IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60606
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLIFTON ANDERSON, JR. Defendant-Appellant.
Appeal from the United States District Court For the Northern District of Mississippi (2:96-CR-85-1-S)
September 24, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Clifton Anderson appeals the sentence imposed by the district
court following his guilty plea conviction of extortion under color
of official right in violation of 18 U.S.C. § 1951 and conducting
and attempting to conduct a financial transaction affecting
interstate commerce involving property represented by law
enforcement officers to be proceeds of unlawful activity in
violation of 18 U.S.C. § 1956. Because we find that the district
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. court committed plain error in refusing to group the offenses we
vacate Anderson’s sentence and remand for resentencing. We reject
Anderson’s other arguments, however.
I
Clifton Anderson, an officer with the Mississippi Highway
Patrol, arranged with Wyatt Williams, a local drug dealer, to set
up a sham “arrest” of a drug courier traveling by automobile.
Anderson would stop the vehicle and seize the drugs, then later
Anderson would return the drugs to Williams, who would, true to
form, deal the drugs. Williams was to give a portion of the
proceeds to Anderson. The only flaw in this ingenious scheme was
that Williams was acting as a confidential informant for law
enforcement officials.
Williams told Anderson that a drug courier, accompanied by
Williams, would travel from Memphis, Tennessee to Greenville,
Mississippi with one kilogram of cocaine. Williams provided a
description of their car and the timing of their trip. The two
agreed that Anderson’s share of the proceeds would be $12,000. The
stop occurred on the evening of July 26, 1996. Williams was
accompanied by an officer of the Mississippi Bureau of Narcotics
posing as the drug courier.
Anderson stopped the vehicle and asked the “courier” if he had
any drugs. The “courier” responded that he did, and Anderson took
2 the “cocaine,” which was in fact a dummy package containing only
sugar. Anderson was armed with his state issued firearm during
this entire exchange. After taking the package, Anderson ordered
Williams out of the car and when Williams acted as if to flee the
scene, Anderson drew his firearm and threatened to shoot Williams.
Anderson eventually allowed Williams and the “courier” to leave
without arresting them.
On July 27, 1996, Anderson gave the package back to Williams,
who was to sell the cocaine and remit half of the proceeds to
Anderson. Williams gave Anderson $500 as partial payment at this
time. Anderson received further wired payments from Williams of
$500 and $2,500 on August 8 and August 21, 1996, respectively.
These payments were represented by Williams as proceeds of the sale
of the “cocaine.”
II
We review a district court’s interpretation and application of
the sentencing guidelines de novo.1 We review findings of fact for
clear error.2
Anderson first contends that the district court erred in
applying a two-level sentencing enhancement for possession of a
1 United States v. Henderson, 254 F.3d 543, 543 (5th Cir. 2001). 2 Id.
3 dangerous weapon, in this case his service firearm.3 A two-level
sentence enhancement may be applied if the district court finds by
a preponderance of the evidence that the defendant possessed a
dangerous weapon during the commission of a drug offense.4
Anderson argues that since he was required to carry a firearm by
virtue of his employment as a Mississippi Highway Patrol officer
his sentence cannot be enhanced solely because of his possession of
the firearm.
While we have previously found that possession of a dangerous
weapon cannot be inferred solely from the fact that the defendant
is a law enforcement officer,5 we also have held that possession of
a firearm by a law enforcement officer in the commission of an
offense, if established by a preponderance of the evidence, allows
for a two-level enhancement.6 Anderson had his firearm with him
when he made the traffic stop, when he forced the courier to hand
over the “cocaine” and when he threatened Williams. While Anderson
argues that the extortion had been completed by the time he used
the firearm to threaten Williams, use is not required for the
enhancement, merely possession. The fact that carrying a firearm
was required by Anderson’s employment does not mean it did not aid
3 See U.S.S.G. § 2D1.1(b)(1).
4 United States v. Siebe, 58 F.3d 161, 162 (5th Cir. 1995). 5 Id. at 162. 6 United States v. Marmolejo, 106 F.3d 1213, 1215 (5th Cir. 1997).
4 him in his extortion efforts. Anderson utilized his position as a
law enforcement officer to extort the cocaine and “any incidence of
that position which further facilitated the [crime] should properly
be taken into account at sentencing.”7 Anderson has not borne his
burden of proving that it is “clearly improbable” that his firearm
was connected to the offense.8
III
Next Anderson argues that the district court erred in
determining the offense level based upon one kilogram of cocaine
because the package Anderson actually seized contained only sugar.
When extortion is committed for the purpose of aiding in the
commission of another offense, the guidelines direct the court to
apply the greater of the offense level for extortion and the
offense level applicable to a conspiracy to commit that second
offense.9 In this case the court applied the offense level for a
conspiracy to distribute one kilogram of cocaine.10
These facts are squarely controlled by Application Note 12 to
U.S.S.G. § 2D1.1, which states:
7 Id. at 1217. 8 U.S.S.G. § 2D1.1(b)(1) App. n. 3 (“The adjustment should be applied unless it is clearly improbable that the weapon was connected with the offense.”) 9 U.S.S.G. § 2C1.1(c)(1). 10 U.S.S.G. § 2D1.1.
5 “In an offense involving an agreement to sell a controlled substance, the agreed-upon quantity of the controlled substance shall be used to determine the offense level unless the sale is completed and the amount delivered more accurately reflects the scale of the offense.... In contrast, in a reverse sting, the agreed-upon quantity of the controlled substance would more accurately reflect the scale of the offense because the amount actually delivered is controlled by the government, not the defendant.”11
This case involves a reverse-sting. Anderson believed that he was
threatening a “drug courier” in order to obtain one kilogram of
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60606
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLIFTON ANDERSON, JR. Defendant-Appellant.
Appeal from the United States District Court For the Northern District of Mississippi (2:96-CR-85-1-S)
September 24, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Clifton Anderson appeals the sentence imposed by the district
court following his guilty plea conviction of extortion under color
of official right in violation of 18 U.S.C. § 1951 and conducting
and attempting to conduct a financial transaction affecting
interstate commerce involving property represented by law
enforcement officers to be proceeds of unlawful activity in
violation of 18 U.S.C. § 1956. Because we find that the district
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. court committed plain error in refusing to group the offenses we
vacate Anderson’s sentence and remand for resentencing. We reject
Anderson’s other arguments, however.
I
Clifton Anderson, an officer with the Mississippi Highway
Patrol, arranged with Wyatt Williams, a local drug dealer, to set
up a sham “arrest” of a drug courier traveling by automobile.
Anderson would stop the vehicle and seize the drugs, then later
Anderson would return the drugs to Williams, who would, true to
form, deal the drugs. Williams was to give a portion of the
proceeds to Anderson. The only flaw in this ingenious scheme was
that Williams was acting as a confidential informant for law
enforcement officials.
Williams told Anderson that a drug courier, accompanied by
Williams, would travel from Memphis, Tennessee to Greenville,
Mississippi with one kilogram of cocaine. Williams provided a
description of their car and the timing of their trip. The two
agreed that Anderson’s share of the proceeds would be $12,000. The
stop occurred on the evening of July 26, 1996. Williams was
accompanied by an officer of the Mississippi Bureau of Narcotics
posing as the drug courier.
Anderson stopped the vehicle and asked the “courier” if he had
any drugs. The “courier” responded that he did, and Anderson took
2 the “cocaine,” which was in fact a dummy package containing only
sugar. Anderson was armed with his state issued firearm during
this entire exchange. After taking the package, Anderson ordered
Williams out of the car and when Williams acted as if to flee the
scene, Anderson drew his firearm and threatened to shoot Williams.
Anderson eventually allowed Williams and the “courier” to leave
without arresting them.
On July 27, 1996, Anderson gave the package back to Williams,
who was to sell the cocaine and remit half of the proceeds to
Anderson. Williams gave Anderson $500 as partial payment at this
time. Anderson received further wired payments from Williams of
$500 and $2,500 on August 8 and August 21, 1996, respectively.
These payments were represented by Williams as proceeds of the sale
of the “cocaine.”
II
We review a district court’s interpretation and application of
the sentencing guidelines de novo.1 We review findings of fact for
clear error.2
Anderson first contends that the district court erred in
applying a two-level sentencing enhancement for possession of a
1 United States v. Henderson, 254 F.3d 543, 543 (5th Cir. 2001). 2 Id.
3 dangerous weapon, in this case his service firearm.3 A two-level
sentence enhancement may be applied if the district court finds by
a preponderance of the evidence that the defendant possessed a
dangerous weapon during the commission of a drug offense.4
Anderson argues that since he was required to carry a firearm by
virtue of his employment as a Mississippi Highway Patrol officer
his sentence cannot be enhanced solely because of his possession of
the firearm.
While we have previously found that possession of a dangerous
weapon cannot be inferred solely from the fact that the defendant
is a law enforcement officer,5 we also have held that possession of
a firearm by a law enforcement officer in the commission of an
offense, if established by a preponderance of the evidence, allows
for a two-level enhancement.6 Anderson had his firearm with him
when he made the traffic stop, when he forced the courier to hand
over the “cocaine” and when he threatened Williams. While Anderson
argues that the extortion had been completed by the time he used
the firearm to threaten Williams, use is not required for the
enhancement, merely possession. The fact that carrying a firearm
was required by Anderson’s employment does not mean it did not aid
3 See U.S.S.G. § 2D1.1(b)(1).
4 United States v. Siebe, 58 F.3d 161, 162 (5th Cir. 1995). 5 Id. at 162. 6 United States v. Marmolejo, 106 F.3d 1213, 1215 (5th Cir. 1997).
4 him in his extortion efforts. Anderson utilized his position as a
law enforcement officer to extort the cocaine and “any incidence of
that position which further facilitated the [crime] should properly
be taken into account at sentencing.”7 Anderson has not borne his
burden of proving that it is “clearly improbable” that his firearm
was connected to the offense.8
III
Next Anderson argues that the district court erred in
determining the offense level based upon one kilogram of cocaine
because the package Anderson actually seized contained only sugar.
When extortion is committed for the purpose of aiding in the
commission of another offense, the guidelines direct the court to
apply the greater of the offense level for extortion and the
offense level applicable to a conspiracy to commit that second
offense.9 In this case the court applied the offense level for a
conspiracy to distribute one kilogram of cocaine.10
These facts are squarely controlled by Application Note 12 to
U.S.S.G. § 2D1.1, which states:
7 Id. at 1217. 8 U.S.S.G. § 2D1.1(b)(1) App. n. 3 (“The adjustment should be applied unless it is clearly improbable that the weapon was connected with the offense.”) 9 U.S.S.G. § 2C1.1(c)(1). 10 U.S.S.G. § 2D1.1.
5 “In an offense involving an agreement to sell a controlled substance, the agreed-upon quantity of the controlled substance shall be used to determine the offense level unless the sale is completed and the amount delivered more accurately reflects the scale of the offense.... In contrast, in a reverse sting, the agreed-upon quantity of the controlled substance would more accurately reflect the scale of the offense because the amount actually delivered is controlled by the government, not the defendant.”11
This case involves a reverse-sting. Anderson believed that he was
threatening a “drug courier” in order to obtain one kilogram of
cocaine. The fact that this was extortion rather than a direct
purchase by Anderson is irrelevant—it adds only a layer of
complexity that § 2C1.1(c)(1) addresses.
Anderson also argues that this presents a scenario factually
analogous to those cases dealing with drug mixtures.12 We
disagree—a reverse-sting is an altogether different beast.
IV
Finally, both Anderson and the Government agree that the
district court erred in refusing to group the two offenses for
11 See also United States v. Perez De Dios, 237 F.3d 1192, 1195 (10th Cir. 2001) (holding that agreed-upon quantity should be used to determine base offense level in reverse-sting operation where defendant received only a “dummy” package containing a small amount of drugs). 12 See, e.g., United States v. Levay, 76 F.3d 671, 673 (5th Cir. 1996) (holding that where mixture must be separated before controlled substance can be used that only actual weight of controlled substance in mixture should be used for calculating a sentence).
6 sentencing purposes.13 Specifically, Anderson notes first that he
was sentenced pursuant to the drug offense guidelines because his
extortion was for the purpose of facilitating distribution of
cocaine. Then, in sentencing for money laundering, the court added
a three-level enhancement for Anderson’s knowledge that the funds
were proceeds from illegal drug activity. We agree with Anderson
and the Government in concluding that these two offenses should
have been grouped pursuant to U.S.S.G. § 3D1.2(c) and the
precedents of this Court.14 While Anderson did not make this
argument before the district court, and therefore our review is for
plain error,15 we find that error here is clear, and affects the
defendant’s substantial rights, because it resulted in an increased
sentence.16
We will not correct plain error unless it seriously affects
“the fairness, integrity or public reputation of judicial
proceedings.”17 “Generally, when a trial court incorrectly applies
13 U.S.S.G. § 3D1.2. Failure to group the two counts in this case resulted in a total offense level of 28 instead of 27. Anderson was sentenced to 96 months based upon a total offense level of 28—grouping the counts would have provided for a maximum sentence of 87 months. 14 United States v. Rice, 185 F.3d 326, 328-29 (5th Cir. 1999) (holding that money laundering offense and drug offense should have been grouped because three level enhancement for illegal drug proceeds was applied to money laundering offense).
15 United States v. Salter, 241 F.3d 392, 394 (5th Cir. 2001).
16 United States v. Alderholt, 87 F.3d 740, 744 (5th Cir. 1996). 17 United States v. Olano, 507 U.S. 725, 736-37 (1993). See also United States v. Miranda, 248 F.3d 434, 443 (5th Cir. 2001).
7 the United States Sentencing Guidelines, as it did here, the
fairness, integrity, or public reputation of judicial proceedings
is seriously affected.”18 We find here that the failure to group
Anderson’s offenses for sentencing purposes requires that he be
resentenced.
V
For the aforementioned reasons we VACATE Anderson’s sentence
and REMAND to the district court for resentencing.
18 United States v. Alarcon, No. 00-50071, 2001 WL 871776 at *5 (5th Cir. Aug. 1, 2001).