United States v. Pennington, No. 22-5181 (6th Cir. 2023)
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While facing charges for conspiracy to engage in human trafficking, 18 U.S.C. 1594(c), Pennington improperly communicated with witnesses in the case and was charged with witness tampering, 18 U.S.C. 1512(b)(1). The 1594(c) conspiracy charge was dismissed when Pennington pleaded guilty to the witness-tampering charge. The district court applied the U.S. Sentencing Guideline that corresponds with his witness-tampering conviction, which prompted cross-references to other guidelines, including U.S.S.G. 2G1.1, which applies to certain human-trafficking offenses and supplies two possible base-offense levels. Subsection (a)(1) provides a base-offense level of “34, if the offense of conviction is 18 U.S.C. 1591(b)(1)”; subsection (a)(2) provides a base-offense level of “14, otherwise.” Although Pennington had not been convicted under 1591(b)(1), the district court used subsection (a)(1)’s base-offense level of 34 as its starting point and imposed a 29-month sentence.
The Sixth Circuit vacated his sentence. Pennington is currently serving his term of supervised release. The district court plainly erred by misinterpreting and miscalculating the Guidelines. Pennington has not been convicted of violating 18 U.S.C. 1591(b)(1) and no guideline permits us to treat him as if he had been; U.S.S.G. 2G1.1(a)(2) provides his base-offense level, 14.
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