Appeal from the United States District Court for the Southern District of Florida. (No. 93-14043-CR-KLR). James C. Paine, Judge.
Before Tjoflat, Chief Judge, and Roney and Phillips,*fn* Senior Circuit Judges.
RONEY, Senior Circuit Judge:
The United States appeals the sentence imposed on defendant Darrell McQueen after his conviction for tampering with a witness. 18 U.S.C. § 1512(b)(3). The sentencing guidelines provide that the ultimate offense level for the crime of tampering with a witness (obstruction of justice) is set by referring to the underlying crime that the defendant was trying to obstruct. This may result in a higher base level than that provided for just tampering with a witness. We must vacate and remand the sentence here because the sentencing court incorrectly thought this cross-reference would not apply because the defendant was acquitted of the underlying offense.
Darrell McQueen, the owner of an engineering firm, circumvented city building regulations and rules and received favorable treatment concerning matters pertaining to his business with the help of Carl Dappen, a building official in Indian River Shores, Florida. In return, McQueen paid the tuition at a private high school for Dappen's children.
The FBI began investigating political corruption in Indian River County, Florida, suspecting that bribes had been paid to public officials by engineering firms doing business within the county. Dappen, acting undercover, met with McQueen four times and recorded each conversation. During the conversations, McQueen expressed concern about the tuition paid for Dappen's children, warned Dappen to say nothing to the authorities, and suggested that Dappen, if subpoenaed to testify before the grand jury, should exercise his right not to answer questions under the Fifth Amendment of the United States Constitution.
McQueen was indicted on seven counts of money laundering and one count of tampering with a witness. The jury acquitted McQueen of the seven money laundering counts, but found him guilty of tampering with a witness.
The applicable guideline for the crime of tampering with a witness (obstruction of justice), provides a base offense level of 12. U.S.S.G. § 2J1.2(a). The cross-reference provision of that section, § 2J1.2(c)(1) requires that if the offense involved obstructing the investigation or prosecution of a criminal offense, then § 2X3.1 (accessory after the fact) must be applied. Section 2X3.1 (accessory after the fact) provides that the base offense level will be six levels lower than the offense level for the underlying offense. The underlying criminal offense obstructed in this case was money laundering. The money laundering provision § 2S1.1 provided a base offense level of 23. Going down six levels resulted in an adjusted offense level of 17.
McQueen objected to applying the money laundering guideline on the ground that the jury had acquitted him of the seven counts of money laundering. The sentencing judge agreed. "I do rule because McQueen was acquitted of Counts 1 through 7, that the objection to cross-referencing must be sustained....I will ... work from a base level of 12 rather than 17...." (Record on appeal. Vol. 5, p. 33). Base level 12 provides a guideline range of 10-16 months imprisonment. The court imposed a sentence of ten months imprisonment, followed by three years supervised release during which time defendant would be required to perform community service and pay a $5,000 fine. If the court had used a base level of 17, the guideline range would be 24-30 months imprisonment.
Under United States Sentencing Guideline for obstruction of justice, § 2J1.2, a sentencing court must apply the cross-reference provision, § 2J1.2(c)(1) under the following circumstances:
If the offense involved obstructing the investigation or prosecution of a criminal offense, apply § 2X3.1 (Accessory After the Fact) in respect to that criminal offense...
(Nov. 1, 1993). Section 2X3.1, in turn, directs the sentencing court to compute the base offense level as follows:
Base Offense Level: 6 levels lower than the offense level for the underlying offense...
The district court held that it could not apply this provision because McQueen had been acquitted of the underlying offense of money laundering. Thus, the court apparently ...