United States v. Jonathan Derek Niblack , 257 F. App'x 192 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DECEMBER 3, 2007
No. 07-11954 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00035-CR-BAE-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JONATHAN DEREK NIBLACK,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(December 3, 2007)
Before DUBINA, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Appellant Jonathan Derek Niblack (“Niblack”) appeals his 18-month
sentence for misprision of a felony, in violation of 18 U.S.C. § 4, for which the
underlying offenses were bank fraud, 18 U.S.C. § 1344, and money laundering, 18
U.S.C. § 1956. Niblack argues that the district court erred in calculating the
advisory sentencing guideline range and, based upon that incorrect calculation,
imposed an unreasonable sentence. Niblack contends that the district court erred by
imposing a two-level specific offense characteristic enhancement under U.S.S.G. §
2S1.1(b)(2)(B) for a conviction under 18 U.S.C. § 1956 because Niblack was
convicted under 18 U.S.C. § 4, not § 1956.
Our review of sentencing after United States v. Booker, 543 U.S. 220, 125 S.
Ct. 738, 160 L. Ed. 2d 621 (2005) has two components: (1) the district court’s
calculation of the advisory guideline range; and (2) the sentence’s reasonableness.
United States v. Williams, 456 F.3d 1353, 1360 (2006), cert. dismissed, 127 S. Ct.
3040 (2007). “We review the district court’s interpretation of the sentencing
guidelines de novo. Because [Niblack] preserved this issue by timely objection [to
the PSI], if there was error we will reverse unless it was harmless.” United States
v. Paley, 442 F.3d 1273, 1276 (11th Cir. 2006). “A Guidelines miscalculation is
harmless if the district court would have imposed the same sentence without the
error. If the Guidelines calculation is correct, or if the miscalculation is harmless,
we consider whether the sentence is reasonable.” Williams, 456 F.3d at 1360.
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As an initial matter, there is a question as to whether the district court ruled
on Niblack’s objections regarding the application of a specific offense
characteristic enhancement under § 2S1.1(b)(2)(B) and, therefore, whether we can
conduct meaningful appellate review. “[T]he [district] court must resolve all
factual and legal disputes raised in the addendum to the presentence report . . .
during the . . . [sentencing] hearing.” United States v. Wise, 881 F.2d 970, 972
(11th Cir. 1989). However, failure to do so does not warrant remand where the
record allows us to undertake meaningful appellate review. Id. at 973.
Any failure to make such a ruling does not preclude meaningful
review—and therefore, does not require remand—because the district court applied
the guideline calculation as determined in the Presentence Investigation Report
(“PSI”) and sentenced Niblack within the guideline range, and the PSI properly
calculated the guidelines.
Section 2X4.1 of the United States Sentencing Guidelines provides that the
base offense level for misprision of a felony is nine levels lower than the offense
level for the underlying offense. See U.S.S.G. § 2X4.1. The offense underlying
Niblack’s misprision conviction is money laundering,1 which is covered by
1
To find a single base offense for the multiple underlying offenses, the probation officer
grouped the bank fraud and money laundering offenses into a single group and applied the offense
level for money laundering because it yielded a higher offense level than the bank fraud offense.
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§ 2S1.1, see U.S.S.G. § 2S1.1. Section 2S1.1 includes the following specific
offense characteristic: “If the defendant was convicted under 18 U.S.C. § 1956,
increase by 2 levels.” U.S.S.G. § 2S1.1(b)(2)(B). Additionally, U.S.S.G. § 1B1.3
determines the relevant conduct in applying the guidelines. This section provides:
Unless otherwise specified, . . . specific offense characteristics . . .
shall be determined on the basis of the following: all acts and
omissions committed, aided, abetted, counseled, commanded,
induced, procured, or willfully caused by the defendant . . . that
occurred during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to avoid
detection or responsibility for that offense[.]
U.S.S.G. § 1B1.3(a)(1).
The commentary to these provisions explains the extent to which the
guideline provisions for the underlying offense apply to calculating the guideline
range for misprision of a felony. “[C]ommentary in the Guidelines Manual that
interprets or explains a guideline is authoritative unless it violates the Constitution
or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that
guideline.” Stinson v. United States, 508 U.S. 36, 38, 113 S. Ct. 1913, 1915, 123 L.
Ed. 2d 598 (1993). The commentary to § 2X4.1, the guideline applicable to
misprision of a felony, directs the court to “[a]pply the base offense level plus any
applicable specific offense characteristics [of the underlying offense] that were
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known, or reasonably should have been known, by the defendant.” 2 U.S.S.G.
§ 2X4.1, comment. (n.2) (referencing U.S.S.G. § 1B1.3, comment. (n.10)). The
commentary to § 1B1.3 states: “In the case of . . . misprision, . . . the conduct for
which the defendant is accountable includes all conduct relevant to determining the
offense level for the underlying offense that was known, or reasonably should have
been known, by the defendant.” U.S.S.G. § 1B1.3, comment. (n.10). Specifically,
application note 6 to § 1B1.3 states: “[A]n express direction to apply a particular
factor only if the defendant was convicted of a particular statute includes the
determination of the offense level where the defendant was convicted of . . .
misprision of a felony in respect to that particular statute.” U.S.S.G. § 1B1.3,
comment. (n.6). Application note 6 also offers § 2S1.1(b)(2)(B) as an example of a
factor requiring conviction of a particular statute. Id.
After reviewing the record, we conclude that the PSI properly calculated the
guideline range. The commentaries to § 2X4.1 and § 1B1.3 make clear that the
conduct relevant to determining the offense level for misprision is the same as that
for the underlying offense—here, money laundering—including the applicable
specific offense characteristics. See U.S.S.G. §§ 1B1.3, comment. (n.6, 10),
2
Niblack does not argue that the conduct and applicable specific offense characteristics were
not known or reasonably should have been known by him. He argues only that the specific offense
characteristic regarding a conviction under § 1956 is inapplicable because he was convicted under
§ 4.
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2X4.1, comment. (n.2). Thus, the guidelines and their commentary direct the
probation officer and the court to determine the offense level for the underlying
offense exactly as they would have had the defendant been convicted of that
offense. From there, they then apply the misprision guideline provision. See
U.S.S.G. § 2X4.1. Had Niblack committed money laundering, he would have been
convicted under the money laundering statute, 18 U.S.C. § 1956, and therefore,
been subject to a two-level specific offense characteristic enhancement pursuant to
§ 2S1.1(b)(2)(B) for conviction under § 1956. See 18 U.S.C. § 1956; U.S.S.G. §
2S1.1(b)(2)(B). The offense level for the underlying offense of Niblack’s
misprision conviction is, applying the guidelines and commentary, as discussed
above, the same. Therefore, the two-level specific offense characteristic
enhancement pursuant to § 2S1.1(b)(2)(B) for conviction under § 1956 applied.
The probation officer and the district court applied the guidelines in a manner
consistent with this analysis, and the district court sentenced Niblack within the
resultant sentencing range. We conclude, therefore, that the guideline calculation
did not result in an unreasonable sentence. Accordingly, we affirm Niblack’s
sentence.
AFFIRMED.
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