98-5019/5341/5343 United States of America v. Andy L. Swiney , J R. (97-6493)

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0052P (6th Cir.)
File Name: 00a0052p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
Nos. 97-6493;
98-5019/5341/5343
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee/
Cross-Appellant
(98-5019/5343),
v.
ANDY L. S WINEY , J R.
(97-6493); GEORGIA BELLE
M ULLINS, a/k/a Georgia B.
Isaacs (98-5341),
Defendants-Appellants/
Cross-Appellees.
Nos. 5011/5012/5015/
5016/5017/5018/5435
UNITED S TATES OF AMERICA ,
Plaintiff-Appellant,
v.
;>

Nos. 97-6493;
98-5011/5012/
5015/5016/5017/
5018/5019/5341/
5343/5435

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2 United States v.
Swiney, et al.
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*The Honorable Herman J. Weber, United States District Judge for
the Southern District of Ohio, sitting by designation.
R ANDY GLENN ISAACS;
R ONNIE W AYNE ISAACS;
J UAN DURAN -GUZMAN ;
VANESSA DALE BOOKER;
W ENDY M ESSER; M ICHAEL
DAVID GUY ; NELSON
M ILLETT ,
Defendants-Appellees.

1
Appeal from the United States District Court
for the Eastern District of Tennessee at Greeneville.
No. 97-00007—Thomas G. Hull, District Judge.
Argued and Submitted: August 12, 1999
Decided and Filed: February 14, 2000
Before: NORRIS and SUHRHEINRICH, Circuit Judges;
WEBER*, District Judge.
_________________
COUNSEL
ARGUED: Dan R. Smith, ASSISTANT UNITED STATES
ATTORNEY, Johnson City, Tennessee, David L. Leonard,
LEONARD & KERSHAW, Greeneville, Tennessee, for
Appellants. William L. Ricker, RICKER LAW OFFICE,
Greeneville, Tennessee, David B. Hill, Newport, Tennessee,
for Appellees. ON BRIEF: Dan R. Smith, ASSISTANT
UNITED STATES ATTORNEY, Johnson City, Tennessee,

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United States v.
Swiney, et al.
3
1By order dated June 12, 1998, the Court consolidated for purposes
of briefing and submission the appeals filed by plaintiff, the United States
of America, Case Nos. 98-5011, 98-5012, 98-5015, 98-5016, 98-5017,
98-5018 and 98-5435. This Court also consolidated the appeals and
cross-appeals filed by Defendants Andy Swiney and Georgia Belle
Mullins and Plaintiff United States of America, Case Nos. 97-6493, 98-
5019, 98-5341 and 98-5343. Argument was set for the same day with the
same panel.
Clifton L. Corker, Johnson City, Tennessee, David L.
Leonard, LEONARD & KERSHAW, Greeneville, Tennessee,
for Appellants. William L. Ricker, RICKER LAW OFFICE,
Greeneville, Tennessee, Laura D. Perry, PERRY & PERRY,
Morristown, Tennessee, C. Todd Chapman, KING & KING,
Greeneville, Tennessee, R.B. Baird III, LAW OFFICES OF
R.B. BAIRD III, Rogersville, Tennessee, Douglas L. Payne,
Greeneville, Tennessee, David B. Hill, Newport, Tennessee,
Dan R. Smith, ASSISTANT UNITED STATES
ATTORNEY, Johnson City, Tennessee, for Appellees.
Michael David Guy, Morgantown, West Virginia, pro se.
_________________
OPINION
_________________
SUHRHEINRICH, Circuit Judge. Defendants Georgia
Belle Mullins and Andy Lee Swiney, two members of a
heroin conspiracy, appeal on various grounds their jury
convictions and sentences. The Government cross appeals
Mullins’ and Swiney’s sentences. The Government also
appeals the sentences of seven other Defendants who pleaded
guilty to conspiracy to distribute heroin.1 The Government
argues that all of the Defendants should have received a
statutory mandatory minimum of twenty years pursuant to 21
U.S.C. § 841(b)(1)(C) and U.S.S.G. § 2D1.1(a) because a
death resulted from the use of heroin that was distributed by
members of the conspiracy. The district court found no proof
linking these Defendants to the death, using a “critical

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4 United States v.
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2See Pinkerton v. United States, 328 U.S. 640 (1945).
proximate cause” inquiry. The Government contends that all
of the Defendants should be held accountable for the death
under the Pinkerton theory of vicarious liability.2
We reject the Government’s theory of accountability
because the scope of conduct for which a defendant can be
held accountable under the Sentencing Guidelines is narrower
than the conduct encompassed by conspiracy law. However,
we agree that the district court misapplied the Sentencing
Guidelines. We therefore REVERSE and REMAND for
further proceedings.
I. Background
On January 22, 1997, a grand jury returned a twenty-four
count indictment charging twelve individuals with conspiracy
to distribute heroin in Mountain City, Tennessee and related
drug charges. Included were Defendants Michael Isaacs; his
ex-wife Georgia Belle Mullins; their sons, Ronnie, Randy,
Johnny, and Stevie Isaacs; Andy Lee Swiney; David Guy;
Wendy Messer; Vanessa Booker; Nelson Millet; and Juan
Duran-Guzman.
Nine defendants pleaded guilty to the conspiracy charge, of
whom seven now appeal. A jury convicted Michael Isaacs,
Swiney, and Mullins of conspiracy and related charges.
A. The Trial
The Government proved at trial that Michael Isaacs, the
leader of the conspiracy, Mullins, Ronnie Isaacs, Randy
Isaacs, and Swiney arranged for members of the conspiracy to
travel from Mountain City to Philadelphia, Pennsylvania to
purchase heroin from Defendants Nelson Millett and Juan
Duran-Guzman, for resale in Mountain City. Michael Isaacs
would then give the heroin to his distributors. Generally,
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enhancement of 21 U.S.C. § 841(b)(1)(C) and U.S.S.G.
§ 2D1.1(a), the district court must find that he or she is part of
the distribution chain that lead to Phillips’ death. Cf.
Robinson, 167 F.3d at 831 (observing that § 1B1.3(a)(1)(B)
was satisfied where the defendant delivered drugs to a co-
conspirator, who then in furtherance of the conspiracy
delivered the drugs to a third party who died from use of the
drugs; evidence showed that the defendant intended that the
drugs be distributed, which “was the very purpose of the
conspiracy” (dicta)).
Defendants’ remaining arguments are without merit.
III. Conclusion
For the foregoing reasons, the district court’s ruling
regarding 21 U.S.C. § 841(b)(1)(C) and U.S.S.G. § 2D1.1(a)
is REVERSED; Defendants’ sentences are VACATED and
the cases are REMANDED for resentencing in accordance
with this opinion.

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Furthermore, we perceive no difficulty in reconciling the
mandatory minimum language of § 841(b)(1)(C) and
§ 1B1.3(a)(1)(B). In fact, a number of circuits have applied
the foreseeability analysis of the relevant conduct provision
to the calculation of drug quantities for purposes of
mandatory minimum sentences under 21 U.S.C. §§ 841(b)(1)
and 846. See, e.g., United States v. Ruiz, 43 F.3d 985, 992 &
n.16 (5th Cir. 1995); United States v. Castaneda, 9 F.3d 761,
769-70 (9th Cir. 1993); Irvin, 2 F.3d at 75-78; United States
v. Young, 997 F.2d 1204, 1210 (7th Cir. 1993); United States
v. Martinez, 987 F.2d 920, 923-26 (2d Cir. 1993); United
States v. Jones, 965 F.2d 1507 (8th Cir. 1992). We adopt the
reasoning of these courts. See Irvin, 2 F.3d at 78 (noting that
“the guidelines were created pursuant to the Sentencing
Reform Act of 1984, 28 U.S.C.A. §§ 991-998 (West Supp
1993) and that the individual guidelines, including the
reasonable foreseeability test as set forth in the relevant
conduct section, have been accepted by Congress. Thus, two
distinct congressionally approved sentencing schemes, the
mandatory minimum approach and the sentencing guidelines,
are presently in place, two schemes that should be reconciled
to the extent legitimate and practical.”); Martinez, 987 F.2d
at 925-26 (surveying legislative history 21 U.S.C. § 846,
amended in 1988; holding that the Guidelines, in the tradition
of conspiracy law since Pinkerton, require reasonable
foreseeability for conspiracy liability; a result which is not
inconsistent with § 846, which only requires that a conspirator
be sentenced to the same penalty applicable to the underlying
conduct). We therefore hold that Pinkerton principles, as
articulated in the relevant conduct guideline, U.S.S.G.
§ 1B1.3(a)(1)(B), determine whether a defendant convicted
under 21 U.S.C. § 846 is subject to the penalty set forth in 21
U.S.C. § 841(b)(1)(C).
On remand, the district court is directed to determine
whether Johnny Isaacs’ distribution of heroin was “reasonably
foreseeable” as defined in U.S.S.G. § 1B1.3(a)(1)(B) and
commentary to any of these Defendants. In other words,
before any of the Defendants can be subject to the sentence
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United States v.
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heroin customers would contact Mullins, who would have her
sons Johnny Isaacs and Stevie Isaacs deliver the heroin.
Several of the pleading Defendants testified at the trial.
Randy Isaacs, Guy, Booker, and Messer all attested to making
trips to Philadelphia for Michael Isaacs to buy heroin for
resale in Mountain City.
The Government also established that, as charged in Count
9 of the indictment, a death resulted from the conspiracy’s
sale of heroin. Chad Rankin testified that on September 14,
1996, he and his friend Kristopher Phillips traveled to
Mountain City to buy heroin. Rankin indicated that he and
Phillips bought five bags for $150. Both Phillips and Rankin
used the heroin purchased, and Phillips died that night of a
heroin overdose. Rankin testified that Johnny Isaacs sold
them the heroin.
Michael Glenn Isaacs was convicted at trial of distributing
heroin, aided and abetted by Johnny Isaacs. It is undisputed
that Johnny’s sale of heroin resulted in Phillips’s death.
B. The Plea Agreements
Ronnie Isaacs, Randy Isaacs, Guy, Messer, Booker, Duran-
Guzman, and Millett each pleaded guilty to conspiracy to
possess with intent to distribute heroin, in violation of 21
U.S.C. § 846. In return, the Government agreed to move at
sentencing for the dismissal of the additional counts in the
indictment. Each of the pleading Codefendants stipulated to
an "agreed factual basis" outlining his or her role in the
conspiracy as part of his or her plea agreement.
Each plea agreement acknowledged the statutory sentencing
range from a five-year minimum to a forty-year maximum
and recited a factual basis for the plea detailing the particular
misconduct of each Defendant. The stipulated facts indicate
that each Defendant knew that he or she was part of an
agreement to distribute heroin. None of the plea agreements
or agreed factual bases for these seven Defendants referred to

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the actual delivery of heroin to Kristopher Phillips or his
death. None of the plea agreements referred to a mandatory
minimum twenty years for a resulting death.
C. Sentencing
Neither the presentence reports of the pleading Defendants
nor Swiney’s and Mullin’s presentence reports enhanced the
sentences to reflect the death. The Government objected to
each of the reports, contending that a death resulted from the
use of heroin distributed by members of the conspiracy. In
addendums to the presentence reports, the probation officer
acknowledged that Phillips died of a heroin overdose during
the course of the conspiracy, but determined that
enhancements under U.S.S.G. § 2D1.1(a)(2) were not
appropriate.
The district court held Johnny Isaacs responsible for
Phillips’ death under § 841(b)(1)(C) and § 2D1.1. The
district court refused to impose the heightened base offense
level for any of the other Defendants, however, finding no
proof linking the heroin which caused Kristopher Phillips’
death to any of these nine defendants.
The Government challenges this ruling as applied to all
nine Defendants before this Court. Although Swiney and
Mullins raise other issues in their respective appeals, we find
them without merit and in no need of further discussion.
II. Analysis
A. Standard of Review
Several of the Defendants challenge the Government’s right
to appeal, claiming that the sentences imposed were within
the district court’s discretion and within the Guidelines.
However, the Government has a limited right to appeal an
otherwise final sentence if the sentence was imposed as a
result of an incorrect application of the Sentencing
Guidelines. See 18 U.S.C. § 3742(b).
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United States v.
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8Subsection (A) includes as relevant conduct
(A) all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully
caused by the defendant . . . that occurred during the
commission of the offense.
U.S.S.G. § 1B1.3(a)(1)(A).
applying the enhanced sentence, the district court must
find that death resulting from the use of a drug
distributed by a defendant was a reasonably foreseeable
event. . . . The statute puts drug dealers and users on clear
notice that their sentence will be enhanced if people die
from using the drugs they distribute. . . . Where serious
bodily injury or death results from the distribution of
certain drugs, Congress has elected to enhance a
defendant’s sentence regardless of whether the defendant
knew or should have known that death will result. We
will not second-guess this unequivocal choice.
Id. at 145 (footnote omitted). The court also rejected the
defendants’ analogy to drug conspiracy cases, in which the
defendants are sentenced according to the quantity of drugs
reasonably foreseeable to each defendant as required under
U.S.S.G. § 1B1.3(a)(1)(B). See id. at 145. See also
Robinson, 167 F.3d at 830-31 (rejecting the defendant’s
argument the district court must find that the defendant’s
conduct was the proximate cause of a death before imposing
the twenty-year mandatory minimum found in 21 U.S.C.
§ 841(B)(1)(C); relying on Patterson’s “plain language”
analysis).
We do not find Patterson persuasive. As the Patterson
court itself pointed out, the defendants’ conduct –
distributing, and aiding and abetting in the distribution of,
morphine and meperidine – was encompassed within the
subsection (A) of § 1B1.3(a)(1), which does not require a
finding of reasonable foreseeability. See id. at 145-46.8
Subsection (B) of § 1B1.3(a)(1) was not even at issue. Thus,
Patterson’s remarks are dicta.

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feet thanks to phrases such as ‘shall be unlawful,’ . . . which draw a
provision to its close.”’ Id. (citations omitted).
Section 841, in contrast with § 2119, draws clear distinctions between
the prohibited conduct, see 21 U.S.C. § 841(a), and the penalty. See
§ 841(b).
6Michael Isaacs died prior to sentencing, so the district court did not
assess whether he would be subject to 21 U.S.C. § 841(b)(1)(C) and
U.S.S.G. § 2D1.1(a).
7The district court derived this test from United States v. Homrich,
59 F.3d 171, 1995 WL 390286 (6th Cir. 1995) (unreported per curiam);
United States v. Nelson, 920 F. Supp. 825 (M.D. Tenn. 1996); and United
States v. Patterson, 38 F.3d 139 (4th Cir. 1994).
proximate cause” of the death. Under this test, the district
court found no proof that any acts or omissions of these
Defendants6 were the proximate cause of Phillips’ death.7
The district court erred in not applying the reasonable
foreseeability analysis of U.S.S.G. § 1B1.3(a)(1)(B). The
Government’s position is somewhat closer to the mark
because it employs Pinkerton. Yet it fails to limit the
Pinkerton theory of liability in the sentencing context, as
required by the Guidelines.
In support of its position the Government cites United
States v. Patterson, 38 F.3d 139 (4th Cir. 1994). There, one
of the defendants pleaded guilty to unlawful distribution of a
controlled substance which resulted in a death, in violation of
21 U.S.C. § 841(a)(1), and the other defendant pleaded guilty
to aiding and abetting in that offense, in violation of 18
U.S.C. § 2 and 21 U.S.C. § 841(a)(1). The defendants argued
that the Government was required to prove that the death was
the intended or foreseeable result of their distribution of
controlled substances under 21 U.S.C. § 841(b)(1)(C). See
id. at 144-45. The Fourth Circuit rejected the argument:
Quite simply, the plain language of § 841(b)(1)(C)
does not require, nor does it indicate, that prior to
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United States v.
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7
We review a sentencing court’s interpretation of the
Sentencing Guidelines and sentencing statutes de novo and its
factual findings for clear error. See United States v.
Robinson, 167 F.3d 824, 830 (3d Cir. 1999 ), cert. denied,
120 S. Ct. 118 (1999); United States v. Flowers, 55 F.3d 218,
220 (6th Cir. 1995) United States v. Irvin, 2 F.3d 72, 76 (4th
Cir. 1993).
B. Mandatory Enhancement
All of the Defendants before this court were convicted of
conspiracy under 21 U.S.C. § 846, which provides: “[a]ny
person who attempts or conspires to commit any offense
defined in this subchapter shall be subject to the same
penalties as those prescribed for the offense, the commission
of which was the object of the attempt or conspiracy.” Here,
the object of the conspiracy was possession with the intent to
distribute heroin. See 21 U.S.C. § 841(a)(1). Thus, under
§ 846, Defendants are subject to the same penalties as a
person who actually violates § 841. See United States v.
O’Brien, 52 F.3d 277, 278 (9th Cir. 1995); Irvin, 2 F.3d at 75;
United States v. Montoya, 891 F.2d 1273, 1293 (7th Cir.
1989).
Section 841(b) prescribes the penalty for violations of
§ 841(a). The district court sentenced Johnny Isaacs under
§ 841(b)(1)(C). It provides that “if death or serious bodily
injury results from the use of such substance” distributed in
violation of § 841(a)(1), such person “shall be sentenced to a
term of not less than twenty years or more than life.” 21
U.S.C.A. § 841(b)(1)(C) (West 1999). Further, U.S.S.G.
§ 2D1.1(a)(2) assigns a base offense level of 38 “if the
defendant is convicted under 21 U.S.C. § 841(b)(1)(A),
(b)(1)(B), or (b)(1)(C) . . .[and] death or seriously bodily
injury resulted from the use of the substance . . . .”
U.S.S.G.§ 2D1.1(a)(2) (1998).
The Government argues that under the Pinkerton doctrine
all of the Defendants are responsible for Phillips’ death. In

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8 United States v.
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Pinkerton v. United States, 328 U.S. 640 (1946), the Supreme
Court held that a co-conspirator may be vicariously liable for
the substantive offense committed by coconspirator if the act
is done “in furtherance of the conspiracy” and is “reasonably
foreseen as a necessary or natural consequence of the
unlawful agreement.” Id. at 647-48; United States v. Myers,
102 F.3d 227, 237 (6th Cir. 1996); see also Paul Marcus,
Criminal Conspiracy Law: Time To Turn Back From An Ever
Expanding Ever More Troubling Area, 1 Wm. & Mary Bill
Rts. J. 1, 7 (1992) (observing that the Pinkerton theory is one
of imputed causation; “it permits the government to hold a
defendant criminally liable for all reasonably foreseeable acts
of co-conspirators regardless of actual knowledge, intent, or
participation”). Thus, if the Government is correct, all of the
Defendants would be liable for Phillips’ death because it is
reasonably foreseeable that someone will die after using
heroin distributed by the conspiracy.
The Government’s argument ignores the Sentencing
Guideline’s treatment of conspiracy. U.S.S.G.
§ 1B1.3(a)(1)(B) (“Relevant Conduct (Factors that Determine
the Guideline Range”)) provides that the base offense level
shall be determined by considering the following:
[I]n the case of a jointly undertaken criminal activity (a
criminal plan, scheme, endeavor, or enterprise
undertaken by the defendant in concert with others,
whether or not charged as a conspiracy), all reasonably
foreseeable acts and omissions of others in furtherance of
the jointly undertaken criminal activity,
that occurred during the commission of the offense of
conviction.
U.S.S.G. § 1B1.3(a)(1)(B). Application Note 2 provides in
relevant part:
In the case of a jointly undertaken criminal activity,
subsection (a)(1)(B) provides that a defendant is
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4See supra, note 3.
5The district court held that 21 U.S.C. § 841(b) is an enhancement
provision rather than a substantive offense. Although Defendants do not
challenge this ruling on appeal, we nonetheless observe that Jones v.
United States, 526 U.S. 227 (1999), does not require a different result.
Jones involved the carjacking statute, 18 U.S.C. § 2119. Section 2119
states that a defendant convicted of carjacking shall be imprisoned not
more than fifteen years and “if death results,” be imprisoned for up to life.
119 S. Ct. 1218 (quoting the statute). In a 5-4 decision, the Supreme
Court held that these factors (seriously bodily injury and death) were
offense elements rather than sentencing factors. See id. at 1228.
Significantly, the majority invoked the doctrine of “constitutional doubt”
whereby a statute susceptible of two constructions should be interpreted
to avoid “grave and doubtful constitutional questions.” Id. at 1222-28
(quotations and citations omitted). The Jones majority emphasized two
points. First, the carjacking statute was unlike “some statutes [that] come
with the benefit of provisions straightforwardly addressing the distinction
between elements and sentencing factors.” Id. at 1219. Second, the
carjacking statute was “unlike most offense-defining provisions in the
federal criminal code, which genuinely stand on their own grammatical
instances, make differing determinations among co-
conspirators. If the Pinkerton rule of conviction liability
were strictly mirrored at sentencing, the result might be
different.
William W. Wilkins & John R. Steer, Relevant Conduct: The
Cornerstone of the Federal Sentencing Guidelines, 41 S.C. L.
Rev. 495, 508-10 (1990).4 Thus, it is clear that the
Sentencing Guidelines have modified the Pinkerton theory of
liability so as to harmonize it with the Guidelines’ goal of
sentencing a defendant according to the “seriousness of the
actual conduct of the defendant and his accomplices.” Id. at
502.
The district court did not apply the Guideline test set out in
U.S.S.G. § 1B1.3(a)(1)(B). Instead, it created its own test and
held that in order for the enhancement to apply, the
Government had to establish by a preponderance of the
evidence5 that the defendant’s conduct was “the critical

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Moreover, in a 1990 article, William W. Wilkins, Chairman
of the United States Sentencing Commission, and John R.
Steer, General Counsel for the Commission, explained:
The remaining portion of the “otherwise accountable”
definition in Application Note 1 refers to conspiratorial-
type activity within the realm of what is commonly
referred to as the “Pinkerton” rule. Two key points
should be noted. First, the guidelines specifically employ
this doctrine to cover any “criminal activity undertaken
in concert with others, whether or not charged as a
conspiracy.”
A second key point regarding construction of the
“otherwise accountable” language in concerted activity
situations is that this rule is a sentencing rule and not
necessarily co-extensive with the Pinkerton rule of co-
conspirator liability. Thus, in determining the outer
limits of the attribution dimension under this aspect of
Relevant Conduct, courts should focus on the language
in Application Note 1 addressing conduct of others that
was “within the scope of the defendant’s agreement”’ or
“in furtherance of the execution of the of the execution of
the jointly-undertaken criminal activity” or “that was
reasonably foreseeable by the defendant . . . in
connection with the criminal activity the defendant
agreed to jointly undertake.”’ As the note further
explains, in a broad conspiracy the relevant conduct
considered in constructing the guideline range may not
be the same for every defendant in the conspiracy,
although each may be equally liable for conviction under
Pinkerton.
This potential differentiation among co-conspirators is
consistent with the multiple purposes of sentencing
articulated in the Sentencing Reform Act. . . .
. . . .
Thus, in applying the Relevant Conduct guideline, the
Commission intended that courts would, in necessary
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accountable for the conduct (acts and omissions) of
others that was both:
(i) in furtherance of the jointly undertaken criminal
activity; and
(ii) reasonably foreseeable in connection with that
criminal activity.
Because a count may be worded broadly and include
the conduct of many participants over a period of time,
the scope of the criminal activity jointly undertaken by
the defendant (the “jointly undertaken criminal activity”)
is not necessarily the same as the scope of the entire
conspiracy, and hence relevant conduct is not
necessarily the same for every participant. In order to
determine the defendant’s accountability for the conduct
of others under subsection (a)(1)(B), the court must first
determine the scope of the criminal activity the
particular defendant agreed to undertake (i.e., the scope
of the specific conduct and objectives embraced by the
defendant’s agreement). The conduct of others that was
both in furtherance of, and reasonably foreseeable in
connection with, the criminal activity jointly undertaken
by the defendant is relevant conduct under this provision.
The conduct of others that was not in furtherance of the
criminal activity jointly undertaken by the defendant, or
was not reasonably foreseeable in connection with that
criminal activity, is not relevant conduct under this
provision.
Id. cmt. n.2. (emphasis added). In short, under the Sentencing
Guidelines, a defendant is accountable for the conduct of
other conspirators only if that conduct was (1) reasonably
foreseeable to him and (2) in furtherance of the jointly
undertaken criminal activity. See United States v. Jenkins, 4
F.3d 1338, 1346 (6th Cir. 1993) (interpreting prior version of
§ 1B1.3 and comment).

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We have observed in an analogous context that “the scope
of conduct for which a defendant can be held accountable
under the sentencing guidelines is significantly narrower than
the conduct embraced by the law of conspiracy.” United
States v. Okayfor, 996 F.2d 116, 120 (6th Cir. 1993) (quoting
United States v. Lanni, 970 F.2d 1092, 1093 (2d Cir. 1992)
(quoting United States v. Perrone, 936 F.2d 1403, 1416 (2d
Cir. 1991)) (holding that for Sentencing Guidelines purposes,
a defendant is chargeable for a co-conspirator’s drug
transactions if they were known to him or reasonably
foreseeable to him under U.S.S.G. § 1B1.3(a)(1), 1B1.3, cmt.
n.2))). In Lanni, which we cited with approval in Okayfor,
the Second Circuit explained:
As we previously have recognized, an important
distinction exists between the criminal law standard for
convicting a defendant of conspiracy and the Guidelines
standard for sentencing a defendant convicted of
conspiracy. Under conspiracy law, a defendant may be
convicted of conspiracy even though he is unaware of all
the conspiracy’s unlawful aims, as long as he has
knowledge of some of those aims. See United States v.
Lanza, 790 F.2d 1015, 1022-23 (2d Cir.), cert. denied,
479 U.S. 861 . . . (1986). The Guidelines’ approach is
narrower than the standard for establishing guilt of the
conspiracy offense itself. A defendant convicted of
conspiracy may be sentenced for relevant conduct
committed by a co-conspirator in furtherance of the
conspiracy only if that conduct was reasonably
foreseeable by the defendant. See Guidelines § 1B1.3,
Application Note 1; United States v. Perrone, 936 F.2d
1403, 1416 (2d Cir. (footnote omitted), clarified on other
grounds, 949 F.2d 36 (2d Cir. 1991).
Lanni, 970 F.2d at 1093. The concurring opinion in Lanni
clarified the point:
[I]n describing the narrower standard of guideline
sentencing for conspiracy, [the majority opinion]
Nos. 97-6493; 98-5011/5012/5015/
5016/5017/5018/5019/5341/5343/5435
United States v.
Swiney, et al.
11
3The court is discussing the pre-November 1, 1992 version of
U.S.S.G. § 1B1.3. Certain material from the commentary was moved to
the Guideline itself and “rephrased for greater clarity” in amendment 439.
See Julie R. O’Sullivan, In Defense of the U.S. Sentencing Guidelines’
Modified Real-Offense System, 91 NW. U. L. REV. 1342, 1433 n. 111
(1997); U.S.S.G. § 1B1.3, comment. (n.2) (1995); United States v.
Jenkins, 4 F.3d 1338, 1346 (6th Cir. 1993).
helpfully and precisely contrasts that standard with the
broader standard applicable only to conviction for the
conspiracy offense itself. When the relevant conduct
guideline speaks of “all acts and omission . . . for which
the defendant would be otherwise accountable . . . that
otherwise were in furtherance of the offense,” Sentencing
Guidelines, § 1B1.3(a)(1), it calls to mind the Pinkerton
standard, which holds a conspirator liable, in some
circumstances, for substantive offenses committed by a
co-conspirator. The Commission has apparently
recognized the force of the Pinkerton analogy since it has
limited sentencing for relevant conduct of “others in
furtherance of jointly-undertaken criminal activity” to
conduct that was reasonably foreseeable “by the
defendant.” Id., comment. (n.1). See United States v.
Joyner, 924 F.2d 454, 458-59 (2d Cir. 1991) (section
1B1.3 commentary reflects Pinkerton standard); see also
United States v. Andrews, 953 F.2d 1312, 1319 (11th Cir.
1992) (section 1B1.3 standards “roughly approximate”
Pinkerton standards), cert. denied, 505 U.S. 1210 . . .
(1992).
The broader aspect of conspiracy law, permitting
conviction of a defendant who knew some but not all the
aims of the conspiracy, see United States v. Lanza, 790
F.2d 1015, 1022-23 (2d Cir.), cert. denied, 479 U.S. 861
. . . (1986), applies only to conviction for the conspiracy
offense itself, and not to vicarious liability for
substantive offenses committed by a co-conspirator.
Id. at 1095 (Newman, J., concurring). 3

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