United States of America v. Antonio N. Tabron , A / K / Afat Cat

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 1, 2005 Decided February 10, 2006
No. 03-3156
UNITED STATES OF AMERICA ,
APPELLEE
v.
ANTONIO N. TABRON , A / K / A FAT CAT ,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 01cr00396-08)
Jonathan S. Zucker, appointed by the court, argued the
cause and filed the brief for appellant.
John P. Mannarino, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Kenneth L.
Wainstein, U.S. Attorney, John R. Fisher, Assistant U.S.
Attorney at the time the brief was filed, and Roy W. McLeese III
and Stephen J. Pfleger, Assistant U.S. Attorneys.
Before: RANDOLPH , TATEL , and GRIFFITH , Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL .

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TATEL , Circuit Judge: Although appellant pled guilty to
conspiracy to distribute marijuana, cocaine, and crack, he
objected to a two-level sentencing enhancement based on the
weapons possession of alleged co-conspirators. The district
court nonetheless imposed the two-level “gun bump” because it
found that appellant must have known that other individuals
with whom he had been indicted regularly used guns. In doing
so, however, the district court made no explicit finding as to the
scope of appellant’s conspiratorial agreement. Because our case
law requires such findings before defendants are held
accountable for the conduct of alleged co-conspirators, we
vacate the gun bump and remand for reconsideration.
I.
In November 2001, a grand jury indicted sixteen
individuals, including appellant Antonio Tabron—also known
as Fat Cat—charging them with various drug-related crimes. A
little more than a year later, Tabron pled guilty to conspiracy to
sell illegal drugs and, in his proffer, accepted responsibility for
the conspiracy’s distribution of 1.5 kilograms of crack.
One individual charged in the indictment, Abdur Mahdi,
declined to plead guilty and was eventually convicted of, among
other things, first-degree murder, conspiracy to distribute drugs,
and various racketeering offenses. During Mahdi’s lengthy trial,
other charged individuals testified that Mahdi led a major drug
gang that regularly used guns. Several implicated Tabron as a
member of the Mahdi gang, and one, Joseph Hooker, testified
that Tabron had supplied an AK-47 to a gang member.
After Mahdi’s trial and in preparation for Tabron’s
sentencing hearing, a parole officer prepared a presentence
report concluding that, under the sentencing guidelines, Tabron
should be incarcerated for between 262 and 327 months. In
making this calculation, the parole officer added two levels to

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Tabron’s base offense level because “a firearm[] was possessed”
in the course of the conspiracy. U.S. Sentencing Guidelines
Manual § 2D1.1(b)(1) (2000). Without this “gun bump,”
Tabron would have received between 210 and 262 months of
prison time. As part of Tabron’s plea agreement, however, the
government asked the court to impose a sentence between 84
and 90 months, well below the guidelines’ minimum.
Tabron’s attorney objected to the presentence report,
explaining that it “describe[s] generally the violent conduct of
the co-defendants and involve[s] conduct in which Mr. Tabron
played no role, was not charged and which cannot be attributed
to him at sentencing.” Presentence Investigation Report 21
(addendum). Although recognizing that the gun bump would
“have no effect on” Tabron’s length of imprisonment, defense
counsel pointed out that Tabron’s “security classification and
designation by the Bureau of Prisons [would] likely [be]
adversely affected” if the district court attributed the weapons
possession to him. Id. at 22.
In response, the district court asked whether Tabron was
attempting to disclaim responsibility for the Mahdi gang’s
rampant weapons possession. Tabron’s counsel replied that
while Tabron had participated in a conspiracy, he “contest[ed]
whether or not the use of guns and violence was within the
scope of his conspiratorial agreement and base[d] that on his
lack of involvement in any of that.” Sentencing Hr’g Tr. 14,
Dec. 8, 2003. Tabron, his counsel insisted, was merely a fringe
operator who, though aware of the Mahdi gang, had never joined
it and had only conspired on the side to buy and sell drugs with
Hooker, a member of the gang.
The government made two points in support of imposing
the gun bump. First, it claimed that “when you got a large drug
conspiracy . . . the Court . . . can make those individualized

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findings for this defendant about the reasonable foreseeability of
weapons.” Id. at 10. Second, it pointed to Hooker’s testimony
that Tabron gave an AK-47 to a member of Mahdi’s gang. The
government concluded, “either under reasonable foreseeability
or the testimony that puts a gun in his hands, we think the Court
can impose the two points.” Id.
Though recognizing that it could have avoided the issue
entirely, see Fed. R. Crim. P. 32(i)(3)(B) (permitting a court to
“determine that a ruling is unnecessary either because the matter
will not affect sentencing, or because the court will not consider
the matter in sentencing”), the district court rejected Tabron’s
argument. Even assuming that Tabron never possessed the AK-
47, the court reasoned, he should have foreseen that his co-
conspirators would have guns: “[I]t is hard to conceive of
anyone not understanding what was going on out there as people
were shooting at each other.” Hr’g Tr. 17. The court therefore
adopted the presentence report’s findings in full and sentenced
Tabron to 90 months in prison.
Because the gun bump renders Tabron ineligible for early
release under Bureau of Prisons regulations, see 28 C.F.R.
§ 550.58(a)(1)(vi)(B), he now appeals the district court’s
adoption of the presentence report’s findings with respect to the
weapons enhancement.
II.
At least until recently, “where . . . the relevant conduct issue
involves not only a factual question, but the district court’s
application of the guidelines to the facts, the proper standard [of
review] is due deference—one between clear error and de novo
review.” United States v. Mellen, 393 F.3d 175, 183 (D.C. Cir.
2004) (internal quotation marks omitted). Our cases, however,
drew this standard from a provision of the sentencing guidelines
that the Supreme Court excised from the Sentencing Act in

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United States v. Booker, 125 S. Ct. 738, 764-65 (2005) (excising
18 U.S.C. § 3742(e)). Tabron urges us to heed Booker’s
instruction to fill the gap left by the excision by applying a
“reasonableness” standard. Id. at 765-68. For its part, the
government contends that where, as here, the challenged district
court decision has no effect on the length of a defendant’s
sentence, Booker leaves the pre-existing standard undisturbed.
We need not settle the matter here because Tabron’s lone
argument is that, in ascribing the weapons possession to him as
relevant conduct, the district court erred as a matter of law.
Whether we give due deference to the district court’s decision
(the statutory standard) or review it for reasonableness (the
Booker standard), we may unquestionably set it aside if it rests
on legal error. See Mellen, 393 F.3d at 186 (reversing on due
deference review for legal error); see also United States v. Doe,
398 F.3d 1254, 1257 n.5 (10th Cir. 2005) (“Because we
conclude that the district court erred as a matter of law . . . we
need not address any further impact of Booker on appellate
review.”).
Turning to the merits of Tabron’s appeal, we begin with
“the well-settled principle of conspiracy law that someone who
jointly undertakes a criminal activity with others is accountable
for their reasonably foreseeable conduct in furtherance of the
joint undertaking.” United States v. Saro, 24 F.3d 283, 288
(D.C. Cir. 1994). In attributing co-conspirators’ acts to a
criminal defendant, however, district courts must take great care:
as Judge Friendly observed, “[a]lthough it is usual and often
necessary in conspiracy cases for the agreement to be proved by
inference from acts, the gist of the offense remains the
agreement, and it is therefore essential to determine what kind
of agreement or understanding existed as to each defendant.”
United States v. Borelli, 336 F.2d 376, 384 (2d Cir. 1964). To
that end, we have established a “strict procedural mandate” that

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requires district courts to make explicit findings as to the scope
of a defendant’s conspiratorial agreement before holding him
responsible for a co-conspirator’s reasonably foreseeable acts.
United States v. Childress, 58 F.3d 693, 722 (D.C. Cir. 1995)
(per curiam). Absolute conformity with this mandate is critical,
else we risk holding defendants accountable for crimes
committed in furtherance of conspiracies they never joined.
Tabron argues that “[t]he District Court’s determination was
unreasonable because it assumed that Mr. Tabron’s agreement
was coextensive with the conspiracy as a whole.” Appellant’s
Br. 8. For support, Tabron relies on United States v. Childress,
in which the district court had attributed the weapons possession
of alleged co-conspirators to several defendants based solely on
a finding that the co-conspirators’ gun possession was
reasonably foreseeable. Childress, 58 F.3d at 724-26. Because
the district court had never made “individualized findings about
whether the scope of each appellant’s agreement encompassed
the use of guns,” however, we vacated the sentences. Id. at 726.
According to Tabron, precisely the same thing happened here:
instead of finding that Tabron participated in the broader
conspiracy with Mahdi, the district court simply determined that
the Mahdi gang’s use of guns was reasonably foreseeable.
The government seeks to distinguish Childress on the
ground that “the district court made specific findings as to the
scope of [Tabron’s] conspiratorial agreement.” Appellee’s Br.
14. Tellingly, however, the government points to nothing in the
sentencing hearing to support this statement. Nor could it. Our
own careful review of the transcript reveals that, as in Childress,
the district court made no finding whatsoever with respect to the
scope of Tabron’s conspiratorial agreement. The court never
even mentioned the phrase.

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Instead, the district court concentrated on whether Tabron
should have foreseen that members of the Mahdi gang would
use guns in the course of their criminal enterprise. Consider two
characteristic examples. In the first, the district court reasoned:
I have certainly ample evidence to believe he was fully
aware of this beef going on with [a rival] and what was
happening with his co-conspirators and their use of
weapons.
. . . There is plenty before me to say that he . . . may
not have wanted to use guns himself, but to say under
relevant conduct that it was reasonably foreseeable with
respect to the conspiracy he joined, these guys did
nothing without guns.
It was a constant activity. . . . [I]t would sort of
stretch credulity to say he was in this conspiracy and he
really . . . couldn’t reasonably foresee the use of the guns
in the conspiracy that he was a part of is a little bit
difficult to accept.
Hr’g Tr. 13-14. Likewise, explaining its adoption of the
allegedly objectionable portions of the presentence report, the
court stated:
[Tabron] was . . . frequently involved in many drug
sales, and he was the person who basically because he
was shot [at] triggered an open warfare, and to say that
it wasn’t reasonably foreseeable, he’s part of a group
where the use of weapons was common, if not on a daily
basis people were carrying weapons, it was close to
daily.

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The numbers of weapons that were introduced here,
it would stretch credulity to think that Mr. Tabron could
be part of this conspiracy and not understand that it was
reasonably foreseeable to protect the drugs, to protect
the profit, and to protect the turf that guns would be
used. Therefore, I think the only fair inference from the
incredible amount of evidence this Court has sat through
is that whether or not he ever picked up a gun himself,
he was in a conspiracy knowing full well either through
absolute willful blindness which is also not—doesn’t
excuse him, or actual knowledge.
Either way, the Court would find that he is
accountable for the use of—possession of weapons. It’s
not use but possession of the—it is hard to conceive of
anyone not understanding what was going on out there
as people were shooting at each other. So I’m not going
to accept the dispute with the two point enhancement.
Id. at 16-17. In both excerpts—and throughout the rest of the
hearing—the district court addressed the foreseeability question
in some detail, but never determined the precise contours of the
conspiracy Tabron joined. Without more, the district court’s
findings on foreseeability cannot pass for a finding as to the
scope of Tabron’s conspiratorial agreement: “The extent of a
defendant’s vicarious liability under conspiracy law is always
determined by the scope of his agreement with his
co-conspirators. Mere foreseeability is not enough . . . .” Saro,
24 F.3d at 288 (emphasis added).
The government attempts to stretch the district court’s use
of the phrases “with respect to the conspiracy he joined,” “he’s
part of a group,” “part of this conspiracy,” and “in a conspiracy”
into judicial findings. The most that can be said about such
stray statements, however, is that they reflect the court’s

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assumption that Tabron joined the core of the Mahdi drug
conspiracy. Such an assumption is not enough, however: “Even
where the evidence likely supports the conclusion that there was
a single conspiratorial agreement joined by all the defendants,
the district court at sentencing must spell out in some detail the
evidentiary basis for this conclusion.” Childress, 58 F.3d at
722; see also Saro, 24 F.3d at 288-89 (rejecting the adoption of
a presentence report that assumed that a defendant was
“automatically responsible” for other conspirators’ crimes
(emphasis omitted)).
The district court, moreover, may not avoid its
responsibility to “spell out” explicit findings by reasoning, as the
court did here, that Tabron can be held responsible for the
Mahdi gang’s crimes because he pled guilty to a conspiracy and
“[t]here is only one conspiracy in this case.” Hr’g Tr. 14. As
we held in United States v. Mellen, a decision issued after the
district court sentenced Tabron:
Where the record is unclear as to whether the crimes at
issue constitute a single or multiple conspiracies, the
sentencing court cannot assume the former and thereby
obviate its duty to determine the scope of each
defendant’s agreement. What is more, even when there
is but a single conspiracy, and there [is] sufficient
evidence against each of the [defendants] to conclude
that she or he agreed to further the purposes of this
single conspiracy, we still require the sentencing court to
determine the scope of each defendant’s agreement.
Mellen, 393 F.3d at 184 (alterations in original) (internal
citations and quotation marks omitted); see also Childress, 58
F.3d at 722 (same). The reason for this solicitude is obvious: a
single loosely affiliated criminal enterprise may consist of a
dense network of agreements. Tabron may therefore

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appropriately object that the conspiracy he pled guilty to joining
may not have been coterminous with the conspiracy his co-
conspirators joined. See Childress, 58 F.3d at 710 (“Even if, for
instance, there exists a core, single chain conspiracy, certain
players may have performed activities wholly unrelated to the
aims of the conspiracy. In addition, some courts have been
reluctant to conclude that the chain conspiracy construct can
automatically bind all participants in a drug distribution
enterprise into a single agreement . . . when there are no
indications of interdependence between the various
participants.” (internal citations and quotation marks omitted)).
If, as Tabron claims, he functioned only as a fringe operator
with a side agreement to sell drugs with co-conspirators
(perhaps including Hooker) who never possessed weapons in
furtherance of that side conspiracy, then the Mahdi gang’s
rampant gun possession would have no bearing on Tabron’s
sentence.
We are unpersuaded by the government’s effort to
distinguish Mellen. That case involved the conspiracy
conviction of the husband of a government employee who stole
upwards of $360,000 worth of electronic equipment from the
Department of Education. Mellen, 393 F.3d at 178-80. At
sentencing, the district court found the husband responsible for
the theft of all equipment that passed through the couple’s home
on the theory that he “knew of his wife’s involvement” in the
scheme, at least to that degree. Id. at 180. We rejected this
approach, reasoning that “[t]he fact that he knew what she was
doing does not mean he agreed to it,” id. at 185, and remanded
to the sentencing court to determine the scope of the husband’s
conspiratorial agreement, id. at 186.
The government contends that Mellen differs from this case
because

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[h]ere, by contrast, [Tabron] agreed to participate in the
ongoing distribution of drugs with his co-conspirators,
and the evidence showed that firearms and violence
played an essential role in furtherance of this effort.
[Tabron] agreed to join this conspiracy with full
knowledge of this, and so was properly held accountable
for the firearms.
Appellee’s Br. 21. But just like Tabron, the defendant in Mellen
was guilty of conspiring to commit a crime (stealing from the
government). Just like Tabron, the defendant in Mellen knew
that the unlawful activity (his wife’s theft of electronic
equipment) “played an essential role in furtherance of this
effort.” And just like Tabron, the defendant in Mellen “agreed
to join [that] conspiracy with full knowledge” of the unlawful
activity. Because we vacated in Mellen, so too must we vacate
here; foreseeability is just not enough.
To be sure, the government recounts a litany of suggestive
evidence from Abdur Mahdi’s trial, including testimony that
Tabron operated as a member of the drug gang and provided an
AK-47 to one of Mahdi’s relatives, see id. at 13-14, some of
which might well justify imposing the gun bump. But to satisfy
this circuit’s “strict procedural mandate,” the district court must
link that evidence to a specific finding as to the contours of
Tabron’s conspiratorial agreement before it can attribute any co-
conspirators’ acts to him. See Childress, 58 F.3d at 722.
Because the district court failed to do so, we vacate the gun
bump, and because both parties agree that a ruling in Tabron’s
favor will not affect the term of his sentence, we remand solely
on the question of the appropriateness of the two-level
enhancement.
So ordered.

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