United States Court of Appeals

Fifth Circuit



## FILED

April 14, 2003

Charles R. Fulbruge III

Clerk REVISED APRIL 28, 2003

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-60285

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES ORIN OGLE,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Mississippi

Before GARWOOD, SMITH and BARKSDALE, Circuit Judges.

GARWOOD, Circuit Judge:

James Ogle appeals his conviction and sentence for conspiring

to launder monetary instruments and laundering monetary instruments

in violation of 18 U.S.C. §§ 1956(h) and 1956(a)(3)(B), (C). Ogle

was charged in a two-count indictment arising from an agreement to2

launder money represented to be the proceeds of drug smuggling. He

was subsequently convicted by a jury on both counts and sentenced

to concurrent terms of 121 months’ imprisonment followed by three

years’ supervised release. For the reasons set forth below, we

affirm the conviction, vacate the sentence, and remand for resentencing.

Background

Ogle, an Atlanta businessman, was arrested as part of a

reverse-sting operation conceived and orchestrated by Wendell

Blount, a confidential informant for the Un ited States Customs

Service acting under the direction of Customs Service Special Agent

Michael Tyson. The sting operation began after Blount was directed

by acquaintances to Casey Hemmings as someone “could get some money

cleaned up” for him.

Based on that referral, Blount and Special Agent Tyson agreed

to contact Hemmings with a proposal to launder a fictitious twelve

million dollars in cash that Blount decided to describe to Hemmings

as the proceeds of illegal narcotics smuggling. Upon returning to

Mississippi, Blount contacted Hemmings and arranged to meet him in

a Biloxi hotel room to discuss the proposed transaction. After

arranging for Customs Service surveillance of the meeting, Blount

met Hemmings on March 3, 2001. During that meeting, Blount

revealed the fictitious details of the source of the cash, and

Hemmings, although initially apprehensive about the matter, agreed1 Any reluctance to participate in the transaction on

Hemmings’s part appeared to be driven less by an unwillingness to

engage in illegal activity, and more by a fear of law enforcement

and of other risks related to becoming involved, even

tangentially, with large-scale narcotics smuggling. Hemmings

repeatedly referred to the risk of “being set up,” and at one

point during their initial meeting, even insisted on searching

Blount; at another point, Hemmings expressed concern that a third

party might come looking for the laundered money.

3 t o handle the proposed money laundering transaction for Blount. 1

At their meeting, Hemmings also informed Blount that the

transaction would be hand led in part by Hemmings’s business

partner, James Ogle. Hemmings subsequently told Blount that he had

explained the matter to Ogle and that Ogle was entirely receptive

to it.

Following their first meeting, Hemmings continued to contact

Blount to arrange the details of the transaction, and on March 28,

2001, Hemmings introduced Ogle to Blount. At a meeting on March

28th, Ogle presented Blount with a number of proposals for

laundering the fictitious cash, despite only thinly veiled

indications from Blount that the cash represented the proceeds of

narcotics smuggling. Later, when Hemmings, initially a central

figure in the scheme, assumed a less active role following his

arrest on an unrelated matter in Florida, Ogle took over the

planning of the transaction.

After some delay during which Ogle repe a tedly telephoned

Blount, pressuring Blount to complete the deal, Ogle and Blount

eventually agreed that Ogle would pick up the cash in the parking4

lot of a Biloxi, Mississippi, casino. When Ogle arrived in Biloxi

on May 30, 2001, accompanied by an armed escort, to take possession

of the fictitious twelve million dollars, he not only found that

the cash did not actually exist, but also found himself facing

arrest at the hands of a team of Customs agents.

Discussion

Ogle assigns as error three rulings of the district court: the

district court’s refusal to instruct the jury on the defense of

e ntrapment; the exclusion of the proffered testimony of Ogle’ s

expert witness; and the district court’s refusal to consider a

three-level reduction of Ogle’s sentence under the general

conspiracy provision of the sentencing guidelines. We address each

point of error in turn and conclude that only the t hird, the

calculation of Ogle’s sentence under the guidelines, has merit.

A. Entrapment

Where there is an evidentiary foundation for a theory of

defense that, if credited by the jury, “would be legally sufficient

to render the accused innocent,” it is reversible error to refuse

a charge on that theory. United States v. Schmick , 904 F.2d 936,

943 (5th Cir. 1990). Thus, “when a defendant’s properly requested

entrapment instruction is undergirded by evidence suffic ient to

support a reasonable jury’s finding of entrapment, the district

court errs reversibly by not adequately charging the jury on the

theory of entrapment.” United States v. Bradfield , 113 F.3d 515,5

521 (5th Cir. 1997). Accordingly, we review d e novo the refusal to

instruct the jury on the defense of entrapment. Id

.

“The critical determination in an entr apment defense is

whether criminal intent originated with the defendant or with the

government agents.” I d. at 521. That the Government provided the

opportunity for Olge to commit the offense of money laundering by

employing a confidential informant and fabricating the existence of

the money to be laundered does not, in itself, entitle Ogle to an

entrapment instruction. “[T]he Government may use undercover

agents to enforce the law,” and “artifice and stratagem may be

employed to catch those engaged in criminal enterprises.” J acobson

v. United States

, 112 S.Ct. 1535, 1540 (1992). Entrapment only

arises, rather, where the Government, in its “zeal to enforce the

law,” “implant[s] in an innocent person’s mind the disposition to

commit a criminal act, and then induce[s] commission of the crime

so that the Government may pro secute.” I d

. Before he will be

entitled to an entrapment defense, therefore, the defendant bears

the burden of presenting evidence of both “(1) his lack of

predisposition to commit the offense and (2) some governmental

involvement and inducement more substantial that simply providing

an opportunity or facilities to commit the off ense.” B radfield

,

113 F.3d at 521.

After reviewing the record, we conclude that the district

court did not err in refusing an entrapment instruction. We find2 Neither Ogle nor Hemmings testified. Ogle did attempt to

introduce the testimony of a financial expert who was prepared to

testify that Ogle lacked the positional predisposition to engage

in money laundering. As discussed infra , however, the district

court properly excluded that testimony and it cannot, therefore,

be relied upon to satisfy Ogle’s burden of producing evidence

establishing a lack of predisposition.

3 In his brief, Ogle places great weight on the assertion

that the Government presented no evidence to show that he knew of

the illegal nature of the proposed transaction before meeting

Blount in Mississippi. That assertion, even if true, however,

does not establish a lack of predisposition. Rather, it merely

indicates the extent to which Ogle misapprehends his burden of

producing evidence of a lack of predisposition. To say that the

Government failed to show that Ogle knew of the putatively

illegal source of the funds before meeting with Blount does not

demonstrate that Ogle satisfied his initial burden of producing

more than a scintilla of evidence of a lack of predisposition.

Ogle’s predisposition is a question independent of the question

of when he learned that the fictional cash represented the

proceeds of unlawful activity.

6 that Ogle failed to satisfy his initial evidentia ry burden,

producing substantial evidence neither of a lack of predisposition

to commit t he offense of money laundering, nor of government

actions that amounted to more than simply providing him with the

occasion to launder money.

Ogle does not point to any evidence in the record indicating

a lack of predisposition to engage in money laundering, nor does a

review of the record indicate that Ogle established that he lacked

the necessary predisposition to commit the offense. 2 On the

contrary, the uncontradicted record reflects that Ogle, f ar from

being a reluctant party to the proposed transaction, was a keen

participant in the conspiracy, eage r to see the transaction

consummated. 3 Ogle arrived at his first meeting with BlountMoreover, Ogle’s argument that he did not know that the

funds were the proceeds of narcotics smuggling evinces a

misunderstanding of the mens rea necessary for a conviction under

§ 1956. A conviction for money laundering does not require that

the defendant know the precise source of the illegal funds, but

only that the defendant know that the funds are “proceeds of some

form of illegal activity .” 18 U.S.C. § 1956(a)(1) (emphasis

added); see also § 1956(c)(1) (must know that “the property

involved . . . represented proceeds from some form, though not

necessarily which form, of activity that constitutes a felony

under State, Federal, or foreign law, regardless of whether or

not such activity is specified in paragraph (7)”); S.Rep. No. 99-

433, at 12 (1986) (“[T]he defendant need not know exactly what

crime generated the funds involved in a transaction, only that

the funds are the proceeds of some kind of crime that is a felony

under Federal or State law. This will eviscerate the defense

that a defendant knew the funds came from a crime, but thought

the crime involved was a crime not on the list of ‘specified’

crimes in section (c)(7).”).

4 Ogle’s apparent ease in discussing these various

proposals indicates a degree of familiarity with money laundering

sufficient to support the conclusion that he was predisposed to

engage in money laundering. His reference to the Turkish

diplomat’s prior smuggling efforts, for example, suggests that

Ogle, even if not having previously engaged directly in the

smuggling of currency, was, at a minimum, familiar with the

process.

7 prepared to offer a number of options for laundering the fictional

cash, including a proposal to pay a Turkish diplomat ten percent of

the funds t o transport the cash out of the United States and

deposit it in Turkey, and a proposal to pay a development company

that routinely deposited large sums of cash to deposit and then

transfer the illi cit funds. 4 Such demonstrated knowledge of the

details of inte rnational money laundering alone is enough to

establish predisposition. S ee Reyes

, 239 F.3d at 739 (listing a

“demonstrated knowled ge or experience with the criminal activity8

under investigation” as one of a number of factors tending to prove

predisposition). The suspect nature of these proposals reflects

that Ogle prepared in advance for the meeting despite at least some

awareness of the nature of the proposed transaction. Moreover,

there is absolutely no eviden ce that Ogle did n ot know of the

illegal nature of the proposed transaction before his initial

meeting with Blount. Because, “a defendant’s ready and willing

participation in government-solicited criminal activity, standing

alone, is sufficient to prove predisposition,” this uncontradicted,

unimpeached evidence also provided an a dequate basis for the

district court to deny an entrapment instruction. I d

. At no point

did Ogle display any hint of hesitation or unwillingness to enter

into the conspiracy. S ee, e.g.

, United States v. Fischel

, 686 F.2d

1082, 1086 (5th Cir. 1982) (noting that a single act of hesitation,

easily overcome, is insufficient to establish inducement). Rather,

the unc ontradicted evidence reflects that Ogle continued to plan

and to pursue aggressively the proposed transaction even af ter

learning of the illegal source of the ca sh. Thus, when the

trans action appeared on the verge of foundering, Ogle repeatedly

contacted Blount seeking to revive the deal, calling as often as

six times in as many days. C f. Bradfield

, 113 F.3d at 522–23

(finding that a defendant had made a sh owing of a lack of

predisposition where it was the government agent, not the

defendant, who called repeatedly seeking to consummate the criminal9

transaction).

Not only is it clear that Ogle failed to produce evidence of

a lack of predisposition, but he also failed to establish that his

involvement in the proposed money laundering transaction was the

product of government inducement. “The conduct with which the

defense of entrapment is concerned is the manufacturing of crime by

law enforcement officials and their agents.” U nited States v.

Garcia

, 546 F.2d 613, 615 (5th Cir. 1977) (quoting Lopez v. United

States

, 83 S.Ct. 1381, 1385 (1963)). Although the Government

initiated contact with Hemmings and may, therefore, be considered

the immediate cause of the conspiracy, there is no substantial

evidence that it was the Government that implanted in Ogle’s mind

the disposition to commit a criminal act. S ee Jacobson

, 112 S.Ct.

at 1540 (1992).

In denying Ogle’s request for an entrapment instruction, the

district court, relying on United States v. Sarmien to , 786 F.2d

665, 667 (5th Cir. 1986), found that Ogle could not, as a matter of

law, have been entrapped, as any inducement to commit the offense

came not from a government actor, but from Ogle’s co-conspirator,

Hemmings. According to the district court, that Ogle “initially

entered into the conspiracy to launder money at the encouragement

of Hemmings and not a government agent effectively barred [Ogle]5 See United States v. Sarmiento , 786 F.2d 665, 668 (5th

Cir. 1986) (recognizing that “[t]his circuit has not adopted the

‘unsuspecting middleman’ theory of entrapment” ); United States

v. Garcia , 546 F.2d 613, 615 (5th Cir. 1977) (“Entrapment cannot

result from the inducements of a private citizen but must be the

product of conduct by governmental agents.”).

10 from raising the entrapment defense.” 5 Ogle consequently focuses

his efforts on appeal on refuting the Government’s assertion that

Ogle’s inducement to enter into the conspiracy came from Hemmings

and not from the Government’s informant.

Those efforts, however, are of insufficient effect. Even if

Ogle is correct in his highly questionable assertion that there is

no evidence that he w as made aware that the fictitious funds h a d

some illegal source until he met Blount, that fact, standing alone,

does not suffice to raise entrapment. Hemmings was made aware that

the funds had an illegal source, he thereafter brought Ogle into

the mat ter, and there is n o evidence that Ogle, just before his

initial meeting wit h Blount, at which Ogle arrived full of

suggestions, was un aware that the funds had an illegal source. It

is Ogle’s burden to raise the entrapment defense. Moreover, even

if there had been evidence that Ogle first learned there was an

illegal source and the purpose of the proposed transaction from the

confidential informant, such evidence would do no thing more than

establish that the Government afforded Ogle with the facilities for

the commission of a crime, a fact that, by itself, does not entitle

Ogle to an entrapment instruction. More is required before a11

defendant is entitled to an entrapment instruction.

To s atisfy his burden of producing evidence of government

inducement, Ogle was required to present not just a smattering or

a scintilla of evidence of government inducement, but substantial

evidence that it was the Government that was responsible for the

formation of Ogle’s intent to join the conspiracy. S ee Bradfield

,

113 F.3d at 521. Ogle points to no such evidence of inducement on

appeal, and an independent review of the record reveals none.

Because we find that Ogle failed to produce substantial

evidence of either government inducement or a lack of

predisposition to commit the crime of money laundering, we find no

error in the district court’s refusal to instruct the jury on the

entrapment defense.

B. Expert Testimony

In his second point of error, Ogle maintains that the district

court erred in excluding both evidence of his general financial

condition as well as the proffered testimony of a defense expert on

the nature of Ogle’s financial position. “[T]he admissibility of

expert testimony is a matter which rests with in the broad

disc retion of the trial judge and his decision is not to be

disturbed unless it is manifestly erroneous.” U nited State s v.

Lopez

, 543 F.2d 1156, 1158 (5th Cir. 1976). We therefore review a

district court’s decision to exclude expert testimony only for an

abuse of discretion. U nited States v. Triplett

, 922 F.2d 1174,6 After listening to Lindsay’s proposed testimony, the

district court concluded, “[T]he basis of [Lindsay’s] testimony .

. . is rather simplistic. She is saying that [Ogle] could not

commit the crime because he was in a financial dilemma.

Essentially . . . that’s what Ms. Lindsay is saying. I don’t

think that would be of any assistance to the jury.”

7 Ogle also characterizes, for the first time on appeal,

the district court’s decision to exclude Lindsay’s testimony as a

general prohibition of the introduction of any evidence of Ogle’s

financial position. Having set up such a straw man, Ogle then

proceeds to tear it down. Specifically, Ogle argues that because

it demonstrates that his involvement in the conspiracy was driven

not by a predisposition to engage in crime, but by financial

pressure, evidence of his deteriorating financial position was

relevant to the defense of entrapment and its exclusion was

error.

A fatal flaw in Ogle’s argument is that the district court

never prevented Ogle from introducing general evidence of his

financial condition. Ogle offered Lindsay as an expert on the

question of positional predisposition, and the court’s ruling was

limited accordingly, excluding only Lindsay’s conclusion that

Ogle lacked the positional predisposition to commit the offense

of money laundering. At no point did Ogle seek to introduce

other evidence of his financial straits, as motive for his

joining the conspiracy or otherwise, and the district court never

12 1182 (5th Cir. 1991).

At trial, Ogle sought to offer the expert testimony of Shirley

Lindsay, a former IRS Special Agent and fraud examiner. At a

hearing conducted outside the presence of the jury, Lindsay opined

on Ogle’s deteriorating financial situa tion as it related to his

ability to engage in a large-scale money laundering transaction,

and concluded that, in her estimation, Ogle lacked the “positional

predisposition to commit any crime, l et alone money laundering.”

The district court, however, found that the pro ffered expert

testimony would be of little assistance to the jury, and excluded

it. 6 We find no abuse of discretion in that decision. 7clearly ruled that it would have excluded such evidence. Thus,

Ogle waived any complaint as to exclusion of evidence of his

financial condition when he failed to offer any evidence of his

financial situation apart from his general tender of Lindsey’s

testimony as a whole. See F ED

. R. E VID

. 103(a)(2).

13 The concept of positional predisposition has its origins in

the Seventh Circuit’s opinion in United States v. Hollingsworth

, in

which that circuit concluded that the concept of predisposition has

both a positional and a dispositional element. 27 F.3d 1196, 1200

(7th Cir. 1994). To be positionally predisposed to commit a crime,

“[t]he defendant must be so situated by reason of previous training

or experience or occupation or acquaintances that it is likely that

if the Government had n ot induced him to commit the crime some

criminal would have done so.” I d

. The doctrine, however, is a

controversial one, see, e.g.

, United States v. Thickstun

, 110 F.3d

1394, 1398 (9th Cir. 1997) (rejecting the concept of positional

predisposition), and on e that we have, thus far, declined to

recognize. S ee United States v. Reyes

, 239 F.3d 722, 742 (5th Cir.

2001); United States v. Wise

, 221 F.3d 140, 155–56 (5th Cir. 2000).

As we did in Reyes and in Wise we also find it unnecessary

here to recognize the doctrine of positional predisposition. Even

had Lindsay’s expert opinion testimony been admitted into evidence,

Ogle could still not have established that he was not positionally

pre disposed to engage either in a conspiracy to commit money

l aundering or to commit the substantive offense of money

laundering.14

It will be the rare case indeed where a defendant can

establish a lack of positional predisposition to join in a

conspiracy, and we can conclude that Ogle’s is not such a case.

Ogle failed to offer any evidence that he was not positionally

predisposed to join in a conspiracy. The gravamen of a conspiracy

is the agreement to engage in unlawful activity, see United States

v. Holcomb , 797 F.2d 1320, 1327 (5th Cir. 1986). Ogle’s supposed

inability actually to himself launder money has little bearing on

his ability to agree to assist in that endeavor. That Ogle by

himself could not personally have laundered the money is,

therefore, no defense to a charge that Ogle conspired with others

to have the money laundered.

Similarly, Lindsay’s testimony would not have been sufficient

to establish that Ogle was not positionally predisposed to commit

the substantive offense of laundering money. Whether Ogle had the

p ersonal financial resources to by himself conduct a large-scale

money laundering transaction is not determinative of the issue of

his positional predisposition to engage in actual money laundering.

Ogle’s positional predisposition to launder money is perhaps

best illustrated by contr asting his situation to that of the

defendants in Hollingsworth

. In H ollingsworth

, the Seventh Circuit

concluded that the defendants, newcomers to the banking business,

did lack the position al predisposition to launder money.

Hollingsworth

, 27 F. 3d at 1202. Unlike the defendants in8 See Hollingsworth , 27 F.3d at 1200 (describing the

defendants’ misguided attempts “to become international

financiers—a vocation for which neither had any training,

contacts, aptitude, or experience”).

15 Hollingsworth

, a farmer and an orthodontist who were relative

novices in the financial world, 8 Ogle was a sophisticated

businessman who, despite having fallen on difficult times, was well

versed in complex financial transactions and was in a position to

take advantage of both his personal experience and the experience

of his business contacts. And although, like Hollingsworth, Ogle

did not have an “up-and-running bank” and may not have had

sufficient assets with which to accomplish the laundering money, he

did have the necessary financial connections and business acumen to

get the money laundered. S ee, e.g.

, Hollingsworth

, 27 F.3d at 1200

(describing one who is positionally predisposed as one who has the

necessary occupation or acquaintances to make the commission of the

crime possible). Accordingly, Ogle’s proposed plans to launder the

money involved the use not of his own financial resources, but of

those of a third party or parties, and his role in the proposed

money laundering transaction was that of a broker, one responsible

for the picking up and transportation of the cash in order to take

advantage of the assets of a third party or parties.

The def ense presented no evidence establishing that Ogle’s

lack of financial resources would have prevented him from

laundering the money by transferring it to a third party or parties16

who did have the necessary assets to deposit twelve million dollars

in cash without unduly arousing suspicion, and there is no evidence

Ogle lacked information concerning or access to such parties (as he

maintained to Blount that he had). We conclude, therefore, that

Ogle’s proposed expert testimony could not have established a lack

of positional pre disposition, and that its exclusion, therefore,

was not an abuse of discretion.

C. Sentencing

In his final point of error, Ogle cha llenges his sentence,

arguing that the district court erred in not considering a threelevel reduction of his guideline offense level under section

2X1.1(b) of the sentencing guidelines.

Following Ogle’s convic tion, the district court declined to

consider granting Ogle a requested three-level reduction, reasoning

only that section 2X1.1 did not apply to offenses under section

1956, as the commentary included with section 2X1.1 listed only

offenses under 18 U.S.C. §§ 371, 372, and 2271. However, upon

reviewing the district court’s interpretation o f the sentencing

guidelines de novo

, see United States v. Heffron

, 314 F.3d 211, 224

(5th Cir. 2002), we agree with Ogle’s conclusion that the district

court erred i n not considering the availability of a three-level

reduction under section 2X1.1(b).

Sections 1B1.2(a) and 2X1.1 clearly direct that section 2X1.1

shall be applied to attempts, conspiracies, and solicitation unless17

the specific attemp t, conspiracy, or solicitation is expressly

covered by the guideline for the substantive offense. S ee U.S.S.G

§§ 1B1.2(a), 2X1.1(c)(1) (2000); United States v. Villafranca

, 260

F.3d 374, 381 (5th Cir. 2001). The Government, however, now

maintains that sectio n 2X1.1 was inapplicable for two reasons.

First, the Government argues that the jury found Ogle guilty not of

attempting to launder money, but of the completed offense of money

laundering. Second, the Government maintains, in a position

advanced for the first time at oral argument, that section 2X1.1

does not apply to offenses under section 1956, since the offense

guideline for money laundering, section 2S1.1, expressly covers

attempts and conspiracies to commit money laundering. We find both

arguments unpersuasive. We initially note that neither contention

was addressed below by either party, or by the Presentence Report

or the district court. The Presentence Report simply took the

position, with which the Government and the district court agreed,

and to which Ogle objected, that section 2X1.1 did not apply to any

section 1956 conviction. That position is erroneous as reflected

by our opinion in Villafranca

.

The Government first argues that Count Two of the indictment

and the instructions to the jury authorized conviction on that

count for both the attempt to complete and the actual completion of

a money laundering transaction. The general verdict of guilty on

that count doe s not reveal which the jury found. Moreover, the9 We will generally not consider points raised for the

first time at oral argument. United States v. Ulloa , 94 F.3d

949, 952 (5th Cir. 1996). The Government raised this position

neither at sentencing nor in its brief. The Government, however,

attempted at oral argument to characterize this contention as a

mere “expansion” of a position advanced in its brief. This

effort, however, is somewhat disingenuous. Nowhere in its brief

does the Government advance the argument that § 2S1.1 expressly

covers attempts and conspiracies. The closest the Government

comes to advancing this position is a statement that the district

court was permitted, but was not required, to apply § 2X1.1.

18 r ecord also indicates, and the Government conceded at oral

argument, that the Government largely argued its case to the jury

as an attempt case. Had the jury clearly convicted Ogle only of

the completed offense of money laundering, then guideline section

2S1.1 would have properly applied. Given the manner in which the

Government presented its case, and in the absence of any finding

from either the jury or from the district judge at sentencing that

Ogle’s conviction was based on a completed offense of money

laundering, we decline to now hold that section 2S1.1 was properly

applied.

The Government’s second argument, that section 2S1.1 expressly

covers attempts and conspiracies, is not only tard y, 9 but is also

wholly without merit. The Government’s position at oral argument

that section 2S1.1 expressly covers attempts and conspiracies was

based on reference to subsections of section 2S1.1 not in existence

at the time Ogle was sen tenced. Specifically, the Government’s

entire argument before the panel on this point was based on an

amended version of section 2S1.1 that did not become effective19

until November of 2002, nine months after Ogle’s sentencing. The

version of section 2S1.1 in effect at the time of Ogle’s sentencing

contains no reference whatsoever to eithe r attempts or

conspiracies. Accordingly, the district court should have referred

to section 2X1.1 in computing Ogle’s sentence. See United States

v. Villafranca , 260 F.3d 374, 381 (5th Cir. 2001).

Finally, the Government argues that any error in not applying

guideline section 2X1.1 was harmless as Ogle had completed all acts

he believed necessary to consummate the money laundering conspiracy

at the time of his arrest. Guideline section 2X1.1(b)(1) does

provide that a three-level reduction is not available where, “but

for apprehension and inte rruption by some . . . event beyond the

def endant’s control,” the defendant would have completed the

substantive offense. U.S.S.G. § 2X1.1(b)(1). The Government is,

therefore, correct that “there is no difference between the

Guidelines calculation for conspiracy [to launder money] and [money

laundering] when the evidence accepted by the sentenc ing court

shows that the conspiracy’s objectives were a ctually [or

su bstantially] completed.” V illafranca at 381. This contention

was not made below, and neither the Presentence Report nor the

district court concluded that the money laundering scheme was (or

was not) substantially completed at the time of Ogle’s arrest, nor

did either party present any evidence at sent encing to establish

that the offense was, in fact, substantially complete. Under these20

circumsta nces, we cannot on this appeal accept the Government’s

position that any error in refusing to apply section 2X1.1 was

harmless.

Accordingly, Ogle’s case must be remanded to the district

court to address, consistently with this opinion, the applicability

and effect of section 2X1.1.

Conclusion

For th e reasons assigned, the judgment of conviction is

AFFIRMED, the sentence is VACATED, and the case is REMANDED for

resentencing.