In Federal Sentencing, Sometimes a Dismissed Charge Is Still a Conviction

It's a familiar issue for federal criminal practitioners that relevant conduct under the sentencing guidelines can include conduct beyond the offense of conviction, including uncharged conduct and even acquitted conduct. But the decision in United States v. Nedelcu highlights a quirk that goes one surprising step further--under the federal sentencing guidelines, even enhancements that depend on a "conviction" do not require a conviction.

A federal grand jury indicted Liviu-Sorin Nedelcu on one count of conspiracy to commit RICO under 18 U.S.C. § 1962(d), one count of conspiracy to commit wire fraud under 18 U.S.C. § 1349, and one count of conspiracy to commit money laundering under 18 U.S.C. § 1956(h). He entered into a plea agreement that called for him to plead guilty to the RICO conspiracy charge, and the government agreed to move to dismiss the other charges. As part of the factual basis for his appeal, he admitted to facts that established the elements of all three charges.

The presentence report's guidelines calculation included two two-level enhancements that applied only "[i]f the defendant was convicted under 18 U.S.C. § 1956." See U.S. Sentencing Guidelines Manual § 2S1.1(b). Nedelcu objected--after all, he pleaded guilty only to RICO conspiracy, and the government agreed to dismiss the other charges, including the charge under section 1956. He was convicted only under 18 U.S.C.§ 1962(d), not 18 U.S.C. § 1956. Surely this was a winning objection.

Not so fast. Under Guidelines § 1B1.2(c), "a plea agreement . . . containing a stipulation that specifically establishes the commission of additional offense(s) shall be treated as if the defendant had been convicted of additional count(s) charging those offenses." Because the factual basis of Nedelcu's plea agreement satisfied the elements of money laundering under 18 U.S.C. § 195, he was "convicted" of money laundering for purposes of the sentencing guidelines. Thus the two two-level enhancements applied, increasing Nedelcu's guidelines range from 51-63 months to 78-97 months in prison. The district court sentenced him to 82 months, and the Sixth Circuit affirmed.

Through his plea agreement, Nedelcu avoided a conviction for money laundering. But he still ended up with a "conviction" for money laundering when it mattered most--at sentencing.