Guideline Sentencing: An Outline of Appellate Case Law on ...

Section I: General Application Principles
tives embraced by the defendant’s agreement).” A court should make specific findings
as to both the scope <strong>of</strong> the agreement and the foreseeability <strong>of</strong> others’ conduct. See,
e.g., U.S. v. Studley, 47 F.3d 569, 574–76 (2d Cir. 1995) (remanded: court must
“make a particularized finding <strong>of</strong> the scope <strong>of</strong> the criminal activity agreed upon by
the defendant. . . . [T]he fact that the defendant is aware <strong>of</strong> the scope <strong>of</strong> the overall
operation is not enough to hold him accountable for the activities <strong>of</strong> the whole
operation.”) [7#8]; U.S. v. Saro, 24 F.3d 283, 288 (D.C. Cir. 1994) (“The extent <strong>of</strong> a
defendant’s vicarious liability under conspiracy law is always determined by the
scope <strong>of</strong> his agreement with his co-conspirators. Mere foreseeability is not enough.”);
U.S. v. Jenkins, 4 F.3d 1338, 1346–47 (6th Cir. 1993) (remanding attribution <strong>of</strong>
drug amounts based only on foreseeability—district court must also determine “the
scope <strong>of</strong> the criminal activity [defendant] agreed to jointly undertake”) [6#2]; U.S.
v. Evbuomwan, 992 F.2d 70, 73–74 (5th Cir. 1993) (“mere knowledge that criminal
activity is taking place is not enough”—“the government must establish that the
defendant agreed to jointly undertake criminal activities with the third person, and
that the particular crime was within the scope <strong>of</strong> that agreement”) [5#15]; U.S. v.
Gilliam, 987 F.2d 1009, 1012–13 (4th Cir. 1993) (“in order to attribute to a defendant
for sentencing purposes the acts <strong>of</strong> others in jointly-undertaken criminal activity,
those acts must have been within the scope <strong>of</strong> the defendant’s agreement and
must have been reasonably foreseeable to the defendant”); U.S. v. Olderbak, 961
F.2d 756, 764 (8th Cir. 1992) (“Under subsection (a) <strong>of</strong> Section 1B1.3 <strong>of</strong> the <strong>Sentencing</strong>
<strong>Guideline</strong>s, each conspirator is responsible for all criminal acts committed
in furtherance <strong>of</strong> the conspiracy. . . . ‘[S]uch conduct is not included in establishing
the defendant’s <strong>of</strong>fense level,’ however, if it ‘was neither within the scope <strong>of</strong> the
defendant’s agreement nor was reasonably foreseeable in connection with the criminal
activity the defendant agreed to jointly undertake.’”).
Whether a defendant can be held accountable for coconspirators’ activities that
occur after he has been arrested was addressed by the Tenth Circuit in a counterfeiting
case. Defendant was a minor participant in the scheme, he was arrested before
any phony money was actually printed, and after his arrest the government ran
a sting operation on the remaining participants. Nonetheless, he was held responsible
for the entire $30 million that was printed. The appellate court remanded because,
while defendant may have reasonably foreseen that up to $30 million might
have been printed, there was no evidence that he had agreed to that amount and he
had no part whatsoever in determining that amount or producing it. “Courts must
examine a conspirator’s position within a conspiracy and whether that position
gave him firsthand knowledge <strong>of</strong> the quantity <strong>of</strong> counterfeit money involved to
determine whether the conduct <strong>of</strong> other conspirators is reasonably foreseeable to
him.” Furthermore, once the government sting operation was set up, whatever agreement
defendant had with the other conspirators was abandoned for one that he
never agreed to or had a role in. Thus, although “a conspirator’s arrest or incarceration
by itself is insufficient to constitute his withdrawal from the conspiracy,” in
this case defendant’s “participation in the conspiracy terminated with his arrest
and . . . [t]he acts <strong>of</strong> Mr. Melton’s fellow conspirators therefore cannot be attrib-
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