Swiney, et al.

proximate cause” of the death. Under this test, the district                    We review a sentencing court’s interpretation of the
court found6 no proof that any acts or omissions of these                     Sentencing Guidelines and sentencing statutes de novo and its
Defendants were the proximate cause of Phillips’ death.7                      factual findings for clear error. See United States v.
                                                                              Robinson, 167 F.3d 824, 830 (3d Cir. 1999 ), cert. denied,
  The district court erred in not applying the reasonable                     120 S. Ct. 118 (1999); United States v. Flowers, 55 F.3d 218,
foreseeability analysis of U.S.S.G. § 1B1.3(a)(1)(B). The                     220 (6th Cir. 1995) United States v. Irvin, 2 F.3d 72, 76 (4th
Government’s position is somewhat closer to the mark                          Cir. 1993).
because it employs Pinkerton. Yet it fails to limit the
Pinkerton theory of liability in the sentencing context, as                              B. Mandatory Enhancement
required by the Guidelines.
                                                                                All of the Defendants before this court were convicted of
  In support of its position the Government cites United                      conspiracy under 21 U.S.C. § 846, which provides: “[a]ny
States v. Patterson, 38 F.3d 139 (4th Cir. 1994). There, one                  person who attempts or conspires to commit any offense
of the defendants pleaded guilty to unlawful distribution of a                defined in this subchapter shall be subject to the same
controlled substance which resulted in a death, in violation of               penalties as those prescribed for the offense, the commission
21 U.S.C. § 841(a)(1), and the other defendant pleaded guilty                 of which was the object of the attempt or conspiracy.” Here,
to aiding and abetting in that offense, in violation of 18                    the object of the conspiracy was possession with the intent to
U.S.C. § 2 and 21 U.S.C. § 841(a)(1). The defendants argued                   distribute heroin. See 21 U.S.C. § 841(a)(1). Thus, under
that the Government was required to prove that the death was                  § 846, Defendants are subject to the same penalties as a
the intended or foreseeable result of their distribution of                   person who actually violates § 841. See United States v.
controlled substances under 21 U.S.C. § 841(b)(1)(C). See                     O’Brien, 52 F.3d 277, 278 (9th Cir. 1995); Irvin, 2 F.3d at 75;
id. at 144-45. The Fourth Circuit rejected the argument:                      United States v. Montoya, 891 F.2d 1273, 1293 (7th Cir.
                                                                              1989).
    Quite simply, the plain language of § 841(b)(1)(C)
  does not require, nor does it indicate, that prior to                          Section 841(b) prescribes the penalty for violations of
                                                                              § 841(a). The district court sentenced Johnny Isaacs under
                                                                              § 841(b)(1)(C). It provides that “if death or serious bodily
feet thanks to phrases such as ‘shall be unlawful,’ . . . which draw a        injury results from the use of such substance” distributed in
provision to its close.”’ Id. (citations omitted).                            violation of § 841(a)(1), such person “shall be sentenced to a
     Section 841, in contrast with § 2119, draws clear distinctions between   term of not less than twenty years or more than life.” 21
the prohibited conduct, see 21 U.S.C. § 841(a), and the penalty. See          U.S.C.A. § 841(b)(1)(C) (West 1999). Further, U.S.S.G.
§ 841(b).                                                                     § 2D1.1(a)(2) assigns a base offense level of 38 “if the
    6                                                                         defendant is convicted under 21 U.S.C. § 841(b)(1)(A),
     Michael Isaacs died prior to sentencing, so the district court did not   (b)(1)(B), or (b)(1)(C) . . .[and] death or seriously bodily
assess whether he would be subject to 21 U.S.C. § 841(b)(1)(C) and
U.S.S.G. § 2D1.1(a).                                                          injury resulted from the use of the substance . . . .”
                                                                              U.S.S.G.§ 2D1.1(a)(2) (1998).
    7
      The district court derived this test from United States v. Homrich,
59 F.3d 171, 1995 WL 390286 (6th Cir. 1995) (unreported per curiam);             The Government argues that under the Pinkerton doctrine
United States v. Nelson, 920 F. Supp. 825 (M.D. Tenn. 1996); and United       all of the Defendants are responsible for Phillips’ death. In
States v. Patterson, 38 F.3d 139 (4th Cir. 1994).
8    United States v.  Nos. 97-6493; 98-5011/5012/ 5015/          Nos. 97-6493; 98-5011/5012/5015/  United States v. 13
     Swiney, et al. 5016/5017/5018/5019/5341/5343/5435            5016/5017/5018/5019/5341/5343/5435 Swiney, et al.

Pinkerton v. United States, 328 U.S. 640 (1946), the Supreme        instances, make differing determinations among co-
Court held that a co-conspirator may be vicariously liable for      conspirators. If the Pinkerton rule of conviction liability
the substantive offense committed by coconspirator if the act       were strictly mirrored at sentencing, the result might be
is done “in furtherance of the conspiracy” and is “reasonably       different.
foreseen as a necessary or natural consequence of the
unlawful agreement.” Id. at 647-48; United States v. Myers,       William W. Wilkins & John R. Steer, Relevant Conduct: The
102 F.3d 227, 237 (6th Cir. 1996); see also Paul Marcus,          Cornerstone of the Federal Sentencing  Guidelines, 41 S.C. L.
Criminal Conspiracy Law: Time To Turn Back From An Ever           Rev. 495, 508-10 (1990).4 Thus, it is clear that the
Expanding Ever More Troubling Area, 1 Wm. & Mary Bill             Sentencing Guidelines have modified the Pinkerton theory of
Rts. J. 1, 7 (1992) (observing that the Pinkerton theory is one   liability so as to harmonize it with the Guidelines’ goal of
of imputed causation; “it permits the government to hold a        sentencing a defendant according to the “seriousness of the
defendant criminally liable for all reasonably foreseeable acts   actual conduct of the defendant and his accomplices.” Id. at
of co-conspirators regardless of actual knowledge, intent, or     502.
participation”). Thus, if the Government is correct, all of the
Defendants would be liable for Phillips’ death because it is        The district court did not apply the Guideline test set out in
reasonably foreseeable that someone will die after using          U.S.S.G. § 1B1.3(a)(1)(B). Instead, it created its own test and
heroin distributed by the conspiracy.                             held that in order for the enhancement to apply, the
                                                                  Government    had to establish by a preponderance of the
   The Government’s argument ignores the Sentencing               evidence5 that the defendant’s conduct was “the critical
Guideline’s treatment of conspiracy.               U.S.S.G.
§ 1B1.3(a)(1)(B) (“Relevant Conduct (Factors that Determine
the Guideline Range”)) provides that the base offense level           4
                                                                          See supra, note 3.
shall be determined by considering the following:
                                                                      5
    [I]n the case of a jointly undertaken criminal activity (a          The district court held that 21 U.S.C. § 841(b) is an enhancement
                                                                  provision rather than a substantive offense. Although Defendants do not
    criminal plan, scheme, endeavor, or enterprise                challenge this ruling on appeal, we nonetheless observe that Jones v.
    undertaken by the defendant in concert with others,           United States, 526 U.S. 227 (1999), does not require a different result.
    whether or not charged as a conspiracy), all reasonably       Jones involved the carjacking statute, 18 U.S.C. § 2119. Section 2119
    foreseeable acts and omissions of others in furtherance of    states that a defendant convicted of carjacking shall be imprisoned not
    the jointly undertaken criminal activity,                     more than fifteen years and “if death results,” be imprisoned for up to life.
                                                                  119 S. Ct. 1218 (quoting the statute). In a 5-4 decision, the Supreme
                                                                  Court held that these factors (seriously bodily injury and death) were
    that occurred during the commission of the offense of         offense elements rather than sentencing factors. See id. at 1228.
    conviction.                                                   Significantly, the majority invoked the doctrine of “constitutional doubt”
                                                                  whereby a statute susceptible of two constructions should be interpreted
U.S.S.G. § 1B1.3(a)(1)(B). Application Note 2 provides in         to avoid “grave and doubtful constitutional questions.” Id. at 1222-28
relevant part:                                                    (quotations and citations omitted). The Jones majority emphasized two
                                                                  points. First, the carjacking statute was unlike “some statutes [that] come
                                                                  with the benefit of provisions straightforwardly addressing the distinction
    In the case of a jointly undertaken criminal activity,        between elements and sentencing factors.” Id. at 1219. Second, the
    subsection (a)(1)(B) provides that a defendant is             carjacking statute was “unlike most offense-defining provisions in the
                                                                  federal criminal code, which genuinely stand on their own grammatical
12 United States v.  Nos. 97-6493; 98-5011/5012/ 5015/          Nos. 97-6493; 98-5011/5012/5015/  United States v. 9
   Swiney, et al. 5016/5017/5018/5019/5341/5343/5435            5016/5017/5018/5019/5341/5343/5435 Swiney, et al.

  Moreover, in a 1990 article, William W. Wilkins, Chairman       accountable for the conduct (acts and omissions) of
of the United States Sentencing Commission, and John R.           others that was both:
Steer, General Counsel for the Commission, explained:
                                                                    (i) in furtherance of the jointly undertaken criminal
  The remaining portion of the “otherwise accountable”              activity; and
  definition in Application Note 1 refers to conspiratorial-        (ii) reasonably foreseeable in connection with that
  type activity within the realm of what is commonly                criminal activity.
  referred to as the “Pinkerton” rule. Two key points
  should be noted. First, the guidelines specifically employ         Because a count may be worded broadly and include
  this doctrine to cover any “criminal activity undertaken        the conduct of many participants over a period of time,
  in concert with others, whether or not charged as a             the scope of the criminal activity jointly undertaken by
  conspiracy.”                                                    the defendant (the “jointly undertaken criminal activity”)
                                                                  is not necessarily the same as the scope of the entire
     A second key point regarding construction of the             conspiracy, and hence relevant conduct is not
  “otherwise accountable” language in concerted activity          necessarily the same for every participant. In order to
  situations is that this rule is a sentencing rule and not       determine the defendant’s accountability for the conduct
  necessarily co-extensive with the Pinkerton rule of co-         of others under subsection (a)(1)(B), the court must first
  conspirator liability. Thus, in determining the outer           determine the scope of the criminal activity the
  limits of the attribution dimension under this aspect of        particular defendant agreed to undertake (i.e., the scope
  Relevant Conduct, courts should focus on the language           of the specific conduct and objectives embraced by the
  in Application Note 1 addressing conduct of others that         defendant’s agreement). The conduct of others that was
  was “within the scope of the defendant’s agreement”’ or         both in furtherance of, and reasonably foreseeable in
  “in furtherance of the execution of the of the execution of     connection with, the criminal activity jointly undertaken
  the jointly-undertaken criminal activity” or “that was          by the defendant is relevant conduct under this provision.
  reasonably foreseeable by the defendant . . . in                The conduct of others that was not in furtherance of the
  connection with the criminal activity the defendant             criminal activity jointly undertaken by the defendant, or
  agreed to jointly undertake.”’ As the note further              was not reasonably foreseeable in connection with that
  explains, in a broad conspiracy the relevant conduct            criminal activity, is not relevant conduct under this
  considered in constructing the guideline range may not          provision.
  be the same for every defendant in the conspiracy,
  although each may be equally liable for conviction under      Id. cmt. n.2. (emphasis added). In short, under the Sentencing
  Pinkerton.                                                    Guidelines, a defendant is accountable for the conduct of
                                                                other conspirators only if that conduct was (1) reasonably
    This potential differentiation among co-conspirators is     foreseeable to him and (2) in furtherance of the jointly
  consistent with the multiple purposes of sentencing           undertaken criminal activity. See United States v. Jenkins, 4
  articulated in the Sentencing Reform Act. . . .               F.3d 1338, 1346 (6th Cir. 1993) (interpreting prior version of
         ....                                                   § 1B1.3 and comment).
    Thus, in applying the Relevant Conduct guideline, the
  Commission intended that courts would, in necessary
10 United States v.  Nos. 97-6493; 98-5011/5012/ 5015/           Nos. 97-6493; 98-5011/5012/5015/  United States v. 11
   Swiney, et al. 5016/5017/5018/5019/5341/5343/5435             5016/5017/5018/5019/5341/5343/5435 Swiney, et al.

   We have observed in an analogous context that “the scope        helpfully and precisely contrasts that standard with the
of conduct for which a defendant can be held accountable           broader standard applicable only to conviction for the
under the sentencing guidelines is significantly narrower than     conspiracy offense itself. When the relevant conduct
the conduct embraced by the law of conspiracy.” United             guideline speaks of “all acts and omission . . . for which
States v. Okayfor, 996 F.2d 116, 120 (6th Cir. 1993) (quoting      the defendant would be otherwise accountable . . . that
United States v. Lanni, 970 F.2d 1092, 1093 (2d Cir. 1992)         otherwise were in furtherance of the offense,” Sentencing
(quoting United States v. Perrone, 936 F.2d 1403, 1416 (2d         Guidelines, § 1B1.3(a)(1), it calls to mind the Pinkerton
Cir. 1991)) (holding that for Sentencing Guidelines purposes,      standard, which holds a conspirator liable, in some
a defendant is chargeable for a co-conspirator’s drug              circumstances, for substantive offenses committed by a
transactions if they were known to him or reasonably               co-conspirator.     The Commission has apparently
foreseeable to him under U.S.S.G. § 1B1.3(a)(1), 1B1.3, cmt.       recognized the force of the Pinkerton analogy since it has
n.2))). In Lanni, which we cited with approval in Okayfor,         limited sentencing for relevant conduct of “others in
the Second Circuit explained:                                      furtherance of jointly-undertaken criminal activity” to
                                                                   conduct that was reasonably foreseeable “by the
  As we previously have recognized, an important                   defendant.” Id., comment. (n.1). See United States v.
  distinction exists between the criminal law standard for         Joyner, 924 F.2d 454, 458-59 (2d Cir. 1991) (section
  convicting a defendant of conspiracy and the Guidelines          1B1.3 commentary reflects Pinkerton standard); see also
  standard for sentencing a defendant convicted of                 United States v. Andrews, 953 F.2d 1312, 1319 (11th Cir.
  conspiracy. Under conspiracy law, a defendant may be             1992) (section 1B1.3 standards “roughly approximate”
  convicted of conspiracy even though he is unaware of all         Pinkerton standards), cert. denied, 505 U.S. 1210 . . .
  the conspiracy’s unlawful aims, as long as he has                (1992).
  knowledge of some of those aims. See United States v.
  Lanza, 790 F.2d 1015, 1022-23 (2d Cir.), cert. denied,               The broader aspect of conspiracy law, permitting
  479 U.S. 861 . . . (1986). The Guidelines’ approach is           conviction of a defendant who knew some but not all the
  narrower than the standard for establishing guilt of the         aims of the conspiracy, see United States v. Lanza, 790
  conspiracy offense itself. A defendant convicted of              F.2d 1015, 1022-23 (2d Cir.), cert. denied, 479 U.S. 861
  conspiracy may be sentenced for relevant conduct                 . . . (1986), applies only to conviction for the conspiracy
  committed by a co-conspirator in furtherance of the              offense itself, and not to vicarious liability for
  conspiracy only if that conduct was reasonably                   substantive offenses committed by a co-conspirator.
  foreseeable by the defendant. See Guidelines § 1B1.3,
  Application Note 1; United States v. Perrone, 936 F.2d         Id. at 1095 (Newman, J., concurring). 3
  1403, 1416 (2d Cir. (footnote omitted), clarified on other
  grounds, 949 F.2d 36 (2d Cir. 1991).
                                                                     3
Lanni, 970 F.2d at 1093. The concurring opinion in Lanni              The court is discussing the pre-November 1, 1992 version of
clarified the point:                                             U.S.S.G. § 1B1.3. Certain material from the commentary was moved to
                                                                 the Guideline itself and “rephrased for greater clarity” in amendment 439.
                                                                 See Julie R. O’Sullivan, In Defense of the U.S. Sentencing Guidelines’
  [I]n describing the narrower standard of guideline             Modified Real-Offense System, 91 NW. U. L. REV. 1342, 1433 n. 111
  sentencing for conspiracy, [the majority opinion]              (1997); U.S.S.G. § 1B1.3, comment. (n.2) (1995); United States v.
                                                                 Jenkins, 4 F.3d 1338, 1346 (6th Cir. 1993).
