UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-40245

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RANDY D. SALTER,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

February 2, 2001

Before POLITZ, SMITH, and PARKER, Circuit Judges.

POLITZ, Circuit Judge:

Randy D. Salter appeals his two concurrent sentences of 130 months for money

laundering and conspiracy to possess with intent to distribute more than 100 kg of

marihuana. Concluding that the district court erred in not grouping these two counts

under U.S.S.G. § 3D1.2 and not combining Salter’s prior conviction for tax evasion2

with his prior federal conviction for drug trafficking under § 4A1.2, we v acate the

sentence and remand for re-sentencing.

BACKGROUND

Between March 1997 and May 1998, Salter and two others were involved in a

drug conspiracy. They laundered proceeds through the purchase of a house in Corpus

Christi, Texas, which subsequently was used for their illegal activities. An undercover

investi gation culminated in the negotiation for the sale of approximately 90 kg of

marihuana. Once the sale was agreed to, Salter and his co-conspirators were arrested.

The conspiracy involved a total of 135 kg of marihuana, th e 90 kg involved in the

negotiations, and an addi tional 45 kg discovered in the home. The total money

laundered was determined to be $91,046.90 which included $500 in earnest money for

the purchase of the home, $15,546.90 paid toward that purchase, $15,000 paid for the

purchase of a boat, and $60,000 which was to be used to pay the undercover agent for

the 90 kg of marihuana.

Sal ter pleaded guilty to conspiracy to possess with intent to distribute and

money laundering. The PSI prepared for sentencing did not group the two offenses.

The base offense level for the conspiracy charge was 26, with an adjusted offense level

of 30. The base offense level for the money laundering charge was 23, with an

adjusted level of 2 8. The multiple count adjustment under § 3D1.4 resulted in a1 United States v. Rice , 185 F.3d 326 (5th Cir. 1999).

3 combined adjusted offense level of 32. Three levels were subtracted for acceptance of

responsibility, resulting in a total offense level of 29.

Salter received three criminal history points for a prior drug related conviction

and three criminal history points for a conviction for tax evasion, giving him six total

points and a history category of III.

Salter objected at sentencing to the money laundering count not being grouped

with the conspiracy count under § 3D1.2. He also objected to the PSI’s crim inal

history category, claiming that it should have combined the tax evasion with the prior

drug related conviction, thereby assessing a total of only three criminal history points.

The court overruled the objections, adopted the PSI offense level and history category,

sentenced Salter to two concurrent 130 month terms of imprisonment, to be followed

by concurrent 8 year terms of supervised release, and imposed a fine of $2,500. This

appeal followed.

ANALYSIS

We review the trial court’s application of the Sentencing Guidelines de novo and

its findings of fact under the clearly erroneous standard. 1 Arguments raised for the first2 United States v. Dabeit , 231 F.3d 979 (5th Cir. 2000). At sentencing, Salter

relied solely on § 3D1.2(b). On appeal he challenges the failure to group under

subsections (b), (c), and (d). The challenges to subsections (c) and (d) are evaluated

under the plain error standard.

3 927 F.2d 815 (5th Cir. 1991).

4 time on appeal are reviewed for plain error. 2

Salter contends that the district court err ed in refusing to group his drug

trafficking count with his money laundering count under U.S.S.G. § 3D1.2 which

provides:

All counts involving substantially th e same harm shall be grouped

together into a single Group. Counts involve substantially the same harm

within the meaning of this rule:

(a) When counts involve the same victim and the sam e act or

transaction.

(b) When counts involve the same victim and two or more acts

o r transactions connected by a common criminal objectiv e

or constituting part of a common scheme or plan.

(c) When one of the counts embodies conduct that is treated as

a specific offense characteristic in, or other adjustment to,

the guideline applicable to another of the counts.

(d) When the offense level is determined largely on the basis of

the total amount of harm or loss, the quantity of a substance

involved, or some other measure of aggregate harm, or if the

offense behavior is ongoing or continuous in nature and the

offense guideline is written to cover such behavior.

In United States v. Gallo

, 3 we determined that Section 3D1.2 divided offenses

into three categories rega rding grouping: (1) those to which the section specifically

applies; (2) those to which the section specifically does not apply; and (3) t hose for4 185 F.3d 326 (5th Cir. 1999).

5 Gallo

, 927 F.2d at 823 (quoting United States v. Pope

, 871 F.2d 506, 509 (5th

Cir. 1989)).

6 Rice , 185 F.3d at 329.

7 United States v. Haltom , 113 F.3d 43, 45 (5th Cir. 1997).

8 Id.

5 which grouping may be appropriate on a case-by-case basis. As we noted in United

States v. Rice

, 4 grouping of money laundering counts with drug trafficking counts falls

into the third category. G allo found that “the offense level determination for offenses

in this third category ‘is in some parts legal rather than factual, and so is not shielded

by the clearly erroneous standard.’” 5

We previously have addressed this issue. In G allo

, we held that, under

3D1.2(b), distinct societal interests were invaded by the offenses of drug trafficking and

money laundering, thus prohibiting grouping of the offenses under this subsection.

However, when presented with the same issue in Rice , we recognized that the Gallo

decision failed to address the issue under subsection (c). 6 Subsection (c) requires

grouping where one of the counts embodied con duct that was treated as a specific

offense characteristic in the guideline applicable to another of the counts. 7 I n

United States v. Haltom 8 we had held that, when a two point increase was applied to9 Rice , 185 F.3d 326, 329 (5th Cir. 1999).

6 Haltom’s offense level for tax evasion because his unreported income was derived from

criminal activity, in essence, the mail fraud conviction was being counted twice: once

as a basis for the mail fraud conviction, and again as a specific offense characteristic

of the tax evasion count. We there found that the purpose of subsection (c) was to

prevent this type of double counting. The two offenses were required to be grouped

under (c).

The panel in Rice found that the reasoning of Haltom applied to the facts

presented in Rice . Specifically, we there held that:

Rice’s drug offenses were counted twice toward his sentence; once as the

basis for his conviction on his drug counts, and again as a specific offense

characteristic of the money laundering count. This had the effect of

increasing Rice’s money laundering offense level by three pursuant to §

2S1.1(b) beca use he knew or believed the funds he was receiving were

the proceed of the unlawful distribution of marijuana. Thus, it is apparent

that the drug offenses were used to enhance the money laundering offense

level just as the mail fraud offense in Haltom was used to enhance the tax

offense level. 9

Rice is identical to the circumstances at bar. Although the prosecution attempts

to distinguish the cases by maintaining that more money was involved in the money

laundering conviction than in the drug trafficking conviction, this distinction fails. The

holding in Rice is not based on t he fact that there was a dollar for dollar accounting7

between the transactions, nor should it be limited to those facts. Rather, it was based

on the fact that the PSI had added additional points to the money laundering conviction

because Rice knew that the funds were the proceeds of drug activity. This is precisely

the factual scen a rio in the case at bar. The PSI added three points to the money

laundering offense level because Salter knew that the funds were the proceeds of an

unlawful activity involving the distribution of narcotics or other controlled substance.

This is the exact conduct embodied by the drug trafficking count of the conviction.

Therefore, grouping of these charges is required.

Accordingly, we hold that the district court erred when it failed to group counts

one and three under U.S.S.G. § 3D1.2(c). Grouping of these counts would have

resulted in an adjusted offense level of 30 (the higher adjusted offense level of the two

counts). After the three level adjustment for acceptance of responsibility, the total

offense level should have been 27, giving Salter a sentencing range of 87-108 months

(Offense level 27, Criminal History category III). The minimum sentence for this

offense is 12 0 months under 21 U.S.C. 841(b)(1)(B), which is above the maximum

sentence under the guidelines. U.S.S.G. § 5G1.1(b) provides that, “Where a statutorily

required minimum sentence is greater than the maximum of the applicable guideline

range, the statutorily required minimum sentence shall be the guideline sentence.” This

would result in a required sentence of 120 months, unless there is cause for an upward10 See U.S.S.G. § 5G1.1 Commentary

.

11 The prosecution presented no evidence at the sentencing hearing beyond the

PSI.

8 departure from the guidelines. 10 The prosecution did not present any evidence at the

sentencing hearing which would de monstrate that an upward departure would be

appropriate in this case. 11 To the contrary, the prosecution recommended 120 months.

Therefore the appropriate sentence herein is 120 months.

Salter additionally contends that his prior conviction for tax evasion should have

been combined with his prior federal conviction for possession with intent to distribute

because the money he failed to report was the $75,000 profit he received from the drug

trafficking involved in the possession convi ction. U.S.S.G. § 4A1.2 provides that,

“Prior sentences imposed in related cases are to be treated as one sentence for purposes

of § 4A.1.1 (a), (b), and (c).” The com m entary to this subsection states that prior

sentences are related “if they resulted fro m offenses that (A) occurred on the same

occasion, (B) were part of a single common scheme or plan, or (C) were consolidated

for trial or sentencing.” It is clear that the $75,000 which Salter failed to report on his

taxes was the profit from the drug trafficking venture. In U nited States v. Robinson

,

we held that offenses are part of a common scheme or plan where “commission of one

crime entailed the commission of the ot her,” i.e., the second offense could not have12 187 F.3d 516, 520 (5th Cir. 1999).

9 occurred but for the first offense. 12 But for the drug trafficking Salter would not have

had the $75,000. Therefore, he would not have been subject to conviction for tax

evasion. Accordingly, these offenses should have been considered part of a common

scheme or plan.

The prosecution contends that this proposition is a no longer an issue because

the PSI was amended to combine the federal drug trafficking conviction with his other

prior state drug trafficking conviction, thus resulting in zero criminal history points for

the federal conviction. This submission, however, misses the point. Combination of

the two drug off

enses did not remove the points assessed against Salter for the tax

evasion conviction. The two drug trafficking offenses were combined as a result of the

plea agreement, not as a result of removing points for the relation of the drug trafficking

to the tax evasion. The fact that the government voluntarily agreed to combine the drug

offenses does not negate the requirement that the tax evasion offense must be combined

with the drug trafficking offense under § 4A1.1. Therefore, the three criminal history

points assessed against Sal ter for the tax evasion conviction should be removed,

resulting in a total criminal history calculation of three. This reduces Salter’s criminal

history category from III to II. However, this change has no effective impact because10

the required sentence remains at 120 months. The sentence imposed is

VACATED and the matter is REMANDED for re-sentencing consistent herewith.