On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 09-cr-635-02) District Judge: Hon. Timothy J. Savage
The opinion of the court was delivered by: Jordan, Circuit Judge.
Before: FISHER, JORDAN and COWEN, Circuit Judges.
Justine Wright*fn1 appeals the judgment entered by the United States District Court for the Eastern District of Pennsylvania sentencing him to 20 months' imprisonment. Wright argues that the sentence was procedurally unreasonable due to the erroneous application of an 8-level enhancement. Although the District Court's rationale for applying the 8-level enhancement was thoughtful and wellexplained, we agree with Wright that the enhancement should not have been applied in this case and will therefore vacate and remand for resentencing.
On July 2, 2009, Wright approached Andrew Cella at Cella's pizza restaurant in Morgantown, Pennsylvania, to inquire about purchasing the restaurant. Cella told Wright that he would sell the restaurant for $400,000. Wright said he did not have the money right then but that he would return later with his brother, who did have the money. On July 6, 2009, Wright returned to the restaurant accompanied by Soko Kanneh, who Wright falsely identified as his brother. Wright and Kanneh renewed Wright's earlier offer, and Cella again told them he would sell the restaurant for $400,000. Wright and Kanneh told Cella that they had the money, informing him that their father had made "good money" as a political figure and head of Sierra Leone's National Bank. Their father, they said, had recently been assassinated, and they had fled to the United States as refugees. Cella was interested in their offer, and they agreed to meet again for dinner to discuss the details.
Several days later, Cella met Wright and Kanneh for dinner at their hotel in Philadelphia. After dinner, Kanneh told Cella that he wanted to show him something, and the three men went to Cella's car. Once in the car, Kanneh removed a stack of black paper from a bag along with a plastic plate and several small bottles of liquid. Kanneh told Cella that the black paper was U.S. currency that had been given to Sierra Leone by the United States as aid but had been dyed black to keep it from being used by any rebels who might intercept it. He explained that the black dye could only be removed by a special solvent. Kanneh and Wright told Cella that their father had been responsible for cleaning the money for the Sierra Leone government and that, after he died, they had brought the money with them to the United States.
As Kanneh and Wright told Cella about the black money, Kanneh demonstrated the cleaning process by placing two black pieces of paper in the plastic plate, coating them with liquid from one of the bottles, and then "slosh[ing] [them] around on the plate like he was panning for gold." (App. at 93.) As Kanneh did this, the paper "started to clean up" and "bec[ame] clearer and clearer." (Id.) Once the pieces of paper were clean, they were revealed as two genuine $100 bills. Kanneh told Cella that he and Wright had millions of dollars in black bills in their hotel room but that they needed large amounts of money in order to buy the solvent to clean the bills. Kanneh and Wright then offered to sell Cella $120,000 worth of black bills and the necessary solvent to clean them for $60,000.
Although Cella told Wright and Kanneh that he would try to raise the $60,000, he instead contacted the police, who put Cella in touch with the U.S. Secret Service. At the behest of Secret Service Agent Matt Cimino, Cella contacted Wright and Kanneh to arrange another meeting, telling them he had a friend who also wanted to invest in the black money. Wright and Kanneh agreed to another meeting but stated that if there was a second investor, they wanted $100,000, for which they would deliver $200,000 worth of black money. Cella arranged for Agent Cimino and himself to meet Wright and Kanneh on August 26, 2009, in a Philadelphia hotel room. There, Wright and Kanneh repeated their earlier demonstration for Agent Cimino, cleaning two genuine $100 bills that had been dyed black. They then showed Agent Cimino a suitcase full of black paper, which they claimed was $200,000 worth of "black money" but which was actually plain black construction paper. They told Agent Cimino that they had sufficient cleaning solution with them to clean all $200,000 and that they would sell Agent Cimino the money and the cleaning solution for $100,000. Following that performance and offer, Wright and Kanneh were arrested.
On September 24, 2009, Wright and Kanneh were charged with two counts of possessing and passing altered currency, in violation of 18 U.S.C. § 472; two counts of possessing false or fictitious items, in violation of 18 U.S.C. § 514(a)(2); and one count of conspiring to do the same, in violation of 18 U.S.C. § 371. After Kanneh pled guilty, Wright proceeded to trial. At the conclusion of the evidence, the District Court entered an order of acquittal for the two § ...