2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-1-2011

USA v. Justine Wright

Precedential or Non-Precedential: Precedential

Docket No. 10-2970

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Recommended Citation

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-2970

_____________

UNITED STATES OF AMERICA,

v.

JUSTINE WRIGHT, 

Appellant

_______________

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

_______________

Argued

April 14, 2011

Before: FISHER, JORDAN and COWEN, Circuit Judges.

(Filed: June 1, 2011)

_______________
2

Robert Epstein

Brett G. Sweitzer [ARGUED]

Mark T. Wilson

Defender Association of Philadelphia

Federal Court Division

501 Walnut Street - #540 West

Philadelphia, PA 19106

 Counsel for Appellant

Maria M. Carrillo

Robert A. Zauzmer [ARGUED]

Office of United States Attorney

615 Chestnut Street - #1250

Philadelphia, PA 19106

 Counsel for Appellee

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

I. Background

Justine Wright1appeals 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 

 

1

In the record and briefs, Wright is referred to as both 

“Justin Wright” and “Justine Wright.” We use “Justine” here, 

as that name was used by Wright in his notice of appeal.
3

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.

A. Factual History

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 
4

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 
5

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. 

B. Procedural History

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 

§ 514(a)(2) charges, after which the jury convicted Wright on 

the remaining charges of possession of altered currency and 

conspiracy.

In preparation for a sentencing hearing on June 29, 

2010, a presentence investigation report recommended an 

offense level of 17, calculated by taking a base offense level 

of 9, pursuant to United States Sentencing Guidelines 
6

(“U.S.S.G.” or the “Guidelines”) § 2B5.1(a),

2

and adding to it 

an 8-level enhancement pursuant to U.S.S.G. § 2B5.1(b)(1). 

Section 2B5.1(b)(1) states:

If the face value of the counterfeit items (A) 

exceeded $2,000 but did not exceed $5,000, 

increase by 1 level; or (B) exceeded $5,000, 

increase by the number of levels from the table 

in §2B1.1 (Theft, Property Destruction, and 

Fraud) corresponding to that amount.

The table in § 2B1.1, in turn, calls for an 8-level enhancement 

for amounts between $70,000 and $120,000.

Wright objected to the application of the 8-level 

enhancement, arguing that § 2B5.1(b)(1) called for any 

enhancement to be based on “the face value of the counterfeit 

items,” which all parties acknowledged was $400, that is, the 

four $100 bills used in the demonstrations. The District Court 

overruled Wright’s objection, concluding that, despite 

§ 2B5.1(b)(1) referencing only the “face value of the 

counterfeit items,” the enhancement could be applied based 

on the loss Wright intended to cause. The Court explained:

I don’t think that there is any question that the 

sentencing commission never anticipated the 

 

2 U.S.S.G. § 2X1.1, which covers conspiracy 

convictions under § 371, directs the sentencing court to use 

the base offense level from the Guideline provision applicable 

to the substantive crime, which, in this case, is § 2B5.1. As a 

result, Wright’s conviction for conspiracy under § 371 did not 

alter the base offense level.
7

situation that we have before us. This is 

something new. Okay. And I am confident that 

had it been presented with such a case as this, 

that it would focus on what the intended loss 

was as opposed to the actual altered 

currency. ... What they were using here is a 

scam and I believe that if the commission were 

to consider it, that they would calculate the 

offense level based upon the total loss. And 

therefore, I am going to deny your request to 

change that.

(App. at 312-13.)

Based on that calculated offense level of 17 and a 

criminal history category of III, the recommended Guidelines

sentence was 30 to 37 months’ imprisonment. After 

analyzing the 18 U.S.C. § 3553(a) factors, the Court varied 

downward, and imposed a sentence of 20 months’

imprisonment and three-years’ supervised release.3 In doing

so, the Court stated that the sentence it imposed was the same 

as it would have imposed even if the 8-level enhancement 

pursuant to § 2B5.1(b)(1) did not apply. 

Wright’s timely appeal followed. 

II. Jurisdiction and Standard of Review

The District Court had jurisdiction pursuant to 18 

 

3 Neither party has objected to the variance under 

§ 3553(a), and, therefore, it is not discussed herein.
8

U.S.C. § 3231, and we have jurisdiction pursuant to 18 U.S.C. 

§ 3742(b) and 28 U.S.C. § 1291.

In sentencing a defendant, district courts follow a 

three-step process: At step one, the court calculates the 

applicable Guidelines range, United States v. Tomko, 562 

F.3d 558, 567 (3d Cir. 2009), which includes the application 

of any sentencing enhancements, United States v. Shedrick, 

493 F.3d 292, 298 n.5 (3d Cir. 2007). At step two, the court

considers any motions for departure and, if granted, states 

how the departure affects the Guidelines calculation. Tomko, 

562 F.3d at 567. At step three, the court considers the 

recommended Guidelines range together with the statutory 

factors listed in 18 U.S.C. § 3553(a) and determines the 

appropriate sentence, which may vary upward or downward 

from the range suggested by the Guidelines. Tomko, 562 F.3d 

at 567.

Our review of a criminal sentence is for abuse of 

discretion and proceeds in two stages. Id. First, we review 

for procedural error at any sentencing step, including, for

example, failing to make a “correct computation of the 

Guidelines range” at step one, United States v. Langford, 516 

F.3d 205, 214 (3d Cir. 2008), failing to rely on “appropriate 

bases for departure” at step two, United States v. Ali, 508 F.3d 

136, 148 (3d Cir. 2007) (internal quotation marks omitted), or 

failing to give “meaningful consideration to the § 3553(a) 

factors” at step three, United States v. Merced, 603 F.3d 203, 

215 (3d Cir. 2010) (internal quotation marks omitted).

4

If we 

 

4

The Supreme Court’s decision in Gall v. United 

States lists a number of potential procedural errors, “such as 
9

find procedural error at any step, we will generally “remand 

the case for re-sentencing, without going any further.” Id. at

214. 

If there is no procedural error, the second stage of our 

review is for substantive reasonableness, and “we will affirm 

[the sentence] unless no reasonable sentencing court would 

have imposed the same sentence on that particular defendant 

for the reasons the district court provided.” Tomko, 562 F.3d 

at 568. 

III. Discussion

On appeal, Wright argues that the District Court 

committed procedural error at step one by imposing an 8-

level enhancement for intended loss under U.S.S.G. 

§ 2B5.1(b)(1). He says that, because § 2B5.1(b)(1) sets forth 

an enhancement based only on “the face value of the 

counterfeit items,” applying the enhancement based on 

intended loss was an abuse of discretion. We agree that 

intended loss is not an aspect of § 2B5.1(b)(1), though we do 

not accept all of Wright’s reasoning. 

Both in his briefs and at oral argument, Wright argued 

that the District Court had the option of applying § 2B5.1

with its base offense level of 9 but no enhancement, or 

 

failing to calculate (or improperly calculating) the Guidelines 

range, treating the Guidelines as mandatory, failing to 

consider the § 3553(a) factors, selecting a sentence based on 

clearly erroneous facts, or failing to adequately explain the 

chosen sentence – including an explanation for any deviation 

from the Guidelines range.” 552 U.S. 38, 51 (2007).
10

applying § 2B1.1 “in toto” with a base offense level of 6 and 

an enhancement based on intended loss. However, the 

assertion that either § 2B5.1 or § 2B1.1 could be applied 

under these circumstances is incorrect. Wright was convicted 

of altering four $100 bills in violation of 18 U.S.C. § 472. 

While the statutory index to the Guidelines states that either 

§ 2B5.1 or § 2B1.1 may be applied for convictions under 

§ 472, the index further instructs that “[i]f more than one 

guideline section is referenced for the particular statute, use 

the guideline most appropriate for the offense conduct 

charged in the count of which defendant was convicted.” See

U.S.S.G. app. A. Here, § 2B5.1 states that it applies to 

offenses involving “Counterfeit Bearer Obligations of the 

United States,” whereas § 2B1.1 applies to offenses involving 

“Counterfeit Instruments Other than Counterfeit Bearer 

Obligations of the United States.” The Guidelines define 

“bearer obligations of the United States” as obligations “not 

made out to a specific payee,” including, among other things 

“currency and coins,” and define counterfeiting to include 

altering. U.S.S.G. § 2B5.1 cmt. n.1, 2. Accordingly, because 

the “offense conduct” Wright was charged with was altering 

“bearer obligations of the United States,” namely $400 in 

United States currency, § 2B5.1 is the appropriate base 

Guideline to apply in this case.

The District Court thus properly applied § 2B5.1 and 

its base offense level of 9. Then, relying on the instruction in 

§ 2B5.1(b)(1) to increase the offense level according to the 

table in § 2B1.1“if the face value of the counterfeit 

items ... exceeded $5,000,” the Court concluded that, because 

the intended loss for Wright’s scheme was $100,000, it 

should increase the offense level by 8, the number indicated 
11

in the § 2B1.1 table for values greater than $70,000 and less 

than or equal to $120,000. 

While we have never addressed whether § 2B5.1(b)(1) 

supports an enhancement for intended loss, the language of 

that section directs any enhancement to be based on face 

value only. The government concedes that point, 

acknowledging that § 2B5.1(b)(1) does not support a step-one 

enhancement based on intended loss. The government’s only 

argument on appeal is that the District Court did not apply a 

step-one enhancement but, instead, made a step-two upward 

departure. The government points to U.S.S.G. 

§ 5K2.0(a)(2)(B), which allows upward departures where 

“there is present a circumstance that the Commission has not 

identified.” Although the Court never used the word 

“departure,” the government argues that the Court’s statement

that “the sentencing commission never anticipated the 

situation that we have before us” invoked § 5K2.0(a)(2)(B) 

and should be viewed as a departure. 

We do not dispute the District Court’s conclusion that 

“the sentencing commission never anticipated the situation” 

presented by this case. (App. at 312.) Indeed, the primary

harm in a scheme of the sort at issue here is the amount 

sought by the fraud, not the nominal value of the currency 

defaced to perpetrate the fraud. Thus, by focusing on the 

value of the defaced currency, § 2B5.1 does not address the 

gravamen of the harm, as the District Court quite rightly 

pointed out.

5 A step-two upward departure for unidentified 

 

5 We note that, because of its focus on the face value 

of the counterfeit items, rather than intended loss, § 2B5.1 

would not distinguish between a black money scheme that 
12

circumstances under § 5K2.0(a)(2)(B) would therefore be 

justified, as would a step-three upward variance under 

§ 3553(a)(2)(A) “to reflect the seriousness of the offense,”

and the District Court might have legitimately reached the 

imposed sentence or a similar one through either or both of 

those procedural mechanisms. 

Nonetheless, despite the government’s argument to the 

contrary, that is not what the Court did. The record plainly 

shows that the District Court imposed a step-one 

enhancement. The Court overruled Wright’s objection to the 

application of the 8-level enhancement and stated that “the 

offense level will remain at 17.” (App. at 313.) As Wright 

correctly notes, “[i]f the district court had imposed a step-two 

departure, the court would have sustained Mr. Wright’s 

objection to the enhancement, identified the applicable 

Guidelines range as 8-14 months, and then proceeded to 

upwardly depart from that range. Instead, the court squarely 

overruled Mr. Wright’s objection.” (Reply Brief for 

Appellant at 3 (emphasis in original).) Furthermore, the 

government never made a motion for an upward departure, 

nor did the District Court so much as mention the word 

“departure.” There is simply no basis in the record to 

conclude that the District Court did anything other than apply 

a step-one enhancement for intended loss based on 

§ 2B5.1(b)(1). Because § 2B5.1(b)(1) requires any 

enhancement to be based on the face value of the counterfeit 

 

attempted to defraud a victim of $1,000 and one that 

attempted to defraud a victim of $1,000,000. Plainly, the 

sentencing commission did not have this kind of scheme in 

mind when they penned § 2B5.1.
13

items, the District Court erred in imposing an enhancement 

based on intended loss.

We acknowledge that a “form over substance” 

criticism can be leveled at that conclusion, but we are bound 

to follow what we perceive to be the plain meaning of the 

Guidelines. Furthermore, in the sentencing context it is 

firmly established that form – i.e. procedure – and substance 

are both of high importance. We have a responsibility “to 

ensure that a substantively reasonable sentence has been 

imposed in a procedurally fair way.” United States v. 

Levinson, 543 F.3d 190, 195 (3d Cir. 2008); see also Merced, 

603 F.3d at 214-15 (“[T]he broad substantive discretion 

afforded district courts ... makes adherence to procedural 

sentencing requirements all the more important.”). And, of 

course, our recognition that the District Court could reach this 

same result by use of a departure or variance does not mean 

that that result is compelled. On remand, Wright will have 

the opportunity to argue that neither a departure nor a 

variance is warranted, something he was unable to do in the 

first instance. We cannot say whether the District Court will 

be persuaded by those arguments and, thus, cannot say 

whether the resulting sentence on remand will be identical to 

that already imposed.6 

 

6

The District Court’s statement that it would have 

imposed the same sentence whether or not it had applied the 

8-level enhancement does not affect our disposition. We 

have previously held that a statement by a sentencing court 

that it would have imposed the same sentence even absent 

some procedural error does not render the error harmless 

unless that “alternative sentence” was, itself, the product of 

the three step sentencing process. United States v. Smalley, 
14

Although the identified error requires that we vacate 

and remand, we emphasize again our agreement with the 

District Court’s conclusion that § 2B5.1 does not address the 

circumstances of this case. As we have already noted, the 

focus of § 2B5.1 on face value fails to capture the seriousness 

of Mr. Wright’s crime, and we endorse the District Court’s 

efforts to ensure that the sentence imposed is adequate in light 

of all relevant circumstances. We remand solely because 

those circumstance needed to be addressed at steps two or 

three of the sentencing process, rather than through the 

imposition of a step-one enhancement that, by its terms, does 

not apply.

IV. Conclusion

For the foregoing reasons, we will vacate Wright’s 

sentence and remand for resentencing.7

 

517 F.3d 208, 214-16 (3d Cir. 2008). Here, the District Court 

said only that it would have imposed the same sentence even 

absent the 8-level enhancement, without explaining what the 

Guidelines range would have been without the enhancement, 

and without explaining why an upward departure or variance 

would be merited from that range. As the government 

concedes, that alternative sentence is procedurally insufficient 

and does not render the error here harmless.

7 Wright completed serving the 20-month sentence on 

February 8, 2011. The case is not moot, however, because 

Wright is still serving his period of supervised release and if, 

on remand, the District Court imposes a sentence of 

imprisonment less than the 20 months served, Wright may 

receive credit against his supervised release period for the 

excess months of imprisonment. See United States v. 
15

 

Cottman, 142 F.3d 160, 165 (3d Cir. 1998) (holding that a 

sentencing appeal was not mooted by the prisoner’s release 

because if “the appropriate sentencing range [was] 

reduced ... . [it] would likely merit a credit against [the 

prisoner’s] period of supervised release for the excess period 

of imprisonment”).