                Case: 17-12262       Date Filed: 03/17/2020       Page: 1 of 19



                                                                                  [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 17-12262
                               ________________________

                      D.C. Docket No. 8:14-cr-00054-CEH-AAS-2


UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                            versus

ROSA ENEDIA PAZOS CINGARI,
DOMENICO CINGARI,

                                                                   Defendants-Appellants.
                               ________________________

                     Appeals from the United States District Court
                          for the Middle District of Florida
                            ________________________

                                      (March 17, 2020)
Before JORDAN, GRANT, and SILER,* Circuit Judges.
GRANT, Circuit Judge:


*
 Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge of the United States Court of
Appeals for the Sixth Circuit, sitting by designation.
              Case: 17-12262     Date Filed: 03/17/2020   Page: 2 of 19



      Defendants Domenico and Rosa Cingari, a husband and wife who defrauded
hundreds of undocumented aliens into paying about $740,000 for falsified federal

immigration forms, contest their sentences. They say that they should not be
jointly and severally liable for the forfeiture judgment in the amount that they
collected in their scheme; that way, one of them could be liable for some “minimal
amount,” allowing them to pay off that liability and then “live their lives” as “a
happily married couple.” Additionally, they say, they should be sentenced under
the lesser penalty set out for falsifying immigration forms rather than the greater

penalty set out for fraud and deceit. Because the district court committed no plain
error in holding them jointly and severally liable for repaying the proceeds of their
illegal conduct, and because the Sentencing Guidelines direct that they be
sentenced for fraud and deceit, we affirm the judgment of the district court.
                                          I.
                                         A.
      For more than four years, migrant workers and other aliens went to the
Cingaris’ business looking for help getting Florida driver’s licenses. The Cingaris
had apparently mastered the art of obtaining a key Department of Homeland
Security document formally known as a Form I-797C Notice of Action, but
nicknamed “the torch” for its torch watermark. Under Florida law, aliens can use
“the torch” to prove their identity and lawful status for licensing purposes. See Fla.
Stat. § 322.08(2)(c)(8).
      Those coming to the Cingaris for help knew the couple could get them the
document; what they did not know was how the Cingaris did it. To obtain a Form

                                          2
              Case: 17-12262     Date Filed: 03/17/2020     Page: 3 of 19



I-797C, the Cingaris would fill out and mail two other kinds of federal immigration
documents: (1) a Form I-589 application for asylum and withholding of removal,

and (2) a Form I-130, a document used to establish a relationship between a citizen
(or lawful permanent resident) and an alien. Once DHS received these two forms,
it would generally issue a Form I-797C.
      Without the applicants’ knowledge, the Cingaris would often alter the facts
provided in applications. Some falsely reported that an applicant had suffered
persecution, while others manufactured a false identity. Still others lied about the

applicant’s lawful status, residential address, and social security number. On each
fraudulent application, the Cingaris listed their own business address as the
applicant’s mailing address, so that they, rather than the applicant, could
correspond with the federal government. As several applicants would later testify,
they paid the Cingaris to procure the torch document—but would not have done so
if they had known about the couple’s deceptive practices.
      The Cingaris’ scheme left behind hundreds of victims. But it also produced
a small fortune. During the conspiracy, the Cingaris filed forms for more than
1,000 aliens and usually charged $500–$800 per application. Both spouses
fraudulently completed forms, with Domenico personally working on at least 200.
All in all, as a direct result of the fraudulent conspiracy, the victims lost more than
$791,000. Of that, about $740,000 went to the Cingaris, with the remainder going
to immigration attorney fees. Some victims paid a much higher price: several were
deported because the Cingaris—who, you will recall, intercepted all application-



                                           3
              Case: 17-12262     Date Filed: 03/17/2020    Page: 4 of 19



related mail—failed to advise applicants when the federal government demanded
interviews or requested information about an application.

                                          B.
       Domenico and Rosa were tried by jury and convicted of three crimes:
(1) falsifying immigration forms, in violation of 18 U.S.C. §§ 2 and 1546(a);
(2) mail fraud, in violation of 18 U.S.C. §§ 2 and 1341; and (3) conspiracy to do
the same, in violation of 18 U.S.C. § 371.
       For their crimes, the Cingaris were sentenced to prison and held jointly and

severally liable for a money judgment. “Based on the evidence presented at trial,”
the district court found that “the Defendants received criminal proceeds in the
amount of $740,880.00.” Consistent with that conclusion, the court ordered that
“the Defendants shall be held jointly and severally liable for a forfeiture money
judgment in the amount of $740,880.00.” Cf. 18 U.S.C. §§ 982(a)(6) (criminal
asset forfeiture), 981(a)(1)(C) (civil asset forfeiture); 28 U.S.C. § 2461(c) (allowing

forfeiture, including under 18 U.S.C. § 981(a)(1)(C), in criminal proceedings). At
that point, the Cingaris did not object to the imposition of joint and several
liability.

       The district court also sentenced them to prison. The presentence
investigation report (PSR) initially recommended that the Cingaris be sentenced
under § 2L2.1 of the United States Sentencing Guidelines. According to the PSR

calculations, the sentencing range under that guideline was 30–37 months.
       Both the Cingaris and the government objected to portions of the PSR. As
relevant here, Domenico argued that because he played an insignificant role in the

                                           4
              Case: 17-12262     Date Filed: 03/17/2020    Page: 5 of 19



criminal conspiracy, he should receive a minor-role reduction in his sentence. In
arguing for this reduction, Domenico’s trial attorney told the district court that he

supposed that “the money is going into the family coffers,” recognized that “there
really has been no testimony as to . . . how they divided it under the
circumstances,” and conceded that the court could “assume that he did benefit to a
point because he was married to Mrs. Cingari.” Domenico also objected to the
PSR’s factual representation that he had operated the business together with Rosa.
The district court overruled both objections.

      For its part, the government argued that the Cingaris’ sentence should be
calculated under § 2B1.1, rather than § 2L2.1 as suggested in the PSR. Section
2L2.1 applies specifically to the criminal offense of falsifying federal immigration
documents, while § 2B1.1 applies generally to offenses involving deception and
fraud. U.S. Sentencing Guidelines §§ 2L2.1, 2B1.1 (Nov. 2016). Section 2B1.1
would also result in a higher sentencing range for the Cingaris: 168–210 months
for Rosa, and 108–135 months for Domenico. Only that guideline, the government
contended, could account for the totality of the Cingaris’ criminal scheme—their
deception of both the federal government and their victims. The Cingaris
conceded that § 2B1.1 applied, at least as an initial matter, but contended that
§ 2L2.1 was the right provision in the end because of § 2B1.1’s cross reference.
That cross reference, they said, directs the court to apply § 2L2.1 where the
conviction conduct establishes the offense of falsifying immigration forms, an
offense “specifically covered” by § 2L2.1. See U.S.S.G. §§ 2B1.1(c)(3)(C), 2L2.1.



                                           5
               Case: 17-12262     Date Filed: 03/17/2020     Page: 6 of 19



      Agreeing with the government, the Probation Office amended the PSR to
recommend sentencing the Cingaris under § 2B1.1 rather than § 2L2.1. The

district court also agreed with the government, and sentenced the Cingaris within
the higher sentencing range set out in § 2B1.1. “Although making false statements
in the immigration applications [was] certainly a component of the mail fraud
charges,” the district court explained, “the Cingaris’ ultimate goal was to obtain
money from their clients.” The Cingaris now appeal.
                                           II.

      When a party does not object to an issue at sentencing, we review only for
plain error. United States v. Beckles, 565 F.3d 832, 842 (11th Cir. 2009). The
party raising the issue on appeal has the burden to show that “(1) there is an error;
(2) that is plain or obvious; (3) affecting his substantial rights in that it was
prejudicial and not harmless; and (4) that seriously affects the fairness, integrity, or
public reputation of the judicial proceedings.” Id. (punctuation and citation
omitted). We review de novo the interpretation and application of the Sentencing
Guidelines. United States v. Fox, 926 F.3d 1275, 1278 (11th Cir. 2019).
                                           III.

                                           A.
      The Cingaris first argue that the district court erred in holding them jointly
and severally liable. But because they did not raise this issue below, the plain error

standard applies. “As we have repeatedly recognized, an error cannot meet the
‘plain’ requirement of the plain error rule if it is not clear under current law.”



                                            6
                Case: 17-12262        Date Filed: 03/17/2020       Page: 7 of 19



United States v. Castro, 455 F.3d 1249, 1253 (11th Cir. 2006) (per curiam)
(citation omitted). The Cingaris have failed to make this showing.

       As their chief support for the law’s clarity, the Cingaris point to the Supreme
Court’s recent decision in Honeycutt v. United States, 137 S. Ct. 1626 (2017). In
Honeycutt, the Court rejected the idea that a defendant can be jointly and severally
liable under 21 U.S.C. § 853 “for property that his co-conspirator derived from the
crime but that the defendant himself did not acquire.” Id. at 1630. Honeycutt, a
salaried employee at his brother’s store, sold large amounts of a product that the

police had told him could be used to make methamphetamine; he was later
convicted of several drug-related crimes. Id. at 1630. The Court held that he could
not be jointly and severally liable with his brother for the profits from the illegal
sales because § 853 requires forfeiture of “‘any property constituting, or derived
from, any proceeds the person obtained, directly or indirectly, as the result of’
certain drug crimes.” Id. at 1630 (quoting 21 U.S.C. § 853). “Neither the
dictionary definition nor the common usage of the word ‘obtain’ supports the
conclusion that an individual ‘obtains’ property that was acquired by someone
else.” Id. at 1632. And even the government acknowledged that Honeycutt did not

benefit personally from the product’s sale—the profits went to his brother. Id. at
1630–31. 1



1
  Although Honeycutt was decided after the court below imposed joint-and-several liability, we
analyze the plainness of an alleged error “at the time of appellate consideration,” at least when
“the law at the time of trial was settled and clearly contrary to the law at the time of appeal.”
United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005) (citation omitted).


                                                7
                 Case: 17-12262        Date Filed: 03/17/2020        Page: 8 of 19



       But Honeycutt cannot establish that imposing joint-and-several liability here
was an obvious error. Even if we assume that Honeycutt applies to criminal

forfeiture under 18 U.S.C. § 982(a)(6) 2—one of the statutory provisions
authorizing forfeiture here—the Cingaris must also show that it plainly applies to
civil asset forfeiture under 18 U.S.C. § 981(a)(1)(C)—the other provision
independently authorizing forfeiture in this case.3 They cannot. See United States
v. Brown, 947 F.3d 655, 682 (11th Cir. 2020). “Honeycutt was highly dependent
on language found in 21 U.S.C. § 853 but absent from 18 U.S.C. § 981.” Id. That
textual difference, as we recently held, is “fatal” to the plain error argument the
Cingaris advance. Id.4
       Besides, even if Honeycutt applied to both § 982(a)(6) and § 981(a)(1)(C),
the Cingaris have not shown that its analysis plainly applies to them. The Court’s
analysis in Honeycutt turned on the employer–employee relationship: the
employer, as owner of the business, obtained the profits; the salaried employee


2
 We have not applied Honeycutt to § 982(a)(6), but we have applied it to the similarly worded
provision in 18 U.S.C. § 982(a)(7). United States v. Elbeblawy, 899 F.3d 925, 941–42 (11th Cir.
2018).
3
 The civil asset forfeiture statute was at play in this criminal case because of 28 U.S.C.
§ 2461(c). See United States v. Padron, 527 F.3d 1156, 1161–62 (11th Cir. 2008) (“Congress
enacted 28 U.S.C. § 2461(c) . . . to make criminal forfeiture available in every case that the
criminal forfeiture statute does not reach but for which civil forfeiture is legally authorized.”).
4
  Although we conclude that Honeycutt does not obviously extend to at least one of the forfeiture
statutes at issue, we note that the government attempted to expressly waive this argument (while
also setting out other reasons to hold the Cingaris jointly and severally liable). But we cannot
find plain error where none existed simply because one party wishes not to contest the point.
The Cingaris bear the burden to establish plain error, and we will not hold that the district court
plainly erred just because the parties say so. See Beckles, 565 F.3d at 842 (burden is on the party
raising a new issue).
                                                  8
              Case: 17-12262     Date Filed: 03/17/2020    Page: 9 of 19



never saw the fruits of his criminal labor. Here, though, the Cingaris are spouses—
spouses who jointly operated their fraudulent business. And contrary to

Domenico’s argument that he played an insignificant role in the crime, the
evidence demonstrated that he personally worked on at least 200 fraudulent
applications. With this evidence in mind, the district court unsurprisingly ruled
that Domenico did not merit a minor-role reduction in his sentence; Domenico
does not challenge that finding on appeal.
      More to the point, no evidence shows that the married couple split their co-

earned criminal proceeds. In fact, the district court found that “as a result of the
conspiracy and fraud offenses, the Defendants received criminal proceeds in the
amount of $740,880.00.” Although that statement is not necessarily a finding of
joint ownership of the proceeds, in light of the context—a married couple jointly
operating a fraudulent business—the best reading supports that conclusion. Even
Domenico’s trial attorney understood that “the money is going into the family
coffers,” recognized that “there really has been no testimony as to . . . how they
divided it under the circumstances,” and thought the court “can assume that he did
benefit to a point because he was married to Mrs. Cingari.” Under these
circumstances, the Cingaris have failed to establish that they did not mutually
obtain, possess, and benefit from their criminal proceeds. We see no plain error.
                                          B.

      Next, the Cingaris challenge their sentence as procedurally unreasonable,
arguing that the district court’s sentencing calculation was incorrect. See United
States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008) (per curiam). They say

                                           9
             Case: 17-12262      Date Filed: 03/17/2020   Page: 10 of 19



that they should have been sentenced under § 2L2.1, instead of § 2B1.1. Although
their argument requires close consideration, it ultimately fails.

      To calculate an offense level, a district court first “must determine which
offense guideline section covers the offense of conviction.” United States v.
Belfast, 611 F.3d 783, 824 (11th Cir. 2010) (citations omitted). This requires the
court to consult the Sentencing Guidelines Statutory Index, which matches
particular guidelines to specific statutory violations. Id.; see U.S.S.G. app. A.
Section 2B1.1 applies to the Cingaris’ mail-fraud convictions, while § 2L2.1

applies to their immigration-document convictions. For multi-count convictions, a
district court must also group “[a]ll counts involving substantially the same harm.”
U.S.S.G. § 3D1.2. After that, the court must apply the guideline that produces the
highest offense level. U.S.S.G. § 3D1.3. Because the guideline for mail fraud
produced a higher offense level than the guideline for falsifying immigration
documents, the court below applied § 2B1.1.
      But as the Cingaris see it, § 2B1.1 is a beginning rather than an end. They
contend that § 2B1.1’s cross-reference provision applies—and requires that they be
sentenced under § 2L2.1, which covers the offense of falsifying immigration
forms. According to its text, § 2B1.1’s cross reference triggers application of
§ 2L2.1 only if the “conduct set forth in the count of conviction establishes an
offense specifically covered by” § 2L2.1. U.S.S.G. § 2B1.1(c)(3)(C). The

Cingaris say that, luckily for them, the conduct of lying on immigration forms is
specifically covered by § 2L2.1. So that provision—which happens to yield a
much lighter sentence—covers this case (or so they argue).

                                          10
              Case: 17-12262      Date Filed: 03/17/2020      Page: 11 of 19



       The government counters with precedent and Guidelines commentary. It
first leans on our decision in United States v. Baldwin, where we upheld the district

court’s application of § 2B1.1 on facts comparable to those here. 774 F.3d 711,
733 (11th Cir. 2014). The government also points to the language of the
Guidelines commentary, which states that the cross reference applies only when a
defendant’s conduct qualifies as an offense “involving fraudulent conduct that is
more aptly covered by another guideline.” U.S.S.G. § 2B1.1 cmt. n.16.5 We
agree—under those authorities, the district court rightly sentenced the Cingaris
under § 2B1.1.
                                             1.
       Baldwin controls this case. There, we upheld a sentence under § 2B1.1
because we found that it (rather than another guideline) “more aptly fit the
specifics of the crimes committed.” Baldwin, 774 F.3d at 733. One of the
defendants, Belizaire, had participated in a fraudulent scheme to steal victims’

identities, file false tax returns, and obtain and use debit cards loaded with
fraudulent tax refunds. Id. at 720. He pleaded guilty to conspiracy to defraud the
government in violation of 18 U.S.C. § 286. Id. Although that offense was

covered by Guidelines § 2B1.1, Belizaire argued that the district court should have
applied § 2B1.1’s cross reference and sentenced him under § 2T, a provision
specifically addressing fraudulent tax returns. This Court rejected that argument:
“the heart of Belizaire’s scheme was not simply to file fraudulent tax returns,


5
 This language is now in footnote 17 of the most recent Guidelines commentary. U.S.S.G
§ 2B1.1 cmt. n.17 (Nov. 2018).
                                            11
             Case: 17-12262     Date Filed: 03/17/2020   Page: 12 of 19



impede the IRS from collecting taxes, or counsel others to falsify their own
returns.” Id. at 733. Rather, “Belizaire’s goal was to enrich himself by defrauding

the government with entirely fictitious tax returns, and thus the § 2B1.1 guidelines
more aptly fit the specifics of the crimes committed by Belizaire.” Id.
      That case is this case in every meaningful respect. Like in Baldwin, the
“heart” of the Cingaris’ scheme was not simply falsifying federal forms; instead,
their “goal was to enrich” themselves through a fraudulent scheme, cheating aliens
out of several hundred thousand dollars. That much is undisputed. We hold here

as we held there: the “§ 2B1.1 guidelines more aptly fit the specifics of the crimes
committed,” and thus apply.
      Despite the similarities between Baldwin and this case, the Cingaris try to
limit Baldwin by arguing that the opinion seemed to assume, but not actually
decide, that the guideline and commentary were consistent. Not so. Key to our
holding was our determination that the text of § 2B1.1(c) harmonized with its
commentary. As we put it, the “commentary further explains” the text. Id. That
is, our Court decided that the commentary was a consistent explanation of—rather
than in contradiction to—the guideline itself, and then decided the case on that

ground. We could not today hold that the text and commentary were inconsistent
without running headlong into this express determination, effectively overruling
Baldwin.

      The Cingaris’ argument amounts to asserting that Baldwin does not apply
because it did not consider the “inconsistency exception” that prevents the
commentary from being authoritative. To be sure, otherwise authoritative

                                         12
             Case: 17-12262     Date Filed: 03/17/2020    Page: 13 of 19



commentary loses that status if it is “inconsistent with, or a plainly erroneous
reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993). That

said, the Cingaris’ argument is a non-starter. Even if we agreed with their view
that the guideline and commentary were inconsistent, we could not free ourselves
from a binding opinion just because it “failed to consider” an “exception to the
general rule.” Smith v. GTE Corp., 236 F.3d 1292, 1301 (11th Cir. 2001). Doing
so would risk “nullifying the well-established prior panel precedent rule that is an
essential part of the governing law of this Circuit.” Id. at 1302. We therefore

follow Baldwin.
                                          2.
       And even if Baldwin did not bind us, we cannot say that the outcome would
be different. A closer look at the text and commentary of the Guidelines shows
why.
       First, some background on our approach. “To properly interpret the
Sentencing Guidelines, we begin with the language of the Guidelines, considering
both the Guidelines and the commentary.” United States v. Panfil, 338 F.3d 1299,
1302 (11th Cir. 2003) (per curiam) (citations omitted). We have explained that
“the guideline and the commentary must be read together,” because the
commentary may “interpret the guideline or explain how it is to be applied.”
United States v. Ferreira, 275 F.3d 1020, 1029 (11th Cir. 2001) (quotation marks

and citations omitted); Stinson, 508 U.S. at 41 (alteration omitted) (quoting
U.S.S.G. § 1B1.7 (Nov. 1989)). The commentary sometimes requires interpreting
a guideline in a way that “may not be compelled by the guideline text.” Stinson,

                                          13
              Case: 17-12262      Date Filed: 03/17/2020    Page: 14 of 19



508 U.S. at 47. Yet the commentary for a guideline remains authoritative “unless
it violates the Constitution or a federal statute, or is inconsistent with, or a plainly

erroneous reading of, that guideline.” Id. at 38. Courts should thus “seek to
harmonize” a guideline’s text with its commentary. United States v. Genao, 343
F.3d 578, 584 n.8 (2d Cir. 2003) (citation omitted).
      Turning to the text of § 2B1.1, we see that courts must apply some other
guideline only when “the conduct set forth in the count of conviction establishes an
offense specifically covered” by that other guideline. U.S.S.G. § 2B1.1(c)(3)(C).

And at least two conditions must be met to trigger the cross reference: (1) the
conviction conduct must establish some other offense and (2) that offense must be
“specifically covered” by another guideline. But what the language does not state
is whether another guideline must capture all, the core, or only some insignificant
part of the conviction conduct before the cross reference applies.
      The commentary, though, does not leave us guessing on this point. It states
that the cross reference applies only when “the count of conviction establishes an
offense involving fraudulent conduct that is more aptly covered by another
guideline.” U.S.S.G. § 2B1.1 cmt. n.16. In other words, offense conduct matters,
and the cross reference is triggered only if another guideline accounts for it.
      Although the Cingaris zoom in on the phrase “specifically covered” and
contrast it with the commentary’s use of “more aptly covered,” these phrases are
connected to distinct nouns: another offense established must be “specifically
covered” elsewhere, and the conduct “involv[ed]” with that offense must be “more
aptly covered.” It is not as if the conduct-focused approach somehow overrides the

                                           14
             Case: 17-12262     Date Filed: 03/17/2020    Page: 15 of 19



requirement that the offense be specifically covered. Several courts have held that
another guideline specifically covers an offense only when the conduct set forth in

the count of conviction establishes the elements of the offense. See, e.g., United
States v. Bah, 439 F.3d 423, 427 (8th Cir. 2006) (quoting Genao, 343 F.3d at 583).
That is perfectly consistent with requiring that the core fraudulent conduct likewise
be covered. Granted, the commentary’s conduct-focused approach “may not be
compelled by the guideline text,” but neither does the guideline foreclose that
approach. Stinson, 508 U.S. at 47.

      In fact, two structural clues indicate that the commentary’s conduct-focused
reading is not only permissible but also best. First, the Commission designed
§ 2B1.1 to account for harm to victims. For example, the guideline increases the
offense level based on the amount of money victims lost, the number of affected
victims, and whether their loss “resulted in substantial financial hardship.” See
U.S.S.G. § 2B1.1(b)(1)–(2). Although § 2B1.1 would understandably require
sentencing under some other provision that fully captured the relevant harmful
conduct, we doubt the guideline would ignore the core offense conduct for cross-
reference purposes.

      Second, the commentary’s construction accords better with the Sentencing
Guidelines’ efforts to match offense conduct to a proportional sentencing range.
Indeed, the first step in calculating a Guidelines range is to determine the offense

guideline section “applicable to the offense of conviction (i.e., the offense conduct
charged in the count of the indictment or information of which the defendant was
convicted).” U.S.S.G. § 1B1.2(a); see id. § 1B1.1(a)(1). And the Guidelines

                                          15
             Case: 17-12262     Date Filed: 03/17/2020   Page: 16 of 19



presume that cross references “shall be determined on the basis” of “all acts and
omissions committed” by a defendant during a crime and even the acts of others

for certain “jointly undertaken criminal activity.” U.S.S.G. § 1B1.3(a). True,
§ 2B1.1’s cross reference turns on a more limited set of conduct—the “conduct set
forth in the count of conviction.” U.S.S.G. § 2B1.1(c)(3)(C). Still, against the
Guidelines’ general instruction to consider all relevant conduct in determining
whether cross references apply, we would hesitate to conclude that in the case of
this particular guideline only some insignificant part of the conviction conduct

must be covered—even if the commentary had not closed that interpretive door.
      In light of these structural hints, the Cingaris’ reading would produce
strange—if not absurd—results. “The oddity or anomaly of certain consequences
may be a perfectly valid reason for choosing one textually permissible
interpretation over another . . . .” Antonin Scalia & Bryan A. Garner, Reading Law
237 (2012). Suppose, for instance, that the Cingaris had falsified federal
immigration forms, but had done so with the knowledge and assistance of their
customers. In that case, they would have committed the crime of falsifying
immigration forms, but would not have defrauded hundreds of victims. For that
lesser (albeit still serious) crime, the Cingaris would have been sentenced under
§ 2L2.1, the same provision they would have us apply today.
      On the other hand, imagine that the Cingaris found a way to defraud their

victims using mail services, but had not falsified immigration forms. They would
probably be sentenced for mail fraud under § 2B1.1, with its harsher range. But
they would have us impose a lighter sentence here because they committed a

                                         16
             Case: 17-12262     Date Filed: 03/17/2020    Page: 17 of 19



second criminal act of lying on immigration forms. Ordinarily, criminals are not
so lucky as to receive a reduced sentence for piling on more criminal activity.

      We are similarly unpersuaded by the Cingaris’ argument that the guideline’s
text and its commentary are inconsistent. They rely on a Second Circuit case,
United States v. Genao, to show a contradiction. 343 F.3d at 583–84. But that
case does not support their position. In Genao, the Second Circuit held that the
cross reference “is applicable only if the elements of another offense are
established by conduct set forth in the count of conviction.” 343 F.3d at 584.

Although the court noted a “tension” between the text and commentary, that
tension has since been resolved. Id. at 584 n.8. At the time Genao was decided,
the cross-reference’s text applied only if the conduct established “an offense
specifically covered by another guideline”; the commentary also instructed that
cross-reference applied only if the conduct established “an offense more aptly
covered by another guideline.” Id. at 583 & 584 n.8 (emphasis omitted) (quoting
U.S.S.G. § 2B1.1(c)(3) & n.11 (2002)). In other words, both the text and
commentary of the guideline sought to modify the same word—offense—but with
different limiting phrases (“specifically covered” versus “more aptly covered”).

But as explained above, now the text’s “specifically covered” language addresses
the word “offense,” while the commentary’s “more aptly covered” phrase modifies
“conduct.”

      Moreover, that case is the inverse of this one in two respects: there, the
government tried to use the cross reference to attain a higher sentence, using
offense conduct that was insufficient to establish all the elements of the other

                                          17
              Case: 17-12262     Date Filed: 03/17/2020    Page: 18 of 19



guideline. Id. at 583–84. Here, in contrast, the sentence would be lighter if the
cross reference applied, and the offense covered by the alternative guideline is not

broad enough to capture the conduct.
      Nor are we persuaded by the Cingaris’ lenity argument. They rightly
acknowledge that, if both § 2L2.1 and § 2B1.1 apply, the district court should have
applied § 2B1.1. After all, “the guidelines provide a clear solution” when “offense
conduct is covered by both guidelines”—“use the provision that results in the
greater offense level.” Baldwin, 774 F.3d at 733 (quoting U.S.S.G. § 1B1.1 cmt.

n.5)). Still, the Cingaris argue that the rule of lenity applies because reading the
guideline with its commentary creates ambiguity.
      Their contention rests on a shaky assumption: “Whether the rule of lenity
can be applied to the non-statutory advisory Sentencing Guidelines is an open
question upon which this Court has cast doubt.” United States v. Watts, 896 F.3d
1245, 1255 (11th Cir. 2018). At any rate, the Supreme Court has “repeatedly
stated that the rule of lenity applies only if, after seizing everything from which aid
can be derived, we can make no more than a guess as to what Congress
intended”—that is, the court “must conclude that there is a grievous ambiguity or
uncertainty.” Holloway v. United States, 526 U.S. 1, 12 n.14 (1999) (punctuation
and citation omitted); Muscarello v. United States, 524 U.S. 125, 138–39 (1998)
(quotation marks and citation omitted). Interpreting the cross-reference provision
in light of its authoritative commentary does not leave this Court with a mere
“guess” and does not create “a grievous ambiguity or uncertainty.” Far from it.
“Because the Sentencing Commission’s intent is clear, we need not address the

                                          18
             Case: 17-12262     Date Filed: 03/17/2020   Page: 19 of 19



rule of lenity” any further. United States v. Wright, 607 F.3d 708, 713 (11th Cir.
2010).

                                   *     *      *
      In short, the Cingaris’ challenges fail. They cannot show that the district
court plainly erred in holding them jointly and severally liable. Nor can they
convince us that they were wrongly sentenced: our binding precedent and
authoritative Guidelines commentary compel the opposite conclusion. We
AFFIRM the judgment of the district court.




                                         19
