15‐94(L) United States v. Natal
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________
August Term, 2016
(Argued: November 22, 2016 Decided: February 23, 2017)
Docket Nos. 15‐94, 15‐1012, 15‐1020
UNITED STATES OF AMERICA,
Appellee,
– v. –
HECTOR NATAL A/K/A BOOM BOOM, HECTOR MORALES
Defendants‐Appellants. _______________
B e f o r e:
KATZMANN, Chief Judge, WINTER, Circuit Judge, and STEIN, District Judge.*
Judge Sidney H. Stein of the United States District Court for the Southern District of *
New York, sitting by designation.
Defendants Hector Natal and Hector Morales appeal from their judgments of conviction and their sentences, imposed by the United States District Court for the District of Connecticut (Arterton, J.). Following a joint jury trial, Natal was convicted of crimes including arson resulting in death, and Morales was convicted of crimes including accessory after the fact to arson, and destruction and concealment of evidence. The district court sentenced, in principal part, Natal to life imprisonment and Morales to 174 months’ imprisonment, and the defendants appealed. This opinion addresses the following issues. First, we hold that testimony concerning how cell phone towers operate must be presented by an expert witness, but that the admission in the instant case of lay opinion testimony on this subject was harmless. Second, we hold that Morales’s conviction for destruction and concealment of evidence must be vacated in light of the intervening Supreme Court case Yates v. United States, 135 S. Ct. 1074 (2015), and that Morales is entitled to de novo resentencing. Third, we direct the district court, at Morales’s resentencing, to group Morales’s three counts of conviction for accessory after the fact pursuant to U.S.S.G. § 3D1.2. Therefore, we REMAND Morales’s case to the district court with instruction to vacate Morales’s count of conviction for destruction and concealment of evidence and to conduct de novo resentencing of Morales. In all other respects, we AFFIRM the judgment of the district court. _______________
MICHAEL J. GUSTAFSON (Sandra S. Glover, on the brief), Assistant United States Attorneys, for Deirdre M. Daly, United States Attorney, District of Connecticut, New Haven, CT.
JESSE M. SIEGEL, Law Office of Jesse M. Siegel, New York, NY, for Hector Natal.
HARRY SANDICK (George LoBiondo and Patricia S. Kim, on the brief), Patterson Belknap Webb & Tyler LLP, New York, NY, for Hector Morales.
PER CURIAM:
In this appeal of judgments of conviction and sentence involving crimes
that include arson resulting in death, accessory after the fact to arson, and
destruction and concealment of evidence, we write to address three issues:
(1) Whether testimony on how cell phone towers operate must be provided by an
expert witness rather than a lay witness;
(2) Whether defendant Morales’s conviction for destruction and concealment of
evidence for re‐painting his van must be vacated in light of the Supreme Court’s
holding in an intervening decision, Yates v. United States, 135 S. Ct. 1074 (2015),
that the statutory provision under which Morales was convicted covers “only
objects one can use to record or preserve information”; and
(3) Whether, in calculating Morales’s Sentencing Guidelines range, Morales’s
convictions for accessory after the fact must be “grouped” pursuant to U.S.S.G.
§ 3D1.2.
The essential factual background of this case is as follows:
On the early morning of March 9, 2011, three members of the Roberson
family – Jaquetta1 Roberson, Quayshawn Roberson, and Wanda Roberson – died
in an intentionally‐caused fire at 48‐50 Wolcott Street in New Haven,
Connecticut. Hector Natal, a neighbor of the Robersons, was charged with arson
resulting in death, and his father, Hector Morales, was charged with being an
accessory after the fact to arson for conduct that allegedly included driving Natal
away from the scene of the fire after Natal started the blaze. Both Natal and
Morales were charged with conspiring to tamper with, and tampering with,
witnesses during law enforcement’s investigation of the arson, including by
seeking to cause witnesses to testify falsely to the grand jury. Additionally,
Morales was charged with destruction and concealment of evidence for re‐
painting the van that he had allegedly used to drive Natal away from the fire.
Natal was also charged with attempted arson for trying to start a fire at the same
1 This spelling of Jaquetta Roberson’s name appears in the indictment, although her name is spelled slightly differently in the government’s appellate brief.
New Haven building in approximately October 2010. 2 Finally, both Natal and
Morales were charged with participation in a drug conspiracy.3
Defendants Natal and Morales were tried jointly in the United States
District Court for the District of Connecticut (Arterton, J.), and on April 18, 2013,
a jury found the defendants guilty on all counts. On January 8, 2015, the district
court sentenced Morales to 174 months’ imprisonment and 36 months of
supervised release. On February 25, 2015, the district court sentenced Natal to
life imprisonment on the arson counts, 240 months on each of the other charges
that went to trial, and 40 years on the conviction resulting from Natal’s guilty
plea to the cocaine possession charge, all to run concurrently. Following the
district court’s entry of judgment, both Natal and Morales timely appealed.
On appeal, the defendants raise numerous claims, including allegations
that Natal’s Confrontation Clause rights were violated at trial, that there was a
2 Unless otherwise indicated, all references to “the fire” or “the arson” refer to the fire started in the early morning of March 9, 2011.
3 Natal was initially indicted on June 23, 2011 on drug‐related charges, and on October
4, 2011, he pled guilty to Count Two of that indictment. Count Two charged Natal with
prejudicial variance between the indictment and the proof at trial, that the
district court erroneously admitted lay opinion testimony concerning the
operation of cell phone towers, that Morales’s conviction for destruction and
concealment of evidence must be vacated in light of an intervening Supreme
Court decision, that Natal’s sentence was imposed in contravention of the Eighth
Amendment, and that the district court’s calculation of Morales’s U.S. Sentencing
Guidelines range was procedurally erroneous. In a case with many issues, the
district court was thorough and meticulous.
We affirm the district court except as to the following claims. First, we
hold that testimony on how cell phone towers operate constitutes expert
testimony and may not be introduced through a lay witness. However, the
admission in the instant case of lay opinion testimony on the operation of cell
phone towers was harmless. Second, we hold that Morales’s conviction for
destruction and concealment of evidence must be vacated in light of the Supreme
Court’s decision in Yates v. United States, 135 S. Ct. 1074 (2015), handed down
possession with the intent to distribute 28 grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).
shortly after Morales filed the instant appeal. We remand Morales’s case to the
district court to vacate Morales’s conviction for destruction and concealment of
evidence, and, pursuant to United States v. Powers, 842 F.3d 177 (2d Cir. 2016), to
conduct de novo resentencing of Morales. Third, as part of the district court’s
calculation of Morales’s Guidelines range at the resentencing, Morales’s three
counts of conviction for accessory after the fact should be grouped pursuant to
U.S.S.G. § 3D1.2. We reject the defendants’ other claims. Consequently, we
uphold all counts of conviction except Morales’s conviction for destruction and
concealment of evidence, and we remand Morales’s case to the district court to
vacate Morales’s conviction for destruction and concealment of evidence and to
resentence Morales de novo.
I. The admission of lay opinion testimony on how cell phone towers operate
Morales and Natal argue that the district court erred in admitting lay
opinion testimony on the operation of cell phone towers instead of requiring this
testimony to be presented by an expert witness. We review the district court’s
evidentiary rulings for abuse of discretion. See United States v. Rosemond, 841 F.3d
95, 107 (2d Cir. 2016). “A district court has abused its discretion if it based its
ruling on an erroneous view of the law or on a clearly erroneous assessment of
the evidence or rendered a decision that cannot be located within the range of
permissible decisions.” United States v. Rowland, 826 F.3d 100, 114 (2d Cir. 2016)
(quoting United States v. Fazio, 770 F.3d 160, 165 (2d Cir. 2014)). However, “[w]e
will reverse only if an error affects a ‘substantial right,’ meaning that the error
‘had a substantial and injurious effect or influence on the jury’s verdict.’” Id. (first
quoting Fed. R. Evid. 103(a); then quoting United States v. Garcia, 413 F.3d 201,
210 (2d Cir. 2005) (internal quotation marks omitted)). “[W]here a court, upon
review of the entire record, is sure that the evidentiary error did not influence the
jury, or had but very slight effect, the verdict and the judgment should stand.” Id.
(quoting Garcia, 413 F.3d at 210) (alteration in original).
“Historical cell‐site analysis,” as the Seventh Circuit recently explained,
“uses cell phone records and cell tower locations to determine, within some
range of error, a cell phone’s location at a particular time.” United States v. Hill,
818 F.3d 289, 295 (7th Cir. 2016). A cell phone connects to a cell phone tower in
order to access the cellular network and communicate with other phones. Id.
“Each cell tower covers a certain geographic area[,]” which “depends upon ‘the
number of antennas operating on the cell site, the height of the antennas,
topography of the surrounding land, and obstructions (both natural and
manmade).’” Id. (quoting Aaron Blank, The Limitations and Admissibility of Using
Historical Cellular Site Data to Track the Location of a Cellular Phone, 18 RICH. J. L. &
TECH. 3, 5 (2011)). “While the proximity of the user is a significant factor in
determining the cell tower with which the cell phone connects,” other factors
also play a role, including structural features of the tower and the phone, as well
as the geography and topography of the surrounding environment. Id. at 295‐96;
see also Matthew Tart et al., Historic Cell Site Analysis – Overview of Principles and
Survey Methodologies, 8 DIGITAL INVESTIGATION 185, 186‐87 (2012).
Here, Natal and Morales attempted to show at trial that Michael Shamash,
the landlord of the New Haven building burned in the arson, was a plausible
alternative suspect in the arson. To counter this theory, the government sought to
introduce evidence that Shamash’s cell phone was connecting to cell phone
towers in Queens, New York, on the night of the fire. In particular, the
government called Joseph Trawicki, an employee of the Sprint Nextel wireless
communications company, to testify regarding Shamash’s cell phone activity.
The district court permitted Trawicki to testify as a Sprint records custodian in
order to explain records showing “what law enforcement relied on in ruling out
Shamash” as a suspect in the arson, and admitted Shamash’s cell phone records
as business records pursuant to Federal Rule of Evidence 803(6). The government
did not seek to show that Trawicki’s testimony satisfied the requirements for
admissible expert testimony under Federal Rule of Evidence 702, and the district
court, over the defendants’ objection, did not require the government to make
this showing.
Trawicki, on the witness stand, explained entries on the Sprint phone
records containing details about the calls in which Shamash’s phone had
participated on the night of the fire (for example, the time and duration of each
call), as well as the location of the cell phone towers to which Shamash’s cell
phone had connected at the beginning and end of each call. When asked about
the factors that would make a phone call “start with one cell tower and end with
another cell [tower],” Trawicki responded:
Your handset is always looking for the strongest available signal, and your handset makes that determination, not the network, not anything else. And your handset, the instant it sees another strong signal that’s stronger than the one it has, it will jump to that signal. That could be movement, it could be radio frequency interference, it could be just a tower that had a better signal that was previously busy becomes available. Based on this information, it’s impossible – just looking at these individual records, it’s impossible to say if there’s movement there or not. . . . It’s just your line of site [sic] to the tower, any radio frequency interference, like that.
Trawicki also indicated that a cell phone will connect to the tower with the
“strongest available signal,” which may not be the closest tower. Trawicki ended
his testimony by stating that a certain cell phone number, which was elsewhere
identified as belonging to Shamash, connected to a tower in Queens at 1:41 a.m.
on the day of the fire. The arson was alleged to have occurred at approximately
1:15 a.m. in New Haven.4
In addition to admitting Trawicki’s testimony as lay testimony, the district
court permitted the government to offer lay testimony from two law enforcement
4 The defense did not cross‐examine Trawicki because, according to defense counsel, the defendants had not realized before trial that the government was planning to call a witness to discuss cell phone tower location data. The government, defense counsel argued, had violated a pretrial understanding that no evidence on cell phone towers
officers, who testified that Shamash had been eliminated as a suspect in the arson
investigation partially because Shamash’s cell phone was shown by his cell
phone records to be in Queens at the time of the fire. One of these law
enforcement officers stated, for example, that Shamash’s “cell phone . . . was
down at [Shamash’s] house bouncing off a cell phone tower.”
On summation, the government drew the following conclusions from the
cell phone tower evidence:
Before we move off the arson, I want to talk briefly about the landlord, the notion the landlord did it, Michael Shamash. Well, we know he was in Queens the night of the fire. And I’ve got these phone records here, which we can zoom in on. . . . And then we know from the representative from Sprint how cell phones work – cell towers, and I’ll direct your attention over to these columns. You get the repoll number and the cell tower number, and you go to another document at the back of the exhibit and you are going to see that the towers that Mr. Shamash was hitting off at the time, around 1:52 and 2:04 a.m., they all come back to 64th Street, Flushing, New York. So, I don’t think there is any dispute that Mr. Shamash was not in New Haven standing outside the door saying should I light it, or words to that effect.
would be offered. See infra for the Court’s conclusion that these claims by the defendants do not warrant a finding of reversible error.
On appeal, the defendants argue that the district court erred in admitting
testimony on cell phone towers, especially the testimony offered by Trawicki,
from a lay witness. Federal Rule of Evidence 701 provides that
[i]f a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
Fed. R. Evid. 701. Federal Rule of Evidence 702, in turn, contains standards for
the admission of expert testimony. See Fed. R. Evid. 702. “Lay opinion under
Rule 701 must be limited to opinions that ‘result[] from a process of reasoning
familiar in everyday life.’” United States v. Cuti, 720 F.3d 453, 459 (2d Cir. 2013)
(quoting Fed. R. Evid. 701 advisory committee’s note, 2000 amend.). “[T]he
purpose of Rule 701(c) is ‘to eliminate the risk that the reliability requirements set
forth in Rule 702 will be evaded through the simple expedient of proffering an
expert in lay witness clothing.’” Bank of China, N.Y. Branch v. NBM LLC, 359 F.3d
171, 181 (2d Cir. 2004) (quoting Fed. R. Evid. 701 advisory committee’s note, 2000
amend.).
The Second Circuit has not yet ruled on whether testimony concerning cell
phone towers requires expertise. We hereby join the Seventh and Tenth Circuits
in holding that testimony on how cell phone towers operate must be offered by
an expert witness. See Hill, 818 F.3d at 296 (“[The witness’s] testimony . . .
included statements about how cell phone towers operate. In our view, this fits
easily into the category of expert testimony, such that Rule 702 governs its
admission.”); United States v. Yeley‐Davis, 632 F.3d 673, 684 (10th Cir. 2011) (“The
agent’s testimony concerning how cell phone towers operate constituted expert
testimony because it involved specialized knowledge not readily accessible to
any ordinary person.”); see also United States v. Reynolds, 626 Fed. App’x 610, 614
(6th Cir. 2015). We need not hold that all evidence related to cell phone towers
necessarily requires expertise. But we caution that the line between testimony on
how cell phone towers operate, which must be offered by an expert witness, and
any other testimony on cell phone towers, will frequently be difficult to draw,
and so both litigants and district courts would be well advised to consider
seriously the potential need for expert testimony.5
In the instant case, Sprint employee Trawicki offered testimony on how
cell phone towers operate when he indicated, for example, that a cell phone will
connect to the tower with the strongest available signal, which may not be the
closest tower; that factors such as radio interference, tower availability, and the
line of sight between a phone and a tower affect the tower to which a cell phone
connects; and that the phone handset determines which signal is strongest. At
least these aspects of Trawicki’s testimony did not “‘result[] from a process of
reasoning familiar in everyday life.’” Cuti, 720 F.3d at 459 (quoting Fed. R. Evid.
701 advisory committee’s note, 2000 amend.). They were, instead, “based on
scientific, technical, or other specialized knowledge within the scope of Rule
702.” Fed. R. Evid. 701(c). Therefore, the government in the instant case
introduced testimony that required expertise through a lay witness.
5 In this case, asking the jury to draw the conclusion that Shamash could not have been in New Haven because his cell phone was using a tower in Queens required testimony on the possible ranges of any relevant cell phone towers and how they operate, which required expertise.
However, the admission here of lay opinion testimony on how cell phone
towers operate was harmless and not reversible error. “The principal factors” in
the harmless error “inquiry are ‘the importance of the witness’s wrongly
admitted testimony’ and ‘the overall strength of the prosecution’s case.’” United
States v. Dukagjini, 326 F.3d 45, 62 (2d Cir. 2002) (quoting Wray v. Johnson, 202
F.3d 515, 526 (2d Cir. 2000)). Here, the government’s case against the defendants’
theory that Shamash had committed the arson was not based solely on evidence
concerning Shamash’s cell phone; an FBI agent testified at trial that Shamash was
ruled out as a suspect partly on the basis of witness accounts that Shamash was
in New York on the night of the fire, and a New Haven police officer testified
that Shamash was ruled out partly because, in law enforcement’s view, Shamash
had no financial motive to set the fire.
More significantly, the prosecution presented a very strong case against
the defendants. Government witnesses testified that Natal admitted to them that
he started the fire, including in a tape‐recorded conversation that was played for
the jury. One of these witnesses testified that Morales told her that he had driven
Natal away from the fire. A neighbor of Natal and Morales testified that she saw
the defendants driving away from 48‐50 Wolcott Street in Morales’s van on the
night of the fire. The same neighbor also described previous confrontations
between Natal and residents of 48‐50 Wolcott Street. The government also
presented substantial evidence of attempts by Natal and Morales to thwart the
police’s investigation into the crime, including by instructing family members to
testify falsely to the grand jury and by painting Morales’s van a different color
after eyewitness reports surfaced of a blue van leaving the scene of the fire.
Natal and Morales, for their part, offered evidence in opposition to the
government’s case. For example, they highlighted government witnesses’ prior
inconsistent statements, and called their own witnesses, some of whom gave
unfavorable testimony about Shamash. Nevertheless, “upon review of the entire
record,” the Court can be “sure that the evidentiary error did not influence the
jury, or had but very slight effect.” Rowland, 826 F.3d at 114 (quoting Garcia, 413
F.3d at 210). Therefore, we find that the admission of lay opinion testimony on
how cell phone towers operate was harmless and not reversible error.
Relatedly, Natal and Morales argue that the government violated Federal
Rule of Criminal Procedure 16 by not disclosing before trial its intent to offer
expert testimony, and that the district court abused its discretion in not granting
the defendants a continuance that defense counsel sought in order to retain an
expert to assist defense counsel in cross‐examining Trawicki. In light of our
holding that testimony concerning how cell phone towers operate constitutes
expert testimony, we also hold that such testimony is covered by the disclosure
requirements of Federal Rule of Criminal Procedure 16. However, any error
related to Federal Rule of Criminal Procedure 16 or the denial of a continuance
was harmless for the reasons specified above.
II. Morales’s conviction for destruction and concealment of evidence
Morales argues, and the government concedes, that Morales’s conviction
for destruction and concealment of evidence must be vacated in light of the
Supreme Court’s decision in Yates v. United States, 135 S. Ct. 1074 (2015), which
issued after Morales filed his notice of appeal. Morales painted his blue van with
black primer after the fire, and the government alleged that Morales took this
action out of a concern that a blue van had been seen leaving the scene of the fire.
Accordingly, Morales was charged, in Count Eleven of the indictment, with
“knowingly alter[ing] a tangible object, that is, a blue 1994 Dodge Caravan, with
the intent to impede . . . an investigation” in violation of 18 U.S.C. § 1519. The
jury convicted Morales on this count.
The Supreme Court held in Yates, however, that a “tangible object” within
the meaning of the Sarbanes‐Oxley Act, 18 U.S.C. § 1519, covers “only objects one
can use to record or preserve information, not all objects in the physical world.”
Yates, 135 S. Ct. at 1081. Because Morales’s van was not an “object[] one can use
to record or preserve information,” id., Morales’s act of repainting his van is not
covered by 18 U.S.C. § 1519. Indeed, the dissenting opinion in Yates, specifically
referencing the instant case, stated that Morales’s alleged act of “repainting [his]
van to cover up evidence of [a] fatal arson” would, in light of the Yates Court’s
holding, “now fall outside § 1519.” Id. at 1100 (Kagan, J., dissenting). The
plurality opinion in Yates also referred to United States v. Morales and did not
dispute the dissent’s statement that Morales’s conduct would not be covered by
18 U.S.C. § 1519. See id. at 1088 n.8.
Therefore, the Court hereby remands Morales’s case to the district court to
vacate Morales’s conviction for destruction and concealment of evidence (Count
Eleven). Further, this Court has recently confirmed that when a count of
conviction is overturned due to a “conviction error,” the proper remedy is de
novo resentencing, except in circumstances not applicable here. Powers, 842 F.3d
at 179‐81; see also United States v. Rigas, 583 F.3d 108, 117 (2d Cir. 2009).
Consequently, on remand, Morales must be resentenced de novo.
III. The calculation of Morales’s Sentencing Guidelines range
Morales contends that his sentence was procedurally unreasonable
because the district court should have grouped his three counts of conviction for
accessory after the fact in calculating his Guidelines range. To elaborate, Morales
was charged with three counts of being an accessory after the fact to arson. Each
count referred to one of the three arson counts charged against Natal, one for
each of the three victims of the arson. The district court at Morales’s sentencing,
over Morales’s objection, declined to “group” Morales’s three counts of
conviction for accessory after the fact to arson. As a result, the district court
applied the multiple count analysis in U.S.S.G. § 3D1.4 (“Determining the
Combined Offense Level”) without grouping the accessory counts. Morales notes
that if the accessory counts had been grouped, Morales’s Guidelines range would
have been 121‐151 months’ imprisonment, not 168‐210 months’ imprisonment.
The district court sentenced Morales to 174 months’ imprisonment.
“A district court commits procedural error where it . . . makes a mistake in
its Guidelines calculation. . . .” United States v. Cavera, 550 F.3d 180, 190 (2d Cir.
2008) (en banc). “Procedural reasonableness is reviewed for abuse of discretion,”
United States v. Desnoyers, 708 F.3d 378, 385 (2d Cir. 2013), but “[t]he district
court’s interpretation and application of the Sentencing Guidelines is a question
of law, which we review de novo,” United States v. Kent, 821 F.3d 362, 368 (2d Cir.
2016).
We hold that Morales’s counts of conviction for accessory after the fact to
arson must be grouped pursuant to U.S.S.G. § 3D1.2. This provision, titled
“Groups of Closely Related Counts,” states that “[a]ll counts involving
substantially the same harm shall be grouped together into a single Group.
Counts involve substantially the same harm within the meaning of this rule: (a)
When counts involve the same victim and the same act or transaction. . . .”
U.S.S.G. § 3D1.2. Additionally, the application notes to this provision of the
Guidelines state that “[a]mbiguities should be resolved in accordance with the
purpose of this section as stated in the lead paragraph, i.e., to identify and group
‘counts involving substantially the same harm.’” U.S.S.G. § 3D1.2 cmt. n.2
(quoting U.S.S.G. § 3D1.2).
Here, Morales was convicted not of the substantive crime of arson, but of
the “distinct” offense of accessory after the fact, which “is differently punished.”
Bollenbach v. United States, 326 U.S. 607, 611 (1946); see also United States v.
Cabrales, 524 U.S. 1, 7 (1998); United States v. James, 998 F.2d 74, 80 (2d Cir. 1993).
In particular, Morales’s “offense is . . . that of interfering with the processes of
justice.” Wayne R. LaFave, 2 Subst. Crim. L. § 13.6 (2d ed.); see also United States v.
Vidal, 504 F.3d 1072, 1078 (9th Cir. 2007) (“Accessory‐after‐the‐fact liability . . . is
aimed at post‐offense conduct that aids the offender in evading law
enforcement.”), abrogated on other grounds, see Cardozo‐Arias v. Holder, 495 Fed.
App’x 790, 792 n.1 (9th Cir. 2012).
As the Supreme Court of Minnesota stated, in interpreting Minnesota’s
criminal statutes, “accomplices after‐the‐fact come along after the victims have
been harmed and do not further their victimization merely by helping the
principal offenders evade the law.” State v. Skipintheday, 717 N.W.2d 423, 427
(Minn. 2006). Consequently, the Minnesota Supreme Court indicated, the
defendant’s “three counts of being an accomplice after‐the‐fact, all arising from a
single behavioral incident, were not multiple‐victim crimes, and [we]re therefore
not subject to multiple sentences.” Id. at 427. Similarly, Morales’s counts of
conviction for accessory after the fact “involv[ed] substantially the same harm”
under U.S.S.G. § 3D1.2, namely damage to the “administration of justice.” Id. at
425. The “victim” for the purpose of U.S.S.G. § 3D1.2 is hence “the societal
interest that is harmed,” that is, society’s interest in the administration of justice,
and “the societal interests that are harmed” by the conduct giving rise to
Morales’s three convictions for accessory after the fact “are closely related.”
U.S.S.G. § 3D1.2 cmt. n.2. Therefore, these counts should “be grouped together
into a single Group.” U.S.S.G. § 3D1.2. We accordingly direct the district court, in
calculating Morales’s Guidelines range at his resentencing, to group his three
counts of conviction for accessory after the fact pursuant to U.S.S.G. § 3D1.2.
CONCLUSION
We have considered the other claims raised by defendants Natal and
Morales, and we find them to be without merit. Accordingly, we AFFIRM the
judgment of the district court except as to Morales’s conviction for destruction
and concealment of evidence. We REMAND Morales’s case to the district court
to vacate his conviction for destruction and concealment of evidence, and to
conduct de novo resentencing of Morales. We also direct the district court, at
Morales’s resentencing, to group Morales’s counts of conviction for accessory
after the fact pursuant to U.S.S.G. § 3D1.2.