United States Court of Appeals Fifth Circuit F I L E D April 14, 2003 REVISED APRIL 28, 2003 Charles R. Fulbruge III IN THE UNITED STATES COURT OF APPEALS Clerk
FOR THE FIFTH CIRCUIT
No. 02-60285
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES ORIN OGLE,
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Mississippi
Before GARWOOD, SMITH and BARKSDALE, Circuit Judges.
GARWOOD, Circuit Judge:
James Ogle appeals his conviction and sentence for conspiring
to launder monetary instruments and laundering monetary instruments
in violation of 18 U.S.C. §§ 1956(h) and 1956(a)(3)(B), (C). Ogle
was charged in a two-count indictment arising from an agreement to launder money represented to be the proceeds of drug smuggling. He
was subsequently convicted by a jury on both counts and sentenced
to concurrent terms of 121 months’ imprisonment followed by three
years’ supervised release. For the reasons set forth below, we
affirm the conviction, vacate the sentence, and remand for re-
sentencing.
Background
Ogle, an Atlanta businessman, was arrested as part of a
reverse-sting operation conceived and orchestrated by Wendell
Blount, a confidential informant for the United States Customs
Service acting under the direction of Customs Service Special Agent
Michael Tyson. The sting operation began after Blount was directed
by acquaintances to Casey Hemmings as someone “could get some money
cleaned up” for him.
Based on that referral, Blount and Special Agent Tyson agreed
to contact Hemmings with a proposal to launder a fictitious twelve
million dollars in cash that Blount decided to describe to Hemmings
as the proceeds of illegal narcotics smuggling. Upon returning to
Mississippi, Blount contacted Hemmings and arranged to meet him in
a Biloxi hotel room to discuss the proposed transaction. After
arranging for Customs Service surveillance of the meeting, Blount
met Hemmings on March 3, 2001. During that meeting, Blount
revealed the fictitious details of the source of the cash, and
Hemmings, although initially apprehensive about the matter, agreed
2 to handle the proposed money laundering transaction for Blount.1
At their meeting, Hemmings also informed Blount that the
transaction would be handled in part by Hemmings’s business
partner, James Ogle. Hemmings subsequently told Blount that he had
explained the matter to Ogle and that Ogle was entirely receptive
to it.
Following their first meeting, Hemmings continued to contact
Blount to arrange the details of the transaction, and on March 28,
2001, Hemmings introduced Ogle to Blount. At a meeting on March
28th, Ogle presented Blount with a number of proposals for
laundering the fictitious cash, despite only thinly veiled
indications from Blount that the cash represented the proceeds of
narcotics smuggling. Later, when Hemmings, initially a central
figure in the scheme, assumed a less active role following his
arrest on an unrelated matter in Florida, Ogle took over the
planning of the transaction.
After some delay during which Ogle repeatedly telephoned
Blount, pressuring Blount to complete the deal, Ogle and Blount
eventually agreed that Ogle would pick up the cash in the parking
1 Any reluctance to participate in the transaction on Hemmings’s part appeared to be driven less by an unwillingness to engage in illegal activity, and more by a fear of law enforcement and of other risks related to becoming involved, even tangentially, with large-scale narcotics smuggling. Hemmings repeatedly referred to the risk of “being set up,” and at one point during their initial meeting, even insisted on searching Blount; at another point, Hemmings expressed concern that a third party might come looking for the laundered money.
3 lot of a Biloxi, Mississippi, casino. When Ogle arrived in Biloxi
on May 30, 2001, accompanied by an armed escort, to take possession
of the fictitious twelve million dollars, he not only found that
the cash did not actually exist, but also found himself facing
arrest at the hands of a team of Customs agents.
Discussion
Ogle assigns as error three rulings of the district court: the
district court’s refusal to instruct the jury on the defense of
entrapment; the exclusion of the proffered testimony of Ogle’s
expert witness; and the district court’s refusal to consider a
three-level reduction of Ogle’s sentence under the general
conspiracy provision of the sentencing guidelines. We address each
point of error in turn and conclude that only the third, the
calculation of Ogle’s sentence under the guidelines, has merit.
A. Entrapment
Where there is an evidentiary foundation for a theory of
defense that, if credited by the jury, “would be legally sufficient
to render the accused innocent,” it is reversible error to refuse
a charge on that theory. United States v. Schmick, 904 F.2d 936,
943 (5th Cir. 1990). Thus, “when a defendant’s properly requested
entrapment instruction is undergirded by evidence sufficient to
support a reasonable jury’s finding of entrapment, the district
court errs reversibly by not adequately charging the jury on the
theory of entrapment.” United States v. Bradfield, 113 F.3d 515,
4 521 (5th Cir. 1997). Accordingly, we review de novo the refusal to
instruct the jury on the defense of entrapment. Id.
“The critical determination in an entrapment defense is
whether criminal intent originated with the defendant or with the
government agents.” Id. at 521. That the Government provided the
opportunity for Olge to commit the offense of money laundering by
employing a confidential informant and fabricating the existence of
the money to be laundered does not, in itself, entitle Ogle to an
entrapment instruction. “[T]he Government may use undercover
agents to enforce the law,” and “artifice and stratagem may be
employed to catch those engaged in criminal enterprises.” Jacobson
v. United States, 112 S.Ct. 1535, 1540 (1992). Entrapment only
arises, rather, where the Government, in its “zeal to enforce the
law,” “implant[s] in an innocent person’s mind the disposition to
commit a criminal act, and then induce[s] commission of the crime
so that the Government may prosecute.” Id. Before he will be
entitled to an entrapment defense, therefore, the defendant bears
the burden of presenting evidence of both “(1) his lack of
predisposition to commit the offense and (2) some governmental
involvement and inducement more substantial that simply providing
an opportunity or facilities to commit the offense.” Bradfield,
113 F.3d at 521.
After reviewing the record, we conclude that the district
court did not err in refusing an entrapment instruction. We find
5 that Ogle failed to satisfy his initial evidentiary burden,
producing substantial evidence neither of a lack of predisposition
to commit the offense of money laundering, nor of government
actions that amounted to more than simply providing him with the
occasion to launder money.
Ogle does not point to any evidence in the record indicating
a lack of predisposition to engage in money laundering, nor does a
review of the record indicate that Ogle established that he lacked
the necessary predisposition to commit the offense.2 On the
contrary, the uncontradicted record reflects that Ogle, far from
being a reluctant party to the proposed transaction, was a keen
participant in the conspiracy, eager to see the transaction
consummated.3 Ogle arrived at his first meeting with Blount
2 Neither Ogle nor Hemmings testified. Ogle did attempt to introduce the testimony of a financial expert who was prepared to testify that Ogle lacked the positional predisposition to engage in money laundering. As discussed infra, however, the district court properly excluded that testimony and it cannot, therefore, be relied upon to satisfy Ogle’s burden of producing evidence establishing a lack of predisposition. 3 In his brief, Ogle places great weight on the assertion that the Government presented no evidence to show that he knew of the illegal nature of the proposed transaction before meeting Blount in Mississippi. That assertion, even if true, however, does not establish a lack of predisposition. Rather, it merely indicates the extent to which Ogle misapprehends his burden of producing evidence of a lack of predisposition. To say that the Government failed to show that Ogle knew of the putatively illegal source of the funds before meeting with Blount does not demonstrate that Ogle satisfied his initial burden of producing more than a scintilla of evidence of a lack of predisposition. Ogle’s predisposition is a question independent of the question of when he learned that the fictional cash represented the proceeds of unlawful activity.
6 prepared to offer a number of options for laundering the fictional
cash, including a proposal to pay a Turkish diplomat ten percent of
the funds to transport the cash out of the United States and
deposit it in Turkey, and a proposal to pay a development company
that routinely deposited large sums of cash to deposit and then
transfer the illicit funds.4 Such demonstrated knowledge of the
details of international money laundering alone is enough to
establish predisposition. See Reyes, 239 F.3d at 739 (listing a
“demonstrated knowledge or experience with the criminal activity
Moreover, Ogle’s argument that he did not know that the funds were the proceeds of narcotics smuggling evinces a misunderstanding of the mens rea necessary for a conviction under § 1956. A conviction for money laundering does not require that the defendant know the precise source of the illegal funds, but only that the defendant know that the funds are “proceeds of some form of illegal activity.” 18 U.S.C. § 1956(a)(1) (emphasis added); see also § 1956(c)(1) (must know that “the property involved . . . represented proceeds from some form, though not necessarily which form, of activity that constitutes a felony under State, Federal, or foreign law, regardless of whether or not such activity is specified in paragraph (7)”); S.Rep. No. 99- 433, at 12 (1986) (“[T]he defendant need not know exactly what crime generated the funds involved in a transaction, only that the funds are the proceeds of some kind of crime that is a felony under Federal or State law. This will eviscerate the defense that a defendant knew the funds came from a crime, but thought the crime involved was a crime not on the list of ‘specified’ crimes in section (c)(7).”). 4 Ogle’s apparent ease in discussing these various proposals indicates a degree of familiarity with money laundering sufficient to support the conclusion that he was predisposed to engage in money laundering. His reference to the Turkish diplomat’s prior smuggling efforts, for example, suggests that Ogle, even if not having previously engaged directly in the smuggling of currency, was, at a minimum, familiar with the process.
7 under investigation” as one of a number of factors tending to prove
predisposition). The suspect nature of these proposals reflects
that Ogle prepared in advance for the meeting despite at least some
awareness of the nature of the proposed transaction. Moreover,
there is absolutely no evidence that Ogle did not know of the
illegal nature of the proposed transaction before his initial
meeting with Blount. Because, “a defendant’s ready and willing
participation in government-solicited criminal activity, standing
alone, is sufficient to prove predisposition,” this uncontradicted,
unimpeached evidence also provided an adequate basis for the
district court to deny an entrapment instruction. Id. At no point
did Ogle display any hint of hesitation or unwillingness to enter
into the conspiracy. See, e.g., United States v. Fischel, 686 F.2d
1082, 1086 (5th Cir. 1982) (noting that a single act of hesitation,
easily overcome, is insufficient to establish inducement). Rather,
the uncontradicted evidence reflects that Ogle continued to plan
and to pursue aggressively the proposed transaction even after
learning of the illegal source of the cash. Thus, when the
transaction appeared on the verge of foundering, Ogle repeatedly
contacted Blount seeking to revive the deal, calling as often as
six times in as many days. Cf. Bradfield, 113 F.3d at 522–23
(finding that a defendant had made a showing of a lack of
predisposition where it was the government agent, not the
defendant, who called repeatedly seeking to consummate the criminal
8 transaction).
Not only is it clear that Ogle failed to produce evidence of
a lack of predisposition, but he also failed to establish that his
involvement in the proposed money laundering transaction was the
product of government inducement. “The conduct with which the
defense of entrapment is concerned is the manufacturing of crime by
law enforcement officials and their agents.” United States v.
Garcia, 546 F.2d 613, 615 (5th Cir. 1977) (quoting Lopez v. United
States, 83 S.Ct. 1381, 1385 (1963)). Although the Government
initiated contact with Hemmings and may, therefore, be considered
the immediate cause of the conspiracy, there is no substantial
evidence that it was the Government that implanted in Ogle’s mind
the disposition to commit a criminal act. See Jacobson, 112 S.Ct.
at 1540 (1992).
In denying Ogle’s request for an entrapment instruction, the
district court, relying on United States v. Sarmiento, 786 F.2d
665, 667 (5th Cir. 1986), found that Ogle could not, as a matter of
law, have been entrapped, as any inducement to commit the offense
came not from a government actor, but from Ogle’s co-conspirator,
Hemmings. According to the district court, that Ogle “initially
entered into the conspiracy to launder money at the encouragement
of Hemmings and not a government agent effectively barred [Ogle]
9 from raising the entrapment defense.”5 Ogle consequently focuses
his efforts on appeal on refuting the Government’s assertion that
Ogle’s inducement to enter into the conspiracy came from Hemmings
and not from the Government’s informant.
Those efforts, however, are of insufficient effect. Even if
Ogle is correct in his highly questionable assertion that there is
no evidence that he was made aware that the fictitious funds had
some illegal source until he met Blount, that fact, standing alone,
does not suffice to raise entrapment. Hemmings was made aware that
the funds had an illegal source, he thereafter brought Ogle into
the matter, and there is no evidence that Ogle, just before his
initial meeting with Blount, at which Ogle arrived full of
suggestions, was unaware that the funds had an illegal source. It
is Ogle’s burden to raise the entrapment defense. Moreover, even
if there had been evidence that Ogle first learned there was an
illegal source and the purpose of the proposed transaction from the
confidential informant, such evidence would do nothing more than
establish that the Government afforded Ogle with the facilities for
the commission of a crime, a fact that, by itself, does not entitle
Ogle to an entrapment instruction. More is required before a
5 See United States v. Sarmiento, 786 F.2d 665, 668 (5th Cir. 1986) (recognizing that “[t]his circuit has not adopted the ‘unsuspecting middleman’ theory of entrapment” ); United States v. Garcia, 546 F.2d 613, 615 (5th Cir. 1977) (“Entrapment cannot result from the inducements of a private citizen but must be the product of conduct by governmental agents.”).
10 defendant is entitled to an entrapment instruction.
To satisfy his burden of producing evidence of government
inducement, Ogle was required to present not just a smattering or
a scintilla of evidence of government inducement, but substantial
evidence that it was the Government that was responsible for the
formation of Ogle’s intent to join the conspiracy. See Bradfield,
113 F.3d at 521. Ogle points to no such evidence of inducement on
appeal, and an independent review of the record reveals none.
Because we find that Ogle failed to produce substantial
evidence of either government inducement or a lack of
predisposition to commit the crime of money laundering, we find no
error in the district court’s refusal to instruct the jury on the
entrapment defense.
B. Expert Testimony
In his second point of error, Ogle maintains that the district
court erred in excluding both evidence of his general financial
condition as well as the proffered testimony of a defense expert on
the nature of Ogle’s financial position. “[T]he admissibility of
expert testimony is a matter which rests within the broad
discretion of the trial judge and his decision is not to be
disturbed unless it is manifestly erroneous.” United States v.
Lopez, 543 F.2d 1156, 1158 (5th Cir. 1976). We therefore review a
district court’s decision to exclude expert testimony only for an
abuse of discretion. United States v. Triplett, 922 F.2d 1174,
11 1182 (5th Cir. 1991).
At trial, Ogle sought to offer the expert testimony of Shirley
Lindsay, a former IRS Special Agent and fraud examiner. At a
hearing conducted outside the presence of the jury, Lindsay opined
on Ogle’s deteriorating financial situation as it related to his
ability to engage in a large-scale money laundering transaction,
and concluded that, in her estimation, Ogle lacked the “positional
predisposition to commit any crime, let alone money laundering.”
The district court, however, found that the proffered expert
testimony would be of little assistance to the jury, and excluded
it.6 We find no abuse of discretion in that decision.7
6 After listening to Lindsay’s proposed testimony, the district court concluded, “[T]he basis of [Lindsay’s] testimony . . . is rather simplistic. She is saying that [Ogle] could not commit the crime because he was in a financial dilemma. Essentially . . . that’s what Ms. Lindsay is saying. I don’t think that would be of any assistance to the jury.” 7 Ogle also characterizes, for the first time on appeal, the district court’s decision to exclude Lindsay’s testimony as a general prohibition of the introduction of any evidence of Ogle’s financial position. Having set up such a straw man, Ogle then proceeds to tear it down. Specifically, Ogle argues that because it demonstrates that his involvement in the conspiracy was driven not by a predisposition to engage in crime, but by financial pressure, evidence of his deteriorating financial position was relevant to the defense of entrapment and its exclusion was error. A fatal flaw in Ogle’s argument is that the district court never prevented Ogle from introducing general evidence of his financial condition. Ogle offered Lindsay as an expert on the question of positional predisposition, and the court’s ruling was limited accordingly, excluding only Lindsay’s conclusion that Ogle lacked the positional predisposition to commit the offense of money laundering. At no point did Ogle seek to introduce other evidence of his financial straits, as motive for his joining the conspiracy or otherwise, and the district court never
12 The concept of positional predisposition has its origins in
the Seventh Circuit’s opinion in United States v. Hollingsworth, in
which that circuit concluded that the concept of predisposition has
both a positional and a dispositional element. 27 F.3d 1196, 1200
(7th Cir. 1994). To be positionally predisposed to commit a crime,
“[t]he defendant must be so situated by reason of previous training
or experience or occupation or acquaintances that it is likely that
if the Government had not induced him to commit the crime some
criminal would have done so.” Id. The doctrine, however, is a
controversial one, see, e.g., United States v. Thickstun, 110 F.3d
1394, 1398 (9th Cir. 1997) (rejecting the concept of positional
predisposition), and one that we have, thus far, declined to
recognize. See United States v. Reyes, 239 F.3d 722, 742 (5th Cir.
2001); United States v. Wise, 221 F.3d 140, 155–56 (5th Cir. 2000).
As we did in Reyes and in Wise we also find it unnecessary
here to recognize the doctrine of positional predisposition. Even
had Lindsay’s expert opinion testimony been admitted into evidence,
Ogle could still not have established that he was not positionally
predisposed to engage either in a conspiracy to commit money
laundering or to commit the substantive offense of money
laundering.
clearly ruled that it would have excluded such evidence. Thus, Ogle waived any complaint as to exclusion of evidence of his financial condition when he failed to offer any evidence of his financial situation apart from his general tender of Lindsey’s testimony as a whole. See FED. R. EVID. 103(a)(2).
13 It will be the rare case indeed where a defendant can
establish a lack of positional predisposition to join in a
conspiracy, and we can conclude that Ogle’s is not such a case.
Ogle failed to offer any evidence that he was not positionally
predisposed to join in a conspiracy. The gravamen of a conspiracy
is the agreement to engage in unlawful activity, see United States
v. Holcomb, 797 F.2d 1320, 1327 (5th Cir. 1986). Ogle’s supposed
inability actually to himself launder money has little bearing on
his ability to agree to assist in that endeavor. That Ogle by
himself could not personally have laundered the money is,
therefore, no defense to a charge that Ogle conspired with others
to have the money laundered.
Similarly, Lindsay’s testimony would not have been sufficient
to establish that Ogle was not positionally predisposed to commit
the substantive offense of laundering money. Whether Ogle had the
personal financial resources to by himself conduct a large-scale
money laundering transaction is not determinative of the issue of
his positional predisposition to engage in actual money laundering.
Ogle’s positional predisposition to launder money is perhaps
best illustrated by contrasting his situation to that of the
defendants in Hollingsworth. In Hollingsworth, the Seventh Circuit
concluded that the defendants, newcomers to the banking business,
did lack the positional predisposition to launder money.
Hollingsworth, 27 F.3d at 1202. Unlike the defendants in
14 Hollingsworth, a farmer and an orthodontist who were relative
novices in the financial world,8 Ogle was a sophisticated
businessman who, despite having fallen on difficult times, was well
versed in complex financial transactions and was in a position to
take advantage of both his personal experience and the experience
of his business contacts. And although, like Hollingsworth, Ogle
did not have an “up-and-running bank” and may not have had
sufficient assets with which to accomplish the laundering money, he
did have the necessary financial connections and business acumen to
get the money laundered. See, e.g., Hollingsworth, 27 F.3d at 1200
(describing one who is positionally predisposed as one who has the
necessary occupation or acquaintances to make the commission of the
crime possible). Accordingly, Ogle’s proposed plans to launder the
money involved the use not of his own financial resources, but of
those of a third party or parties, and his role in the proposed
money laundering transaction was that of a broker, one responsible
for the picking up and transportation of the cash in order to take
advantage of the assets of a third party or parties.
The defense presented no evidence establishing that Ogle’s
lack of financial resources would have prevented him from
laundering the money by transferring it to a third party or parties
8 See Hollingsworth, 27 F.3d at 1200 (describing the defendants’ misguided attempts “to become international financiers—a vocation for which neither had any training, contacts, aptitude, or experience”).
15 who did have the necessary assets to deposit twelve million dollars
in cash without unduly arousing suspicion, and there is no evidence
Ogle lacked information concerning or access to such parties (as he
maintained to Blount that he had). We conclude, therefore, that
Ogle’s proposed expert testimony could not have established a lack
of positional predisposition, and that its exclusion, therefore,
was not an abuse of discretion.
C. Sentencing
In his final point of error, Ogle challenges his sentence,
arguing that the district court erred in not considering a three-
level reduction of his guideline offense level under section
2X1.1(b) of the sentencing guidelines.
Following Ogle’s conviction, the district court declined to
consider granting Ogle a requested three-level reduction, reasoning
only that section 2X1.1 did not apply to offenses under section
1956, as the commentary included with section 2X1.1 listed only
offenses under 18 U.S.C. §§ 371, 372, and 2271. However, upon
reviewing the district court’s interpretation of the sentencing
guidelines de novo, see United States v. Heffron, 314 F.3d 211, 224
(5th Cir. 2002), we agree with Ogle’s conclusion that the district
court erred in not considering the availability of a three-level
reduction under section 2X1.1(b).
Sections 1B1.2(a) and 2X1.1 clearly direct that section 2X1.1
shall be applied to attempts, conspiracies, and solicitation unless
16 the specific attempt, conspiracy, or solicitation is expressly
covered by the guideline for the substantive offense. See U.S.S.G
§§ 1B1.2(a), 2X1.1(c)(1) (2000); United States v. Villafranca, 260
F.3d 374, 381 (5th Cir. 2001). The Government, however, now
maintains that section 2X1.1 was inapplicable for two reasons.
First, the Government argues that the jury found Ogle guilty not of
attempting to launder money, but of the completed offense of money
laundering. Second, the Government maintains, in a position
advanced for the first time at oral argument, that section 2X1.1
does not apply to offenses under section 1956, since the offense
guideline for money laundering, section 2S1.1, expressly covers
attempts and conspiracies to commit money laundering. We find both
arguments unpersuasive. We initially note that neither contention
was addressed below by either party, or by the Presentence Report
or the district court. The Presentence Report simply took the
position, with which the Government and the district court agreed,
and to which Ogle objected, that section 2X1.1 did not apply to any
section 1956 conviction. That position is erroneous as reflected
by our opinion in Villafranca.
The Government first argues that Count Two of the indictment
and the instructions to the jury authorized conviction on that
count for both the attempt to complete and the actual completion of
a money laundering transaction. The general verdict of guilty on
that count does not reveal which the jury found. Moreover, the
17 record also indicates, and the Government conceded at oral
argument, that the Government largely argued its case to the jury
as an attempt case. Had the jury clearly convicted Ogle only of
the completed offense of money laundering, then guideline section
2S1.1 would have properly applied. Given the manner in which the
Government presented its case, and in the absence of any finding
from either the jury or from the district judge at sentencing that
Ogle’s conviction was based on a completed offense of money
laundering, we decline to now hold that section 2S1.1 was properly
applied.
The Government’s second argument, that section 2S1.1 expressly
covers attempts and conspiracies, is not only tardy,9 but is also
wholly without merit. The Government’s position at oral argument
that section 2S1.1 expressly covers attempts and conspiracies was
based on reference to subsections of section 2S1.1 not in existence
at the time Ogle was sentenced. Specifically, the Government’s
entire argument before the panel on this point was based on an
amended version of section 2S1.1 that did not become effective
9 We will generally not consider points raised for the first time at oral argument. United States v. Ulloa, 94 F.3d 949, 952 (5th Cir. 1996). The Government raised this position neither at sentencing nor in its brief. The Government, however, attempted at oral argument to characterize this contention as a mere “expansion” of a position advanced in its brief. This effort, however, is somewhat disingenuous. Nowhere in its brief does the Government advance the argument that § 2S1.1 expressly covers attempts and conspiracies. The closest the Government comes to advancing this position is a statement that the district court was permitted, but was not required, to apply § 2X1.1.
18 until November of 2002, nine months after Ogle’s sentencing. The
version of section 2S1.1 in effect at the time of Ogle’s sentencing
contains no reference whatsoever to either attempts or
conspiracies. Accordingly, the district court should have referred
to section 2X1.1 in computing Ogle’s sentence. See United States
v. Villafranca, 260 F.3d 374, 381 (5th Cir. 2001).
Finally, the Government argues that any error in not applying
guideline section 2X1.1 was harmless as Ogle had completed all acts
he believed necessary to consummate the money laundering conspiracy
at the time of his arrest. Guideline section 2X1.1(b)(1) does
provide that a three-level reduction is not available where, “but
for apprehension and interruption by some . . . event beyond the
defendant’s control,” the defendant would have completed the
substantive offense. U.S.S.G. § 2X1.1(b)(1). The Government is,
therefore, correct that “there is no difference between the
Guidelines calculation for conspiracy [to launder money] and [money
laundering] when the evidence accepted by the sentencing court
shows that the conspiracy’s objectives were actually [or
substantially] completed.” Villafranca at 381. This contention
was not made below, and neither the Presentence Report nor the
district court concluded that the money laundering scheme was (or
was not) substantially completed at the time of Ogle’s arrest, nor
did either party present any evidence at sentencing to establish
that the offense was, in fact, substantially complete. Under these
19 circumstances, we cannot on this appeal accept the Government’s
position that any error in refusing to apply section 2X1.1 was
harmless.
Accordingly, Ogle’s case must be remanded to the district
court to address, consistently with this opinion, the applicability
and effect of section 2X1.1.
Conclusion
For the reasons assigned, the judgment of conviction is
AFFIRMED, the sentence is VACATED, and the case is REMANDED for
resentencing.