The opinion of the court was delivered by: (Judge Conner)
On June 13, 2011, defendant Alexander Ojiri ("Ojiri") entered a plea of guilty to a one-count information charging him with conspiracy to commit mail fraud, wire fraud, and money laundering in violation of 18 U.S.C. § 371. (Doc. 40). Thereafter, in accordance with the court's order, the United States Probation Office prepared a Presentence Report ("PSR"). (Doc. 41). Sentencing in this matter is scheduled for April 25, 2012. (See Doc. 52). There are two outstanding objections to the PSR. This memorandum will address Ojiri's objection to the two-level enhancement pursuant to United States Sentencing Guideline § 2S1.1(b)(2)(B). The court will reserve ruling on the other objection until the time of sentencing.
Ojiri was involved in a mass marketing money laundering scheme in which he acted as a middleman between the fraudulent mass marketers and the complicit agents. Beginning in April 2004 and continuing through December 2009, Ojiri approached Western Union and MoneyGram agents and employees to process suspect money transfers. At Ojiri's direction, agents entered false names, addresses and identifying data for purported senders and converted fraud-induced money transfers to cash for distribution by Ojiri. The government has identified 224 victims for a total loss of $798,742.84.
Pursuant to a plea agreement, Ojiri pled guilty to criminal conspiracy to commit mail fraud, wire fraud, and money laundering in violation of 18 U.S.C. § 371. The maximum term of imprisonment is five years. Id. In calculating Ojiri's advisory guideline range, pursuant to the Guideline Manual, the probation officer treated the conspiracy conviction as a separate count of conspiracy for each offense-mail fraud (18 U.S.C. § 1341), wire fraud (18 U.S.C. § 1343) and money laundering (18 U.S.C. § 1956). See U.S.S.G. § 1B1.2(d). The counts were grouped pursuant to U.S.S.G. § 3D1.2(c) and the offense with the highest offense level-money laundering-was used. The money laundering guideline is § 2S1.1.
The probation officer calculated a base offense level of 26 under § 2S1.1 and Ojiri does not contest that calculation. The probation officer went on, however, to assess a two-level enhancement under § 2S1.1(b)(2)(B). The enhancement applies if the defendant was convicted under 18 U.S.C. § 1956. See U.S.S.G. § 2S1.1(b)(2)(B). Ojiri objects to this enhancement, asserting that he was not convicted under 18 U.S.C. § 1956. Instead, he pled guilty to conspiracy to commit mail fraud, wire fraud and money laundering under 18 U.S.C. § 371. The probation officer stands by the two-level enhancement and directs the court to Application Note 6 of U.S.S.G. § 1B1.3 as the basis of the applicability of the enhancement under § 2S1.1(b)(2)(B) to Ojiri's conspiracy conviction. The government concurs with the probation officer's application of the enhancement.
When it comes to interpreting the Sentencing Guidelines, the Third Circuit instructs that the Sentencing Guideline commentary or application notes are authoritative and are to be accorded "controlling weight" unless they violate the Constitution, a federal statute or are plainly erroneous or inconsistent with the regulation. United States v. Lianidis, 599 F.3d 273, 278 (3d Cir. 2010) (quoting Stinson v. United States, 508 U.S. 36, 45 (1993).
On its face, § 2S1.1(b)(2)(B) requires a conviction under 18 U.S.C. § 1956 to apply the two-level enhancement. However, Application Note 6 of § 1B1.3, one of the general application principles of the Sentencing Guidelines, indicates that the enhancement applies to defendants convicted of conspiracy to commit the identified statute, in this case money laundering. See U.S.S.G. § 1B1.3 cmt. 6.
Section 1B1.3 is one of the general application principles governing relevant conduct, or, the factors that determine a defendant's guideline range. See U.S.S.G. § 1B1.3. Application Note 6 to § 1B1.3 provides as follows:
A particular guideline (in the base offense level or in a specific offense characteristic) may expressly direct that a particular factor be applied only if the defendant was convicted of a particular statute. For example, in § 2S1.1 (Laundering of Monetary Instruments; Engaging in Monetary Transactions in Property Derived from Unlawful Activity), subsection (b)(2)(B) applies if the defendant "was convicted under 18 U.S.C. § 1956". Unless such an express direction is included, conviction under the statute is not required. . ..
Unless otherwise specified, an 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 conspiracy, attempt, solicitation, aiding or abetting, accessory after the fact, or misprision of felony in respect to that particular statute. For example, § 2S1.1(b)(2)(B) (which is applicable only if the defendant is convicted under 18 U.S.C. § 1956) would be applied in determining the offense level under § 2X3.1 (Accessory After the Fact) in a case in which the defendant was convicted of accessory after the fact to a violation of 18 U.S.C. § 1956 . . ..
U.S.S.G. § 1B1.3, cmt. n.6.
Admitting that the application note indicates the applicability of the enhancement under § 2S1.1(b)(2)(B) to the instant matter, Ojiri contends that Application Note 6 should not be accorded controlling weight because it conflicts with the plain language of § 2S1.1(b)(2)(B), which expressly requires a conviction for money laundering. (Doc. 46, at 3). Ojiri points out that there is no mention of conspiracy in the guideline provision nor in the application notes to § 2S1.1(b)(2)(B). (Id.) Ojiri further contends that in determining the specific offense characteristics, it is not appropriate to refer back to § 1B1.3, that is, ...