United States v. Gary Cooper , 886 F.3d 146 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 16, 2018 Decided March 30, 2018
No. 17–3015
UNITED STATES OF AMERICA,
APPELLEE
v.
GARY COOPER,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cr-00147-3)
Jonathan Zucker, appointed by the court, argued the cause
and filed the briefs for the appellant.
Rachel E. Timm, Trial Attorney, United States Department
of Justice, argued the cause for the appellee. Vincent J. Falvo,
Jr., Trial Attorney, was with her on brief.
Before: HENDERSON and TATEL, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Gary
Cooper (not that one) was convicted of five counts for his role
2
in a scheme to steal from a labor union. Counts One and Two
both charged conspiracy under 18 U.S.C. § 371. Count One
alleged a conspiracy to embezzle money from the union.
Count Two alleged a conspiracy to pay off the union official
who embezzled the money. At sentencing, the district court
enhanced Cooper’s offense level for Count Two—the count
that dictated his overall offense level—under section
2E5.1(b)(1) of the United States Sentencing Guidelines
(U.S.S.G. or Guidelines). 1 Section 2E5.1(b)(1) applies “[i]f
the defendant was a fiduciary of” the victim union. The court
sentenced Cooper to 68 months in prison on Count Two. It
also sentenced him to 68 months on each of the other counts,
with all terms to run concurrently.
Cooper appeals, advancing three claims. First, he argues
that the two alleged conspiracies were in fact one. As a result,
he contends, his conviction on either Count One or Count Two
must be vacated as multiplicitous. Second, he urges us to
vacate all of his sentences because, in his view, they rest on an
erroneous application of section 2E5.1(b)(1). Third, Cooper
points out that a prison term for conspiracy cannot exceed
section 371’s five-year maximum—a restriction he says the
district court violated in imposing a 68-month sentence on each
conspiracy count. Finding merit in Cooper’s claims, we
vacate his sentences and remand for resentencing. On
remand, the district court’s first step will be to decide, in its
discretion, which one of the multiplicitous convictions should
be vacated. See Ball v. United States, 470 U.S. 856, 864-65
(1985).
1
We refer to the November 2016 version of the Guidelines
Manual because that version applied to Cooper’s February 2017
sentencing. See U.S.S.G. § 1B1.11(a) (court is to use version “in
effect on the date that the defendant is sentenced”).
3
I. BACKGROUND
Cooper’s convictions and sentences followed one year of
pretrial litigation, an eight-day jury trial and a thorough
sentencing process. We recite only the background necessary
to resolve Cooper’s claims of multiplicity and sentencing
errors.
A. INDICTMENT
“Charg[ing] the same offense in more than one count”—
“a problem known as multiplicity”—is “a defect[] in the
indictment.” United States v. Weathers, 186 F.3d 948, 951,
953 (D.C. Cir. 1999) (internal quotations omitted); see United
States v. Harris, 959 F.2d 246, 250-51 (D.C. Cir. 1992) (per
curiam), abrogated on other grounds as recognized by United
States v. Stewart, 246 F.3d 728, 730-32 (D.C. Cir. 2001); see
also FED. R. CRIM. P. 12(b)(3)(B)(ii). We therefore begin with
the indictment against Cooper and his codefendants. It
alleged as follows.
Generally. Laborers International Union of North
America, Local 657 (Union) is a labor union in Washington,
D.C. It represents construction workers. Under the Union’s
constitution and bylaws, each Union officer is a fiduciary who
can spend the Union’s money only for the Union’s benefit.
Anthony Frederick was a Union officer and thus a
fiduciary. Christopher Kwegan and Gary Cooper owned STS
General Contracting, Inc. (STS), a Maryland construction
company. Kwegan and Cooper were signatories to STS’s
bank account, which they opened in May 2013.
Count One. According to Count One, Frederick, Kwegan
and Cooper—“together and with others known and unknown
to the grand jury”—violated 18 U.S.C. § 371 by agreeing to
4
commit an offense under 29 U.S.C. § 501. 2 Joint Appendix
(JA) 28. From about April 2013 through about June 2014, the
defendants conspired to embezzle Union money, secretly
causing the Union to pay STS some $1.7 million “for uses other
than for the benefit of [the Union] and its members.” JA 28-
29. Specifically, the defendants caused the Union to pay STS
about $1.1 million for less than $100,000 of renovations to the
Union’s hall. And they caused the Union to pay STS nearly
$600,000 in “exorbitant fee[s]” “to expedite building permits”
for the Union’s training center. JA 29. Frederick made the
payments in installments. Kwegan and Cooper deposited the
proceeds into STS’s bank account.
Count Two. According to Count Two, Frederick,
Kwegan and Cooper—“and other persons both known and
unknown to the [g]rand [j]ury”—violated 18 U.S.C. § 371 by
agreeing to commit an offense under 29 U.S.C. § 186. 3 JA 34.
From about April 2013 through about June 2014, the
defendants conspired to make unlawful payments in cash and
in kind to Frederick. The payments included a $225,000 down
payment on a house for Frederick and his wife; construction of
a three-car garage at the house; and $8,000 via cashier’s check.
2
Section 501 prescribes criminal punishment for (inter alia)
“[a]ny person who embezzles . . . any of the moneys . . . of a labor
organization of which he is an officer.” 29 U.S.C. § 501(c).
3
Section 186 prescribes criminal punishment for (inter alia)
“any person . . . who acts in the interest of an employer” and “pay[s]
. . . any money or other thing of value . . . to any labor organization,
or any officer or employee thereof, which represents, seeks to
represent, or would admit to membership, any of the employees of
such employer.” 29 U.S.C. § 186(a)(2).
5
The money came from the same STS bank account into which
Kwegan and Cooper had deposited the embezzled Union funds.
Other counts. Cooper was also charged in Counts Three,
Fourteen and Twenty-One. Count Three charged Frederick,
Kwegan and Cooper with defrauding the Union “by means of
wire communications”—in the process depriving the Union of
property and Frederick’s honest services—in violation of 18
U.S.C. §§ 2, 1343 and 1346. JA 43. The gravamen of the
fraud scheme, according to Count Three, was that Kwegan and
Cooper secretly paid Frederick “bribes and kickbacks . . . in
return for favorable action” on their overpriced renovations and
bogus fees, thereby “caus[ing] the expenditure of more than
$1.70 million” of Union money. JA 40. Counts Fourteen and
Twenty-One charged Cooper with laundering the proceeds of
the scheme in violation of 18 U.S.C. § 1957.
B. MOTION TO DISMISS AND TRIAL
Cooper pleaded not guilty. Before trial, he moved to
dismiss Counts One and Two as multiplicitous. Alternatively,
he argued that the government should be required to elect only
one conspiracy count on which to proceed. The district court
“defer[red] ruling . . . until after [the] verdict.” JA 74; see JA
70-71 (“[I]t’s perfectly acceptable to deal with that issue after
trial, if there are convictions, and that’s what I’ll do.”).
Frederick and Kwegan pleaded guilty. Kwegan testified
at Cooper’s trial. He explained some of the mechanics of the
scheme and the ways in which he, Frederick and Cooper tried
to conceal it. He admitted that STS funded the down payment
on Frederick’s house using embezzled Union money. Indeed,
Kwegan characterized the down payment as a “kickback” to
Frederick. Supplemental Appendix (SA) 118. He also noted
that Frederick bought the house from Dennis Laskin, an
acquaintance of Kwegan. According to Kwegan, Laskin
6
actively helped the defendants hide the fact that they used
embezzled Union money to finance Frederick’s purchase.
The jury found Cooper guilty on all five counts. After
trial, Cooper did not remind the district court of his pending
motion to dismiss the conspiracy counts as multiplicitous nor
did the court rule on the motion.
C. SENTENCING
At sentencing in Frederick’s and Kwegan’s cases, the
district court issued a “Notice” “conclud[ing] that the guideline
applicable to Count II—§ 2E5.1—produce[d] the highest
offense level” for any count of conviction and thus
“govern[ed]” the overall offense level for both Frederick and
Kwegan. JA 116-17. Adopting that analysis, the probation
office in Cooper’s case prepared a presentence report (PSR)
that used “the guideline applicable to Count Two,” section
2E5.1, to calculate Cooper’s governing offense level. PSR
¶ 46. The PSR calculated a base offense level of 10 and
assessed 17 levels of enhancements not here in dispute. The
PSR also recommended a two-level enhancement under
“USSG §§ 2E5.1(b)(1) and 2X2.1” because Cooper “is
considered an aider and abettor to Mr. Frederick, who was a
fiduciary of the labor organization.” PSR ¶ 50. Based on
Cooper’s criminal record, the PSR calculated a criminal history
category of II. Taking that calculation together with Cooper’s
offense level of 29, the PSR computed an advisory Guidelines
range of 97 to 121 months in prison.
In his sentencing memorandum and at the sentencing
hearing, Cooper did not dispute that Count Two, and therefore
section 2E5.1, yielded the highest offense level for any count
of conviction and controlled his overall Guidelines range. But
he objected to the two-level enhancement under section
2E5.1(b)(1), which applies if “the defendant” was a fiduciary
7
of the victim union. Cooper pointed out that he, the defendant,
was not a Union fiduciary. The government responded that
Cooper aided and abetted Frederick, “the principal,” who “very
clearly [had] a fiduciary duty” to the Union. JA 126. The
government argued that the enhancement applied because,
under the aiding and abetting statute, Cooper was punishable
as a principal. Id. (citing 18 U.S.C. § 2).
The district court overruled Cooper’s objection. Relying
on its earlier Notice, the court concluded that section 2E5.1
governed Cooper’s overall offense level. JA 120. Agreeing
with the PSR, the court then invoked the aiding and abetting
guideline, section 2X2.1:
[B]ecause Mr. Frederick was a fiduciary of the
union, the two-point increase plainly applied to
him. The two-point increase also applies to
Mr. Cooper . . . under 2X2.1, which provides
that for an aider and abetter, quote, the offense
level is the same as that for the underlying
offense, end quote. By convicting Mr. Cooper
of Count 3, the jury determined that Mr. Cooper
aided and abetted Mr. Frederick’s illegal acts.
JA 126-27. Endorsing the PSR’s other recommendations as
well, the court agreed that Cooper’s advisory Guidelines range
was 97 to 121 months. The court varied downward from the
range and imposed a sentence of 68 months in prison on each
count of conviction, with all terms to be served concurrently.
Cooper did not object that the 68-month sentence for each
conspiracy conviction exceeded the five-year maximum under
18 U.S.C. § 371.
8
II. ANALYSIS
Cooper claims multiplicity in the conspiracy counts;
procedural error in the district court’s sentencing him as a
fiduciary; and legal error in the court’s imposing an above-
maximum sentence on each conspiracy count.
A. MULTIPLICITY
Before we evaluate Cooper’s multiplicity claim, we must
decide the standard of review. A preserved multiplicity claim
presents a question of law to be reviewed de novo. See, e.g.,
United States v. Smith, 231 F.3d 800, 807 (11th Cir. 2000); see
also 1A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE
AND PROCEDURE: CRIMINAL § 142, at 29 n.32 (4th ed. 2008 &
Supp. 2017) (citing additional cases). Cooper says he
preserved his multiplicity claim by virtue of his pretrial motion.
The government says he forfeited his claim because he “failed
to renew [it] following the verdict.” Appellee’s Br. 12. We
agree with Cooper.
To repeat, Cooper claims a defect in the indictment. See,
e.g., Appellant’s Br. 20 (“[T]he indictment is multiplicitous,
and thereby defective, because a single offense is alleged in
counts one and two.”). Rule 12 of the Federal Rules of
Criminal Procedure governs such a claim. It provides in
pertinent part:
(3) Motions That Must Be Made Before
Trial. The following defenses, objections, and
requests must be raised by pretrial motion if the
basis for the motion is then reasonably available
and the motion can be determined without a trial
on the merits: . . .
9
(B) a defect in the indictment or
information, including: . . .
(ii) charging the same offense in more
than one count (multiplicity) . . . .
FED. R. CRIM. P. 12(b).
Cooper’s pretrial motion preserved his multiplicity claim.
Granted, Cooper did not post-trial call the district court’s
attention to the fact that it had not yet ruled on the motion. As
Cooper’s counsel acknowledges, such a reminder would have
been “the better practice” “in an optimal world.” Oral Arg.
Recording 8:25-8:39. Still, the pretrial motion met the terms
of Rule 12(b)(3) and served the latter’s purpose, which “is to
compel defendants to object to technical defects in the
indictment early enough to allow the district court to focus on
their pretrial objections.” Harris, 959 F.2d at 250. It is not
as though Cooper sandbagged the court by failing to object.
See Puckett v. United States, 556 U.S. 129, 134 (2009)
(purpose of “contemporaneous-objection rule” is “to induce the
timely raising of claims and objections, which gives the district
court the opportunity to consider and resolve them”).
The government cites no authority holding that a
defendant who fails to remind the district court of a pending
pretrial motion forfeits a multiplicity claim raised in the
motion. The government points to United States v. Galati,
230 F.3d 254 (7th Cir. 2000), but that case is distinguishable.
There, the district court “denied . . . without prejudice” Galati’s
motion to suppress “and told Galati to raise it again during the
course of the trial.” Id. at 259. The court of appeals
concluded that Galati forfeited his claim by failing to comply
with the district court’s instruction. Id. (reasoning that
preservation rules are “subject to variation by the trial judge”
who, in Galati’s case, “required Galati to renew his objection”
10
(internal quotation omitted)). Here, by contrast, the district
court did not deny Cooper’s motion or direct him to raise his
multiplicity claim later. Instead, without suggesting that a
reminder was required, the court expressed its intention to rule
on Cooper’s motion if he were convicted. JA 70-71 (“[I]t’s
perfectly acceptable to deal with that issue after trial, if there
are convictions, and that’s what I’ll do.” (emphasis added)).
Under these circumstances, we do not think the absence of a
reminder constituted forfeiture.
We therefore consider de novo whether Counts One and
Two are multiplicitous. Multiplicity violates the Fifth
Amendment’s Double Jeopardy Clause, which “protects not
only against a second prosecution for the same offense after
acquittal or conviction” but also against “charg[ing] the same
offense in more than one count” of a single indictment.
Weathers, 186 F.3d at 951 (internal quotation omitted); see
U.S. CONST. amend. V (“No person shall . . . be subject for the
same offence to be twice put in jeopardy of life or limb . . . .”).
Ordinarily, “where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test . . . to
determine whether there are two offenses or only one, is
whether each provision requires proof of a fact which the other
does not.” Blockburger v. United States, 284 U.S. 299, 304
(1932). But what of a case in which multiple counts charge a
violation of the same statutory provision? What if, as here,
two counts of the same indictment charge a violation of the
general conspiracy statute, 18 U.S.C. § 371? The question is,
then, whether the counts charge “the same act or transaction”—
i.e., the same conspiracy—at all. Blockburger, 284 U.S. at
304; see Braverman v. United States, 317 U.S. 49, 52-54
(1942) (conspiracy counts are multiplicitous if they charge
same agreement under same conspiracy statute); Ward v.
United States, 694 F.2d 654, 661 (11th Cir. 1983) (same, citing
additional cases).
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In dicta, we have endorsed the Second Circuit’s
multifactor standard for “determining whether two
conspiracies amount to the same offense for double jeopardy
purposes”: we may “consider[] factors such as common
purpose, overlap of participants and time, location where acts
occurred, and interdependence.” United States v. Gatling, 96
F.3d 1511, 1522 (D.C. Cir. 1996) (citing United States v.
Macchia, 35 F.3d 662, 667-68 (2d Cir. 1994)). Other courts
consider the same or similar factors. 4 We see no reason to
blaze a different trail. And we are mindful that there is “no
dominant factor or single touchstone.” Id. (quoting Macchia,
35 F.3d at 668); see United States v. Abboud, 273 F.3d 763,
767 (8th Cir. 2001) (totality of circumstances dictates result).
Here, all of the factors point in the same direction: Counts
One and Two charged the same conspiracy.
Common purpose. The crux of Count One is that
Frederick, Kwegan and Cooper, leveraging Frederick’s
position with the Union, secretly caused the Union to pay STS
some $1.7 million for the defendants’ benefit rather than the
Union’s. The crux of Count Two is that Kwegan and Cooper
used some of the money to make unlawful payments to
Frederick. The indictment elsewhere characterizes the
payments as “kickbacks” for Frederick’s embezzling efforts.
4
See, e.g., United States v. Travillion, 759 F.3d 281, 295 (3d
Cir. 2014); United States v. El-Mezain, 664 F.3d 467, 546 (5th Cir.
2011); United States v. MacDougall, 790 F.2d 1135, 1144 (4th Cir.
1986); United States v. Thomas, 759 F.2d 659, 662 (8th Cir. 1985);
United States v. Sinito, 723 F.2d 1250, 1256 (6th Cir. 1983); United
States v. Castro, 629 F.2d 456, 461 (7th Cir. 1980).
12
JA 40. Kwegan used the same term at trial. 5 SA 118. That
characterization—supported by evidence that Kwegan and
Cooper paid Frederick from the same account into which they
deposited the ill-gotten money—aptly describes a single
scheme with a common purpose: to unjustly enrich all three
defendants at the Union’s expense. BLACK’S LAW
DICTIONARY 1001 (10th ed. 2014) (“kickback” is “sum of
money illegally paid to someone in authority, esp. for arranging
for a company to receive a lucrative contract; esp., a return of
a portion of a monetary sum received, usu. as a result of
coercion or a secret agreement” (emphasis added)).
Interdependence. One hand washed the other. Kwegan
and Cooper benefited from Frederick’s approving Union
outlays for STS’s overpriced renovations and bogus fees
(Count One). In return, Frederick benefited from STS’s
kickbacks (Count Two). The government does not contend
that, contrary to human nature, the outlays would have
continued absent the kickbacks or the kickbacks absent the
outlays. Instead, as the prosecutor argued to the jury,
Frederick authorized the outlays because he got a cut and he
got a cut because he authorized the outlays:
• “And you’ll ask yourself, as I did before, how is it that
this union business manager wants to empty the
treasury to these two guys? . . . Because they agreed to
kick part of it back to [him].” JA 77.
• “[H]ow would Mr. Cooper know that the inside man in
this scheme, Anthony Frederick, would betray the
organization he had been a member of for decades and
5
We can consider the trial evidence to the extent it helps us
decide whether the indictment in fact alleged only one agreement.
Ward, 694 F.2d at 661-62.
13
had led as its business manager for 10 years? And we
have shown you exactly why and how . . . . The house,
the garage, the cash payments . . . .” JA 112-13.
• “[T]his fraud . . . solidified when Cooper, Kwegan, and
Frederick were standing on the driveway of that house
that Frederick wanted and said I don’t have the money
for this, and [Cooper] said, you know what, we can
finance this, and we’ll finance it through the money
we’re going to get from the union and we’ll kick that
back to you.” JA 114.
• “[T]his fraud . . . was facilitated and it was greased
when all that money went out the door that the union
got no benefit for, for work that was never performed.”
Id.We can describe the confluent thrust of Counts One and Two
no better than the prosecutor did.
Overlap of participants. Frederick, Kwegan and Cooper
were the core players in both charged conspiracies.
Illustrating the point, Counts One and Two identically alleged
that the scheme’s participants were “Defendants ANTHONY
FREDERICK, CHRISTOPHER KWEGAN, and GARY
COOPER,” together with others known and unknown to the
grand jury. JA 28, 34. Resisting the symmetry, the
government touts Dennis Laskin’s purportedly “pivotal” role
in the unlawful payments to Frederick (Count Two).
Appellee’s Br. 16. To us, Laskin was a tangential figure.
The indictment nowhere mentions him by name. In any event,
his role was to help Kwegan and Cooper conceal not only that
they helped pay for Frederick’s house but that they used
embezzled Union money to do so. Thus, whatever Laskin’s
importance to concealing the kickbacks (Count Two), he was
14
equally important to concealing the plundering of the Union
(Count One).
Overlap in time. Counts One and Two both alleged a
conspiracy running from April 2013 through June 2014. The
overall duration of each charged conspiracy could not be more
congruent than that. And the overlap is even more striking
when we consider the particulars: the Union outlays to STS
were chronologically intertwined with STS’s kickbacks to
Frederick. Compare, e.g., JA 32-33 (alleging Union outlays
in July, August, September, November and December of 2013,
along with further payments in January 2014), with JA 35-38
(alleging STS kickbacks to Frederick in July, August, October
and December of 2013); see also, e.g., SA 126-28 (Kwegan
testified that, one day after Frederick disbursed about $150,000
from Union to STS, STS used same money to pay Laskin for
Frederick’s house).
Location. The government admits that acts in furtherance
of each charged conspiracy “occurred in the same region,” that
is, within the District of Columbia and Maryland. Appellee’s
Br. 18-19. It observes, however, that the region “is large
enough to host simultaneous conspiracies” and that the acts
related to the Union outlays did not always occur in the
identical geographic locations as the acts related to the
kickbacks. Id. The observation may be correct as far as it
goes but it does not go far. After all, the outlays and kickbacks
came to and went from the same STS bank account. Whether
or not it can fairly be called geographic, that single location
was central to the scheme and was common to both halves of
it.
Weighing all of the factors together, we conclude that
Counts One and Two were multiplicitous. On remand,
Cooper’s conviction on one of those counts will have to be
15
vacated. We leave it to the district court to decide which one.
See Ball, 470 U.S. at 864-65 (remanding so that court with
“sentencing responsibility” could “exercise its discretion to
vacate one of the [multiplicitous] convictions”).
B. FIDUCIARY ENHANCEMENT
Cooper claims the district court erroneously enhanced his
Guidelines offense level by two levels under U.S.S.G.
§ 2E5.1(b)(1). Because the claim is “purely legal”—calling
for us to decide the soundness of the court’s Guidelines
interpretation—our review is de novo. United States v.
McKeever, 824 F.3d 1113, 1119 (D.C. Cir. 2016) (internal
quotation omitted). We agree with Cooper that the court erred
in applying section 2E5.1(b)(1). Explaining why requires us
to pinball through the Guidelines Manual as a whole.
At the outset, section 1B1.1 prescribes a crucial sequence
of operations. U.S.S.G. § 1B1.1(a) (“The court shall
determine . . . the guideline range . . . by applying the provisions
of this manual in the following order . . . .” (emphasis added)).
We quote the first four steps.
• Step one is to “[d]etermine, pursuant to §1B1.2
(Applicable Guidelines), the offense guideline section
from Chapter Two (Offense Conduct) applicable to the
offense of conviction.” U.S.S.G. § 1B1.1(a)(1).
• Step two is to “[d]etermine the base offense level and
apply any appropriate specific offense characteristics,
cross references, and special instructions contained in
the particular guideline in Chapter Two in the order
listed.” U.S.S.G. § 1B1.1(a)(2).
16
• Step three is to “[a]pply the adjustments as appropriate
related to victim, role, and obstruction of justice from
Parts A, B, and C of Chapter Three.” U.S.S.G.
§ 1B1.1(a)(3).
• Step four—which is necessary “[i]f there are multiple
counts of conviction”—is to “repeat steps (1) through
(3) for each count.” U.S.S.G. § 1B1.1(a)(4). The
court is then to “[a]pply Part D of Chapter Three to
group the various counts and adjust the offense level
accordingly.” Id.
Step four is necessary here because Cooper was convicted
of multiple counts. Step four manifests that the district court
was to perform steps one through three for each of Cooper’s
convictions separately. Only after correctly calculating the
offense level for each conviction was the court “to group the
various counts and adjust the offense level accordingly.”
U.S.S.G. § 1B1.1(a)(4); see United States v. Sinclair, 770 F.3d
1148, 1157 (7th Cir. 2014) (“Grouping rules are applied after
the offense level has been calculated for each separate offense
in the case.”). In other words, at steps one through three, the
court was not to intermingle the counts and their respective
guidelines. But the court did just that.
To spare the reader unnecessary tedium, we do not here
perform steps one through three for each conviction. Looking
ahead at the applicable grouping rules, U.S.S.G. § 3D1.2(d);
see PSR ¶ 46, we think it suffices to say that the district court
was to use “the offense guideline that produces the highest
offense level” to determine Cooper’s overall offense level and
advisory imprisonment range, U.S.S.G. § 3D1.3(b). Cooper
does not challenge the court’s conclusion—embodied in the
Notice it issued in Frederick’s and Kwegan’s cases, JA 117—
that the offense guideline applicable to Count Two produced
17
the highest offense level. 6 Performing the first two steps for
that count demonstrates the court’s error.
Starting with step one, we ask which offense guideline
applied to the Count Two conspiracy conviction. Section
1B1.2 provides that “[i]f the offense involved a conspiracy,
attempt, or solicitation,” the district court is to “refer to §2X1.1
(Attempt, Solicitation, or Conspiracy) as well as the guideline
referenced in the Statutory Index for the substantive offense.”
U.S.S.G. § 1B1.2(a). Section 2X1.1, in turn, directs the court
to use “[t]he base offense level from the guideline for the
substantive offense, plus any adjustments from such guideline
for any intended offense conduct that can be established with
reasonable certainty.” U.S.S.G. § 2X1.1(a). The Statutory
Index lists section 2E5.1 as the guideline for the underlying
substantive offense of making unlawful payments to a union
officer in violation of 29 U.S.C. § 186. U.S.S.G. App. A.
Section 2E5.1 is indeed the guideline the district court used to
calculate Cooper’s offense level for Count Two. JA 117, 120.
So far so good.
Turning to step two, we ask what Cooper’s offense level
was for Count Two. As the district court found, Cooper’s base
offense level was 10 under section 2E5.1(a)(1). The court
added 17 levels of enhancements that Cooper does not dispute.
The court added two more levels under section 2E5.1(b)(1),
which applies “[i]f the defendant was a fiduciary of the benefit
plan or labor organization.” Cooper objected to the fiduciary
enhancement because he, the defendant, was not a Union
fiduciary. In the district court’s view, that fact was no obstacle
6
We leave it to the district court to determine which count will
produce the highest offense level after the court vacates one of the
conspiracy convictions and no longer treats Cooper as a fiduciary
under U.S.S.G. § 2E5.1(b)(1).
18
to the enhancement because Frederick was a Union fiduciary
and, under section 2X2.1 (“Aiding and Abetting”), the offense
level for an aider and abettor “is the same as that for the
underlying offense.” JA 126.
The district court took a wrong turn in using the aiding and
abetting guideline, section 2X2.1, to calculate the offense level
for Count Two. 7 Again, the Count Two conspiracy conviction
was governed by the conspiracy guideline, section 2X1.1.
Nothing in section 2X1.1—or in section 2E5.1, which applied
to the underlying substantive offense—suggests the aiding and
abetting guideline bears on the offense level for conspiring to
make unlawful payments to a union official.
7
The government says Cooper forfeited, in district court and
in his opening brief on appeal, any objection to the district court’s
reliance on aiding and abetting principles. We disagree. In his
sentencing memorandum and at the hearing, Cooper claimed he
should not be treated as a Union fiduciary merely because Frederick
was a fiduciary. See, e.g., Def.’s Sentencing Mem., Dkt. No. 152 at
2 (“[H]is offense level should be based on his status in relation to the
labor organization[,] not the fiduciary status of the principal
offender, co-defendant Frederick.”). In our view, that objection
fairly encompassed the narrower point that Cooper should not be
treated as a fiduciary for the Count Two conspiracy merely because
he aided and abetted Frederick’s commission of a wholly separate
offense. Further, Cooper’s opening brief in this Court at least twice
takes issue with the district court’s application of the aiding and
abetting guideline. Appellant’s Br. 8 (“The sentencing court
increased Cooper’s offense level by erroneously determining that the
fiduciary enhancement under § 2E5.1(b)(1) applied on the basis of
§ 2X2.1 . . . .”); id. at 10 (“The fiduciary enhancement is determined
on the basis of the relevant conduct guideline[,] not the aiding and
abetting guideline[.]” (capitalization altered)).
19
Granted, the fraud conviction on Count Three might have
rested on a theory of aiding and abetting. See JA 126-27
(district court found that, “[b]y convicting Mr. Cooper of Count
3, the jury determined that Mr. Cooper aided and abetted Mr.
Frederick’s illegal acts”). To that extent, however, the aiding
and abetting guideline bore on the offense level for Count
Three, not the offense level for Count Two, which was to be
calculated separately. 8
8
The government suggests we can uphold the fiduciary
enhancement as an enhancement to Cooper’s offense level for Count
Three. Oral Arg. Recording 24:30-25:45. Recognizing that the
fraud guideline, section 2B1.1, otherwise applies to Cooper’s Count
Three wire fraud conviction, see U.S.S.G. App. A, the government
invokes section 2B1.1(c)(3). Section 2B1.1(c)(3) provides in
relevant part that if the defendant was convicted under 18 U.S.C.
§ 1343 (as Cooper was) and “the conduct set forth in the [fraud]
count of conviction establishes an offense specifically covered by
another guideline in Chapter Two (Offense Conduct),” the court is to
“apply that other guideline.” But the district court did not mention
section 2B1.1(c)(3), let alone use it to cross-reference sections 2X2.1
and 2E5.1 in calculating Cooper’s offense level for Count Three.
Instead, the court relied on its earlier Notice “conclud[ing] that the
guideline applicable to Count II—§ 2E5.1—produce[d] the highest
offense level” for any count of conviction and thus “govern[ed]” the
overall offense level. JA 117 (emphasis added); see JA 120.
In any event, the applicable commentary states that a cross-
reference is appropriate only if the fraud count involves “conduct that
is more aptly covered by another guideline.” U.S.S.G. § 2B1.1 cmt.
n.16. Here, section 2E5.1 does not “more aptly cover[]” the fraud
scheme than section 2B1.1 does. The conduct at the heart of Count
Three was bribing Frederick and depriving the Union of $1.7 million,
most of which was not kicked back to Frederick. Section 2E5.1 is
directed primarily at the unlawful payments to Frederick. U.S.S.G.
§ 2E5.1(a); cf. 29 U.S.C. § 186(a)(2) (prohibiting certain payments
to union officer without reference to whether union was defrauded).
20
In short, aiding and abetting principles had nothing to do
with whether Cooper, as Frederick’s coconspirator, should be
sentenced on Count Two as a Union fiduciary. 9 The question
remains whether conspiracy or relevant conduct principles
nevertheless dictate application of the fiduciary enhancement.
We think not. Under the relevant conduct guideline, a
conspirator’s offense level “shall be determined on the basis of
. . . all acts and omissions” of his coconspirators if their acts
and omissions were within the scope of the conspiracy, were in
furtherance of it and were reasonably foreseeable. U.S.S.G.
§ 1B1.3(a)(1)(B). As a matter of plain English, Frederick’s
fiduciary status was not an “act[]” or “omission[],” id., much
less an act or omission attributable to “the defendant,” Cooper,
who did not personally share any such status, id. § 2E5.1(b)(1).
In reaching this conclusion, we draw support from United
States v. Moore, 29 F.3d 175 (4th Cir. 1994), which construed
the analogous abuse-of-trust guideline, U.S.S.G. § 3B1.3. In
Moore, the Fourth Circuit held that a conspirator’s abuse of a
position of trust cannot “be attributed to other members of a
Although section 2B1.1 accounts for the loss to the Union directly,
section 2E5.1 does so only indirectly—by sending the court right
back to the loss table of section 2B1.1 based on “the value of the
prohibited payment or the value of the improper benefit to the payer,
whichever is greater.” U.S.S.G. § 2E5.1(b)(2)(B). Under these
circumstances, section 2B1.1(c)(3) does not dictate a cross-reference
to section 2E5.1. Cf. United States v. Baldwin, 774 F.3d 711, 733
(11th Cir. 2014) (rejecting contention that tax guidelines were “more
apt[]” than section 2B1.1 where “heart of [fraud] scheme was not
simply to file fraudulent tax returns” but also for defendant to “enrich
himself” at expense of identity-theft victims and government).
9
For that reason, we need not and do not express any opinion
on the correct interpretation of section 2X2.1 or on whether the
fiduciary enhancement would apply if section 2X2.1 did.
21
conspiracy” who do not “personally hold” such a position. 29
F.3d at 176. The court reasoned that the “status of having a
relationship of trust with the victim” is not an act or omission
attributable to the defendant under the relevant conduct
guideline, especially because section 3B1.3 applies only if
“‘the defendant abused a position of public or private trust.’”
Id. at 178 (quoting U.S.S.G. § 3B1.3); see id. (“[s]uch
defendant-specific language” indicates requirement that
“defendant being sentenced” abused position of trust).
Moore’s reasoning is persuasive and applies with similar force
to section 2E5.1(b)(1), which, like section 3B1.3, is written in
defendant-specific language.
C. STATUTORY MAXIMUM
The district court imposed concurrent prison terms of 68
months on each count of conviction. That was not a problem
as to Counts Three, Fourteen and Twenty-One, each of which
carried a statutory maximum well above 68 months. See PSR
¶ 120 (under 18 U.S.C. § 1343, Count Three carried maximum
of twenty years); id. ¶ 121 (under 18 U.S.C. § 1957, Counts
Fourteen and Twenty-One carried maximum of ten years each).
But it was a problem as to Counts One and Two because the
conspiracy statute prescribes a maximum term of five years.
18 U.S.C. § 371; see PSR ¶¶ 118-19.
Cooper did not contemporaneously object to the above-
maximum sentences on Counts One and Two. As a result, our
review is for plain error. FED. R. CRIM. P. 52(b); see United
States v. Hunt, 843 F.3d 1022, 1029 (D.C. Cir. 2016).
Because “[i]t is a miscarriage of justice to give a person an
illegal sentence . . . just as it is to convict an innocent person,”
the above-maximum sentences amounted to plain error.
United States v. Coles, 403 F.3d 764, 767 (D.C. Cir. 2005) (per
curiam) (internal quotation omitted). The government
22
concedes as much. Appellee’s Br. 27-28. But we are already
vacating all of Cooper’s sentences for procedural error in the
calculation of his advisory Guidelines range. We therefore
believe it is sufficient to remind the district court of section
371’s five-year maximum.
For the foregoing reasons, we vacate Cooper’s sentences
and remand for resentencing consistent with this opinion.
So ordered.