PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-3108

___________

UNITED STATES OF AMERICA

v.

DONALD ABRAHAM SOLOMON,

 Appellant

__________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 2-11-cr-00245-001)

District Judge: Honorable Joy Flowers Conti

___________

Argued June 4, 2014

Before: HARDIMAN, SCIRICA and ROTH, Circuit Judges.

(Filed: September 15, 2014 )

Robert L. Eberhardt [Argued]

Rebecca R. Haywood

Office of United States Attorney

700 Grant Street

Suite 4000
2

Pittsburgh, PA 15219

Attorneys for Plaintiff-Appellee

Elisa A. Long [Argued]

Office of Federal Public Defender

1001 Liberty Avenue

1500 Liberty Center

Pittsburgh, PA 15222

Attorney for Defendant-Appellant

____________

OPINION

____________

HARDIMAN, Circuit Judge.

Donald Solomon, the former police chief of a hamlet 

in Southwestern Pennsylvania, was sentenced to more than 

eleven years in prison after pleading guilty to corruption 

charges. In this appeal, Solomon challenges the District 

Court’s application of two provisions of the United States 

Sentencing Guidelines. The first, § 2C1.1(c)(1), is a crossreference that directs the sentencing judge to apply the 

Guidelines range for another crime if, for instance, the 

defendant accepted a bribe “for the purpose of facilitating 

[that] criminal offense.” The second, § 3B1.3, is a two-level 

enhancement for abuse of a position of trust. Both challenges 

present questions of first impression. 
3

I

A

In 2009, Solomon became the police chief of the 

Borough of East Washington, Pennsylvania, after a decade as 

a part-time officer. As chief, he was paid $36,100 a year and 

was unable to moonlight because he had to be available 

around the clock. At about the same time, Solomon and his 

wife divorced after more than fifteen years of marriage. 

Without going into the sordid details of Solomon’s personal 

life, it suffices to note that his behavior after his divorce 

attracted the attention of federal authorities and caused them 

to engage an unidentified confidential informant (CI)—

described by Solomon as “an erstwhile friend”—to probe 

Solomon’s criminal tendencies. Solomon Br. 4.

On June 30 and July 1, 2011, the CI met with Solomon 

to discuss providing security services for an unidentified third 

person. Solomon agreed to run a criminal history check on 

the third person, and also asked the CI if the person wanted to 

Solomon to provide security, as he had “nothing to do on the 

weekends.” The CI said that Solomon might be able to work 

with him on the job, which required following a vehicle and 

ensuring that nothing happened to it. The CI told Solomon he 

would be paid at least “a grand,” to which Solomon replied, 

“[t]here has got to be no paper trail . . . under the table.” 

When Solomon called to inquire about the status of the 

criminal history check, he was told the person seeking 

security had a lengthy criminal record; upon reviewing the 

record with the CI at the police station later that day, 

Solomon observed that the security job “could be drug 

related.” In reference to the third person, Solomon 

responded: “Tell him I’m the best cop money can buy.”
4

Solomon met with the CI again on July 8, 2011, and 

discussed providing security for a 4-kilogram cocaine deal for 

which they would each be paid $500 per kilogram. On July 

27, 2011, Solomon and the CI met with the third person,

“Joseph,” who was really an undercover FBI agent posing as 

a drug trafficker. At the meeting, Solomon agreed to provide 

protection for a multi-kilogram cocaine shipment, and also 

agreed to wear his police uniform and sit in his police car 

while doing so. Joseph, in turn, agreed to pay Solomon and 

the CI $500 per kilogram for their assistance. Solomon also 

asked Joseph for advance notice so he could divert other 

officers away from the drug deal. On August 17, 2011, the CI 

gave Solomon $1,000 cash from Joseph as a “good faith” 

payment in advance of the shipment.

On August 23, 2011, the staged drug deal took place in 

a church parking lot in East Washington. Solomon had a 

shotgun, an AR-15 rifle, and a 9mm handgun with him as he 

sat inside his marked police cruiser with the CI. When the 

transaction was completed, Joseph paid Solomon $1,500, and 

Solomon then gave the CI $700. Solomon agreed to provide 

security for future shipments, and exchanged phone numbers 

with Joseph. He also said he would try to obtain two law 

enforcement-restricted Tasers for Joseph, for $1,000 each; 

Joseph made clear that he planned to use the Tasers to collect 

drug debts.

The next day, Solomon confirmed in a text message to 

Joseph that he would buy the Tasers for a total of $1,700; the 

CI paid Solomon in cash a week later. On September 9, 

2011, Solomon and the CI went to a law enforcement 

equipment store, where Solomon used his official position to 

purchase two Tasers for $1,569.90. Afterward, Solomon sent 

a text to Joseph, telling him he had the two Tasers.
5

On September 14, 2011, Solomon spoke to Joseph on 

the phone and agreed to provide protection for a 10-kilogram 

cocaine shipment on September 26 or 27 while wearing his 

police uniform. Joseph confirmed via text that the transaction 

would occur on the 26th, and Solomon agreed to be there. On 

the 26th, Solomon gave Joseph the Tasers, and instructions on 

how to use them, in a local commuter parking lot. Soon after, 

Joseph and a fellow undercover agent engaged in another fake 

drug deal, while Solomon looked on from his police car. 

Joseph then gave Solomon $5,000 for protecting that 

transaction, as well as $300 as a tip for acquiring the Tasers. 

In total, Solomon was paid $8,800 in connection with the 

drug transactions and Tasers.

On October 26, 2011, Solomon was indicted on three 

counts of extortion under color of official right, in violation of

the Hobbs Act, 18 U.S.C. § 1951. On January 4, 2013, he

entered an open plea of guilty.

B

The United States Probation Office prepared a 

Presentence Investigation Report (PSR), calculating

Solomon’s Sentencing Guidelines range under § 2C1.1, 

which applies to extortion under color of official right. After 

deducting three levels for acceptance of responsibility,

Solomon’s offense level was 19. He had no prior criminal 

history, so his initial Guidelines range was 30 to 37 months’ 

imprisonment. Critical to this case and unfortunately for 

Solomon, § 2C1.1 includes a cross-reference, § 2C1.1(c)(1),

which states: 

If the offense was committed for the purpose of 

facilitating the commission of another criminal 
6

offense, apply the offense guideline applicable 

to a conspiracy to commit that other offense, if 

the resulting offense level is greater than that 

determined above. 

Because Solomon believed he was providing protection for 

two cocaine deals and obtained restricted Tasers with the 

understanding they would be used to collect drug debts, the 

Probation Office determined that Solomon had accepted the 

payments “for the purpose of facilitating” cocaine trafficking. 

Pursuant to the cross-reference, the Probation Office 

calculated Solomon’s offense level under the Guideline for 

conspiracy to commit cocaine trafficking, § 2D1.1, to 

determine whether it was greater than Solomon’s offense 

level under the Guideline applicable to his Hobbs Act crime. 

Because of the large quantity of (fake) cocaine involved (at 

least 5 kilograms but less than 15 kilograms), the base offense 

level was 32, plus a 2-level enhancement for possession of a 

dangerous weapon on account of the guns Solomon had with 

him while he was in his police car “protecting” the drug 

transaction. After applying a 3-level reduction for acceptance 

of responsibility, Solomon’s offense level under the drug 

trafficking Guideline was 31, resulting in a range of 108 to 

135 months, far higher than under the Hobbs Act. 

Solomon argued that the cross-reference should not 

apply because he did not commit and could not have 

committed “another criminal offense,” because everyone else 

involved in the reverse sting that ensnared him was working 

for the government. The District Court disagreed. 

After the issuance of the original PSR, the Government 

also asked the District Court to apply an additional 2-level 
7

enhancement for abuse of a position of trust pursuant to § 

3B1.3, which would further increase Solomon’s Guidelines 

range to 135 to 168 months. Solomon objected on the ground 

that Application Note 6 of § 2C1.1—the section under which 

Solomon’s sentence originated—expressly prohibits the 

application of the abuse of a position of trust enhancement. 

The Government countered that Application Note 6 did not 

apply because Solomon was being sentenced under § 2D1.1 

(drug trafficking), not under § 2C1.1 (Hobbs Act). The 

District Court agreed with the Government and sentenced 

Solomon to 135 months, the bottom of his final Guidelines 

range. This timely appeal followed.

II1

On appeal, Solomon challenges the District Court’s 

application of both the cocaine trafficking Guideline under 

the § 2C1.1(c)(1) cross-reference and the abuse of trust 

enhancement under § 3B1.3. We exercise plenary review over 

a district court’s interpretation of the Sentencing Guidelines. 

United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en 

banc). 

A

Solomon first claims that the District Court erred by 

sentencing him under the cocaine trafficking Guideline 

pursuant to the § 2C1.1(c)(1) cross-reference because he 

“could not be properly charged with or convicted of ‘another 

criminal offense.’” Solomon Br. 14. Specifically, he contends 

 

1

The District Court had jurisdiction under 18 U.S.C. § 

3231. We have jurisdiction under 28 U.S.C. § 1291. 
8

that he “could not properly be charged with intent to 

distribute or distribution of a controlled substance, because 

that offense requires that the defendant distribute actual drugs 

or possess with the intent to distribute actual drugs.” Id. The 

drug deals in Solomon’s case were staged by the 

Government, using fake drugs. Solomon also claims the 

cross-reference should not apply because he could not 

properly be charged with a drug distribution conspiracy since

“all of the other participants in the purported conspiracy were 

government agents.” Id. Thus, he argues, there was no “other 

offense” and no conspiracy. 

Solomon’s arguments on this issue fail because they 

run contrary to the clear language of the Guidelines. He

pleaded guilty to three counts of extortion under color of 

official right, a crime covered by Part C of the Guidelines 

(“Offenses Involving Public Officials and Violations of 

Federal Election Campaign Laws”). The applicable Guideline 

sets a base offense level of 14 for any defendant who was a 

public official, § 2C1.1(a), and also increases the offense 

level if certain characteristics are present, such as more than 

one bribe or extortion. § 2C1.1(b). It then lists the crossreference at issue in this appeal, which reads:

If the offense was committed for the purpose of 

facilitating the commission of another criminal 

offense, apply the offense guideline applicable 

to a conspiracy to commit that other offense, if 

the resulting offense level is greater than that 

determined above. 

§ 2C1.1(c)(1) (emphasis added). According to Application 

Note 5, “resulting offense level” means “the final offense 

level (i.e., the offense level determined by taking into account 
9

both the Chapter Two offense level and any applicable 

adjustments from Chapter Three, Parts A-D.)” The 

Background Commentary to § 2C1.1(c)(1) adds: “For 

example, if a bribe was given to a law enforcement officer to 

allow the smuggling of a quantity of cocaine, the guideline 

for conspiracy to import cocaine would be applied if it 

resulted in a greater offense level.”

The Guidelines thus plainly do not require that the 

defendant could have been charged with “another criminal 

offense”—only that the purpose of the bribe or extortion was 

to facilitate the commission of another crime. This critical 

distinction refutes Solomon’s argument. The Government 

does not contend, nor do the Guidelines require, that Solomon 

actually facilitated another criminal offense. Rather, he 

pleaded guilty to receiving illegal payments and taking 

actions that he thought were furthering cocaine trafficking. 

This doubly corrupt purpose—as opposed to, for instance, a 

public official accepting payments in exchange for taking an 

otherwise legal action—explains why the Guidelines provide 

for increased punishment of defendants covered by the crossreference. 

The few appellate courts that have considered the 

applicability of the cross-reference have reached the same 

conclusion we reach today. In United States v. Ruiz, the Court 

of Appeals for the Fifth Circuit held that the cross-reference 

applied to a Border Patrol agent who accepted payments for 

protecting a cocaine deal that turned out to be a sting 

operation. 621 F.3d 390, 392–93 (5th Cir. 2010) (per curiam). 

Like Solomon, Ruiz challenged the cross-reference by 

arguing that he could not have entered into a conspiracy with 

government agents. Id. at 393–94. The Fifth Circuit 

disagreed, noting that “because Ruiz took bribes to facilitate 
10

the smuggling of cocaine, his offense falls squarely under the 

scenario the [Guideline Background] describes.” Id. at 395. 

Ruiz was consistent with previous decisions of panels of the 

Fifth Circuit. See United States v. Williams, 332 F. App’x 

937, 939–40 (5th Cir. 2009) (“The predicate for application of 

§ 2C1.1(c)(1) is not the existence of a conspiracy, but rather 

that the purpose of the offense was to facilitate the 

commission of another criminal offense.”); United States v. 

Carr, 303 F. App’x 166, 169 (5th Cir. 2008) (“[T]he issue of 

whether a conspiracy between Carr and the informant was 

legally impossible does not affect the applicability of the 

cross reference. By its plain language, § 2C1.1(c)(1) requires 

only that the primary offense be committed ‘for the purpose 

of facilitating’ another offense. . . . USSG § 2C1.1(c)(1) does 

not by its language or stated purpose require that the elements 

of conspiracy be established.”).

Like the Fifth Circuit, a panel of the Fourth Circuit 

reached much the same conclusion, writing that “[a] 

defendant may be sentenced under § 2C1.1(c)’s crossreference provision for a fictitious crime created via a sting 

operation,” including based on the fictitious amount of 

“drugs” involved. United States v. Brannen, 145 F.3d 1326 

(table), 1998 WL 230823, at *2 (4th Cir. May 11, 1998); cf. 

United States v. Shenberg, 89 F.3d 1461, 1474–75 (11th Cir. 

1996) (affirming sentence under cross-reference when 

defendant provided information under belief that it would 

result in murder). 

Solomon makes a policy argument that sentencing him 

as a cocaine trafficker thwarts the Guidelines’ intent to 

balance a defendant’s actual conduct with his charged 
11

conduct. U.S.S.G. Ch. 1, Pt. A, Policy Statement 4(a).2

According to Solomon, applying the cross-reference causes 

him to be sentenced for neither his real offense nor his 

charged offense. Rather, he was sentenced as if he committed 

conspiracy to commit cocaine trafficking, an offense he could 

not have committed on these facts despite being charged with 

violating the Hobbs Act. This did not stop the Fifth Circuit 

from applying the cross-reference in Ruiz, or its panels from 

doing so in Williams and Carr, but Solomon attempts to 

distinguish his case by arguing that the Fifth Circuit did not 

consider his policy argument. He additionally notes that 

Shenberg, Brannen, and United States v. Burke, 431 F.3d 883 

(5th Cir. 2005), involved actual conspiracies. Even conceding 

that Solomon’s case is different, however, his argument runs 

headlong into the text of the cross-reference, which says 

nothing about whether other conduct could have been charged 

and certainly does not require it. Moreover, the crossreference is part of the Hobbs Act sentencing Guideline.

 

2

See also United States v. Baird, 109 F.3d 856, 869 

(3d Cir. 1997):

The Guidelines are, at bottom, a 

modified real offense system . . . . More 

specifically, they are a mix of a charge offense 

system and a pure real offense system in that it 

bases a sentence on both the formal offense of 

conviction and on the actual conduct of the 

defendant. . . . Therefore, it is clear that the 

Guidelines envisioned that sentencing courts 

would consider at least some conduct for which 

a defendant was not actually charged.
12

We recognize Solomon’s understandable frustration 

with receiving a significantly higher sentence based on a 

quantity of fake drugs determined at the discretion of the 

Government. Had “Joseph” asked Solomon to “provide 

protection” for a shipment involving only 1 kilogram of 

cocaine, for instance, Solomon’s offense level would have 

been 27 and his Guidelines range 70 to 87 months, a little 

more than half his actual Guidelines range. Then-Chief Judge 

Edith Jones addressed this concern in Williams, which was 

factually similar to Solomon’s case. There, Williams twice 

agreed to “escort a shipment of cocaine as it passed through 

the county in exchange for cash payments from an undercover 

agent.” 332 F. App’x at 938. He believed the first shipment 

contained 5 kilograms and the second 10 kilograms. Id. Like 

Solomon, Williams had no previous criminal record. Id. A 

panel of the Fifth Circuit affirmed the application of the 

cross-reference in a per curiam opinion. Id. In a footnote, 

Judge Jones agreed that the sentence “must be affirmed under 

applicable law,” but also opined that she “strongly believe[d] 

that the government miscarried justice by insisting” that 

Williams “be sentenced . . . on the basis of contrived amounts 

of non-existent cocaine.” Id. at 937 n.1. 

Although we have not spoken to the issue, other courts 

have raised similar concerns about the potential for 

government manipulation of the Guidelines range in reverse 

sting operations. See United States v. Sed, 601 F.3d 224, 229–

30 (3d Cir. 2010). However, for purposes of Solomon’s 

appeal, we note that the Guidelines address the reverse-sting 

context by focusing on the agreed-upon amount of the 

controlled substance to determine the quantity of drugs 

involved for sentencing purposes. § 2D1.1 cmt. 5. While it is 

true that the Government suggested specific quantities of 
13

cocaine, it is also true that Solomon willingly acceded to the 

plan at a time when he still believed real drugs were involved. 

See Brannen, 1998 WL 230823 at *1 (“Although [the 

quantity of drugs] was suggested by the informant, Brannen 

never objected or requested that the informant reduce the 

quantity.”). 

Solomon next contends that even if he did commit 

extortion for the purpose of committing another criminal 

offense, that offense would be conspiracy with intent to 

distribute a controlled substance, meaning that under the 

cross-reference the District Court would sentence him for 

conspiracy to commit conspiracy to distribute drugs—a 

nonexistent “double inchoate crime.” Solomon Br. 16. We are 

unpersuaded. The facts make clear that Solomon accepted 

payments with the intent to facilitate cocaine trafficking. 

Therefore, we “apply the offense guideline applicable to a 

conspiracy to commit [cocaine trafficking].” § 2C1.1(c)(1). 

This is so because agreeing to accept an illegal payment to 

facilitate another crime is akin to joining a conspiracy to 

commit that crime and can be punished accordingly. The 

example provided in the Guidelines Background—“if a bribe 

was given to a law enforcement officer to allow the 

smuggling of a quantity of cocaine, the guideline for 

conspiracy to import cocaine would be applied”

3—only 

reinforces our interpretation. 

Nor is Solomon correct that if any cross-reference 

encompassed his conduct, it was § 2C1.1(c)(2), which applies 

“[i]f the offense was committed for the purpose of 

concealing, or obstructing justice with respect to, another 

criminal offense.” Although Solomon asked the CI for 

 

3

§ 2C1.1 Commentary, Background. 
14

advance notice of the transaction so he could assign other 

officers away from the meeting place, his conduct was more 

akin to “facilitation” than “concealment” or “obstruction.” 

Facilitation is prospective; the defendant accepts payments to 

further the commission of a crime, which is what happened 

here. By contrast, concealment and obstruction are 

retrospective, and apply after a crime has already occurred 

and the defendant accepts payments to cover it up or to 

impede an ongoing investigation. See, e.g., United States v. 

Pompey, 17 F.3d 351, 352–53 (11th Cir. 1994) (bribe paid to 

law enforcement officials to drop cocaine charges “was for 

the purpose of obstructing justice in another criminal offense” 

such that Guidelines cross-reference could apply).

Finally, we decline Solomon’s request to apply the rule 

of lenity, because the language of § 2C1.1(c)(1) is not 

ambiguous. Solomon argues that the Guidelines do not define 

“another criminal offense,” leaving it unclear “whether [it] 

means an actual offense for which a defendant could have 

been properly charged or convicted, or something else.” 

Solomon Br. 20. Again, the Guidelines state that for the 

cross-reference to apply, the defendant must accept payments 

“for the purpose of facilitating the commission of another 

criminal offense.” § 2C1.1(c)(1). The key word is 

“purpose”—i.e., the reason the defendant accepted the 

payments. Regardless of whether Solomon could be charged

with conspiracy to traffic cocaine, he knew he was accepting 

money to further what he believed to be a drug transaction—

“another criminal offense” above and beyond Hobbs Act 

extortion. This is not ambiguous; it is easily distinguishable 

from conduct that would not qualify, such as if Solomon had 

accepted a payment to write a parking ticket that he could 

have written legally. Accordingly, the cross-reference applies 
15

to Solomon’s conduct and the fact that the Guideline is 

susceptible to criticism on policy grounds does not render it 

ambiguous. The District Court did not err in this regard. 

B

Solomon also challenges the District Court’s 

application of the 2-level enhancement for abuse of a position 

of trust, § 3B1.3,4 which increased his Guidelines range from 

108–135 months to 135–168 months. He argues that the 

enhancement cannot apply to sentences originating under § 

2C1.1—even those, like his, with a Guidelines range 

ultimately determined pursuant to a cross-reference. The 

Government disagrees, contending that the enhancement 

applies because once the cross-reference was triggered, 

Solomon was actually sentenced under § 2D1.1. In light of 

the language, context, and history of the Guidelines at issue, 

we believe Solomon has the better of the argument. 

Although our consideration of this issue requires 

careful analysis of several relevant Guidelines, the parties’ 

dispute essentially boils down to one question: was Solomon 

sentenced exclusively under § 2D1.1? If so, then there is no 

impediment to the application of the abuse of trust 

enhancement against him. Viewed in a vacuum, § 3B1.3 

would apply to Solomon because it is not “included in the 

 

4

“If the defendant abused a position of public or 

private trust . . . in a manner that significantly facilitated the 

commission or concealment of the offense, increase by 2 

levels. This adjustment may not be employed if an abuse of 

trust or skill is included in the base offense level or specific 

offense characteristic.”
16

base offense level or specific offense characteristic” of the 

cross-reference (§ 2D1.1) that applies to him. But Application 

Note 6 to § 2C1.1, the Guideline governing Solomon’s 

convictions, states: “Do not apply § 3B1.3 (Abuse of Position 

of Trust or Use of Special Skill).” This prohibition apparently 

accounts for the fact that § 2C1.1 already provides a 2-level 

increase if the defendant was a public official and allows the 

court to apply an even higher offense level—through the § 

2C1.1(c)(1) cross-reference—if that official solicited or 

received payments “for the purpose of facilitating the 

commission of another offense.” 

To understand how these two provisions interact in 

this case, we must carefully look to Guidelines language 

governing cross-references. As noted previously, 

§ 2C1.1(c)(1) directs a court to “apply the offense guideline 

applicable to conspiracy to commit [another] offense . . . if 

the resulting offense level is greater than that determined 

[under the ordinary Hobbs Act guidelines].” However, a court 

cannot make that comparison without ascertaining the other 

offense level and determining how it should be calculated. 

Here, “the ‘resulting offense level’ means the final offense 

level (i.e., the offense level determined by taking into account 

both the Chapter Two offense level and any applicable 

adjustments from Chapter Three, Parts A-D).” § 2C1.1, 

Application Note 5 (emphasis added). How does the 

sentencing judge determine which Chapter Three adjustments 

are applicable? According to Guidelines General Application 

Principle § 1B1.5(c),5they are “determined in respect to the 

 

5

Part of Guidelines section § 1B1.5, “Interpretation of 

References to Other Offense Guidelines.”
17

referenced offense guideline, except as otherwise expressly 

provided.” (emphasis added). 

The parties here diverge over the meaning of “except 

as otherwise expressly provided.” In Solomon’s view, 

Application Note 6 of § 2C1.1 is exactly the kind of express 

prohibition the Guidelines contemplate. It plainly and without 

exception forbids application of the abuse of trust 

enhancement. To the Government, however, “except as 

otherwise expressly provided” actually means “except as 

otherwise expressly provided in the cross-referenced 

Guideline.” Under this reading, § 2C1.1’s prohibition is 

irrelevant to the calculation of Solomon’s offense level under 

the cocaine trafficking Guideline, because that occurs under 

§ 2D1.1, which does not forbid a court from applying the 

abuse of trust enhancement. 

The parties’ disagreement requires us to determine 

whether § 2C1.1’s express prohibition on applying the abuse 

of trust enhancement extends to offense levels calculated 

under the cross-reference, which necessarily implicates other 

Guidelines. For several reasons, we conclude that it does. 

First, this result makes sense under an order-ofoperations approach. To determine whether the Hobbs Act 

offense level is higher or lower than that “applicable to 

conspiracy to commit [the other] offense,” the sentencing 

judge must calculate the offense level under the crossreferenced Guideline and then compare it to the ordinary 

Hobbs Act offense level, relying on the language of the § 

2C1.1(c)(1) cross-reference. In doing so, the court cannot 

apply an offense level stemming from another Guideline 

without referring back to the language of § 2C1.1, the 

Guideline under which the sentence originates, including
18

Application Note 6. In addition, by the time the court makes 

the comparison, it will have already calculated both possible 

outcomes, so no further enhancements can apply.

Stated another way, Application Note 6’s prohibition 

of the abuse of trust enhancement is effective because the 

sentencing court never abandons § 2C1.1. There is a 

difference between determining an offense level by reference 

to another Guideline and transferring out of one’s original 

Guideline altogether. Even if a defendant ultimately receives 

an increased offense level under the cross-reference, as 

Solomon did, he is still sentenced under § 2C1.1—the 

Guideline governing his offense of conviction—even though 

his offense level is undoubtedly driven by § 2D1.1, courtesy 

of the cross-reference. 

The plain language of the Guidelines also supports 

Solomon’s argument. Section 1B1.5(c) states that in crossreference cases, Chapter Three adjustments “are determined 

in respect to the referenced offense guideline, except as 

otherwise expressly provided.” Here, § 2C1.1 contains an 

express provision, Application Note 6, stating that a specific 

Chapter Three adjustment (the abuse of trust enhancement) 

does not apply. We cannot ignore this, particularly because 

the Government does not point to other Guidelines language 

that supports an alternative interpretation or indicates that a 

sentencing court abandons § 2C1.1 when applying the crossreference. Instead, the Government simply urges us to limit 

the reach of “except as otherwise expressly provided” and 

read Application Note 6 as applying only to offense levels 

calculated under § 2C1.1, not those that use the crossreference. We are more persuaded by Solomon’s view 

because Application Note 6 simply states: “Do not apply 

§ 3B1.3 (Abuse of Position of Trust or Use of Special Skill).” 
19

It does not allow for any exceptions. Therefore, we believe it 

encompasses sentences that rely on the cross-reference to 

determine the offense level. 

The history of § 2C1.1 also bolsters our conclusion, 

because before November 2004 the relevant application note 

did contain an exception for cases in which the offense level 

was determined under a cross-reference. It stated:

Do not apply § 3B1.1 (Abuse of Position of 

Trust or Use of Special Skill), except where the 

offense level is determined under § 2C1.1(c)(1), 

(2), or (3). In such cases, an adjustment from § 

3B1.1 (Abuse of Position of Trust or Use of 

Special Skill) may apply.

§ 2C1.1, Application Note 3 (2003) (emphasis added). 

Amendment 666, a November 2004 revision of the public 

corruption Guidelines, changed the language to its current 

form: “Do not apply § 3B1.3 (Abuse of Position of Trust or 

Use of Special Skill).” Although the “Reason for 

Amendment” section of Amendment 666 does not explain 

why the language was changed, it would be improper for us 

to give no effect to the Sentencing Commission’s amendment. 

See, e.g., Nyhuis v. Reno, 204 F.3d 65, 72 (3d Cir. 2000) (“In 

interpreting [an] alteration in [statutory] language, we must 

presume, as always, that th[e] amendment was intended to 

have ‘real and substantial effect.’” (quoting Stone v. I.N.S., 

514 U.S. 386, 397 (1995))). Under the Government’s reading, 

Solomon would lose under both the prior and current 

versions, even though the Guideline once provided for 

application of the enhancement in cross-reference cases and 
20

no longer does. We cannot accept the Government’s tacit 

insistence that the amendment does no work.6

 

6 Contrary to the dissent’s contention, our 

interpretation of the revised cross-reference comports with 

Amendment 666’s stated purpose of “increas[ing] punishment 

for bribery, gratuity, and ‘honest services’ cases” and

accounts for a defendant’s status as a public official. This is 

so because the cross-reference applies only if the offense 

level under the cross-referenced Guideline is higher than the 

§ 2C1.1 offense level, which already takes public official 

status into account. Prior to Amendment 666, § 2C1.1 set the 

base offense level at 10 for all defendants. Amendment 666 

increased the base offense level to 14 for public officials, 

compared to 12 for all other defendants. Thus, the revised 

Guideline already includes a two-level increase for public 

officials. This helps explain why the abuse of trust 

enhancement no longer applies when the cross-reference is 

used—it is incorporated into the base offense level instead. 

Similarly, it is incorrect to state, as the dissent does, 

that absent the abuse of trust enhancement, “the offense level 

[under the cross-reference] would be the same as if a member 

of the general public had committed this cross-referenced 

crime.” This elides the distinction between a sentence under 

the § 2C1.1 cross-reference and a sentence directly under 

§ 2D1.1. Had Solomon been convicted of cocaine trafficking, 

his offense level would have been determined directly under § 

2D1.1, and he would have been eligible for the abuse of trust 

enhancement. But he was convicted of violating the Hobbs 

Act. Consequently, his sentence should not be compared to 

one imposed upon a defendant who actually committed a 

drug offense. 
21

The Government correctly notes that the amended 

language did not stop a panel of the Fifth Circuit from 

concluding that the enhancement could still apply in crossreference cases. See United States v. Carr, 303 F. App’x 166 

(5th Cir. 2008). Indeed, the District Court also looked to 

Carr, which appears to be the only case to take up this issue 

based on the current Guidelines language, in applying the 

enhancement to Solomon’s sentence. In Carr, the panel 

acknowledged the changed language of the § 2C1.1 

application note, but declared conclusorily that it “does not 

warrant a different result” than that reached in cases under the 

previous language. Id. at 170. Although the panel noted § 

1B1.5(c)’s “except as otherwise expressly provided” language 

on applying Chapter Three adjustments, it did not analyze it 

or otherwise proceed as if it might apply. Instead, it merely 

stated that the application notes to § 2C1.1 do not apply “once 

the offense level is determined pursuant to the crossreferenced guideline.” Id. at 171.

For the reasons noted already, we are convinced that 

Carr got the timing wrong. A court can apply the crossreference—and thus, rely on a different Guidelines range to 

sentence a defendant—only after calculating the offense level 

under both § 2C1.1 and the cross-referenced Guideline (here, 

§ 2D1.1), including “any applicable enhancements” (§ 2C1.1, 

Application Note 5) and determining which is higher. Here, 

the District Court calculated the final offense level under § 

2C1.1 and concluded it was 19. It then stated that “the 

guideline computations related to . . . drug distribution[] 

produces the higher overall offense level” and that 

“[a]ccordingly, the guideline computations will be calculated 

under U.S.S.G. § 2D1.1.” A3. In this case, that would be true 

regardless of when any applicable enhancements were 
22

applied, but the Guidelines nonetheless direct the court to 

calculate the sentence under the cross-referenced Guideline, 

including enhancements, before determining whether to use 

the offense level under § 2C1.1 or the cross-reference. These 

calculations and analyses all take place pursuant to § 2C1.1, 

which prohibits the application of the abuse of trust 

enhancement. Arguing that Solomon was “not sentenced 

under [§ 2C1.1] because of the application of the cross 

reference,” as the Government does, is thus not entirely 

accurate. Solomon’s final Guidelines range was determined 

by the higher offense level of § 2D1.1, but he was sentenced 

pursuant to § 2C1.1, the Guideline applicable to his crime of 

conviction. 

We thus conclude that Application Note 6’s express 

prohibition on the abuse of trust enhancement applies to any 

sentence originating under § 2C1.1, even those that ultimately 

apply the offense level for another Guideline pursuant to the 

cross-reference. Because we conclude the District Court erred 

in applying the abuse of trust enhancement, we must remand 

for resentencing, as on this record we “cannot presume [the 

District Court] would have imposed the same sentence, given 

the opportunity to consider the correctly calculated 

Guideline.” United States v. Langford, 516 F.3d 205, 217 (3d 

Cir. 2008). Of course, we leave to the District Court’s 

discretion the determination of an appropriate sentence in 

light of the corrected Guidelines range of 108 to 135 months. 

* * *

For the foregoing reasons, we will affirm the District 

Court’s application of the cross-reference but reverse its 

application of the abuse of trust enhancement. We therefore 
23

vacate Solomon’s sentence and remand for resentencing in 

accordance with this opinion.
United States v. Solomon

No. 13-3108

_________________________________________________ 

 

ROTH, Circuit Judge, dissenting:

Although I agree with the majority that the District 

Court properly applied the cross reference in § 2C1.1(c)(1), I 

do not believe that the application notes in § 2C1.1 precluded

the District Court from applying an adjustment for breach of 

trust pursuant to § 3B1.3. Rather, I would hold that sentences 

calculated pursuant to a cross reference are not limited by the 

restrictions on adjustments applicable to the original 

Guideline, unless the Guidelines expressly make those 

restrictions applicable when using a cross reference.1 I 

therefore respectfully dissent.

Solomon was eligible to receive a § 3B1.3 adjustment 

for abuse of trust because his sentence was calculated 

pursuant to § 2D1.1, not § 2C1.1. The Guidelines instruct 

that “[i]f the offense level is determined by a reference to 

another guideline . . . the adjustments in Chapter Three 

(Adjustments) also are determined in respect to the referenced 

 

1 As the majority notes, a panel of the Fifth Circuit, in a nonprecedential opinion, has reached the same conclusion. 

United States v. Carr, 303 F. App’x 166 (5th Cir. 2008). In a 

later precedential opinion, the Fifth Circuit has also affirmed 

application of an abuse-of-trust increase when applying the 

cross reference in § 2C1.1(c)(1). See United States v. Ruiz, 

621 F.3d 390 (5th Cir. 2010).
2

offense guideline, except as otherwise expressly provided.” 

Id. § 1B1.5(c). Section 2C1.1 does not “expressly provide[]” 

that the sentencing court must not apply an adjustment for 

abuse of trust pursuant to § 3B1.3 when imposing a sentence 

through the cross reference in § 2C1.1(c)(1). Id. Rather it 

states, in full, “Inapplicability of §3B1.3.—Do not apply § 

3B1.3 (Abuse of Position of Trust or Use of Special Skill).” 

Id. § 2C1.1, cmt. n.6. Although this language plainly bars 

application of § 3B1.3 when the sentence is calculated 

pursuant to § 2C1.1, it is silent as to whether the ban on an 

abuse-of-trust adjustment applies when a cross reference is 

used. As such, it does not “expressly provide[]” that Chapter 

Three adjustments are not to be determined in respect to the 

referenced offense guideline. Id. § 1B1.5(c); see Elliott v.

Archdiocese of N.Y., 682 F.3d 213, 225–26 (3d Cir. 2012) 

(defining “express” as “directly and distinctly stated or 

expressed rather than implied or left to reference” (quoting 

Webster’s Third New International Dictionary 803 

(Merriam–Webster 1986)).

When compared to other Guidelines, it becomes even 

more evident that § 2C1.1 does not expressly limit sentencing 

courts from applying an abuse-of-trust adjustment when the 

cross reference applies. Section 2K1.4(c), to take one 

example, directs courts sentencing a defendant who is 

determined to be a career offender on certain firearms charges 

to determine the guideline sentence by reference to § 4B1.1. 

In addition, § 2K2.4(c) expressly provides that, with certain 

exceptions, “Chapters Three and Four shall not apply to that 

count of conviction.” U.S.S.G. § 2K1.4(c). Unlike § 

2K1.4(c), neither § 2C1.1(c) nor its application notes contain 

such express language precluding application of an abuse-oftrust adjustment when a cross reference is applied. 
3

Simple logic also compels this result. Section 2C1.1 is 

unusual in that it directs the sentencing court to consider both

the Chapter Two offense level and any applicable 

adjustments from Chapter Three when calculating the 

“greater offense level” for purposes of determining whether 

to apply a cross reference. See id. § 1B1.5(d). If the 

limitations on Chapter Three adjustments applied equally to 

sentences calculated under § 2C1.1 directly and those under 

the cross reference, there would be no reason to consider

Chapter Three adjustments at this stage. The Chapter Three 

adjustments would always be the same for both calculations

and consideration of those adjustments would not add 

anything to the base offense level as determined by Chapter 

Two. 

The fact that the relevant application note previously 

expressly indicated that an abuse-of-trust adjustment might 

apply when a sentence is calculated by cross reference should

not change this result. As an initial matter, we should not 

consider the application note’s history because the plain 

meaning of the relevant Guidelines is conclusive. See In re 

Armstrong World Indus., Inc., 432 F.3d 507, 512 (3d Cir. 

2005) (“If the meaning is plain, we will make no further 

inquiry unless the literal application of the statute will end in 

a result that conflicts with Congress’s intentions.”). 

Even considering the fact that the Guideline was 

amended, however, Amendment 666 does not support

Solomon’s argument. The “Reason for Amendment” 

indicates that it was adopted to “increase[] punishment for 

bribery, gratuity, and ‘honest services’ cases while providing 

additional enhancements to address previously unrecognized 

aggravating factors inherent in some of these offenses.” 
4

U.S.S.G. app. C amend. 666 (Supp. 2004). To accomplish 

this end, the Sentencing Commission streamlined several 

previously dispersed Guidelines and provided higher 

alternative base offenses levels for public officials who abuse 

positions of public trust. Id. It would be odd in the extreme 

for the Sentencing Commission to have sought to increase the 

sentences of corrupt public officers by eliminating the use of 

a sentencing increase for abuse of trust when a cross 

reference applies. The cross-referenced Guideline would not 

account for the defendant’s status as a public official, and the 

offense level would be the same as if a member of the general 

public had committed this cross-referenced crime.

2

 A

sentencing court’s failure to apply § 3B1.3 would essentially 

ignore the defendant’s abuse of a position of trust despite the 

Sentencing Commission’s stated view that “offenders who 

abuse their position of public trust are inherently more 

culpable than” other offenders. Id. In contrast to this 

language, there is no indication in the Sentencing 

Commission’s “Reason for Amendment” that supports the 

majority’s view. It is far more reasonable to conclude that the 

 

2

The majority asserts that the cross-reference accounts for a 

defendant’s public official status because § 2C1.1 now sets 

the base offense level two levels higher for public officials as 

compared to other defendants. That increase, however, does 

not apply to drug crimes sentenced pursuant to § 2D1.1 or 

any other offense guideline that would be cross referenced. 

Because the original and cross-referenced guidelines are 

calculated separately and then compared to determine which 

produces the higher resulting offense level, under the 

majority’s view the defendant’s public official status would 

not be accounted for at any point in calculating the result of 

applying a cross reference.
5

Sentencing Commission merely deleted language it thought 

was superfluous from the relevant application note.

Because I believe the District Court committed no

error in applying a sentencing adjustment for abuse of a 

position of trust pursuant to § 3B1.5, I respectfully dissent.