UNITED STATES OF AMERICA v. DAVID PENNINGTON - Articles

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UNITED STATES OF AMERICA v. DAVID PENNINGTON

Posted by: Karen Belcher on Aug 21, 2023

Court: 6th Circuit Court (Published Opinions)

Attorneys 1: ARGUED: Stephen Ross Johnson, RITCHIE, DAVIES, JOHNSON & STOVALL, P.C., Knoxville, Tennessee, for Appellant.

Attorneys 2: ARGUED: John Patrick Grant, UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee.

Attorneys 3: ON BRIEF: Stephen Ross Johnson, Catalina L. C. Goodwin, RITCHIE, DAVIES, JOHNSON & STOVALL, P.C., Knoxville, Tennessee, for Appellant.

Attorneys 4: ON BRIEF: John Patrick Grant, Charles P. Wisdom, Jr., UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee.

Judge(s): MOORE, CLAY, and NALBANDIAN, Circuit Judges

Court Appealed: United States District Court for the Eastern District of Kentucky at London

KAREN NELSON MOORE, Circuit Judge. While facing charges for violating 18 U.S.C. § 1594(c), Defendant David Pennington improperly communicated with witnesses in the case against him. Pennington’s § 1594(c) charge alleged that he participated in a conspiracy to engage in human trafficking in violation of 18 U.S.C. § 1591(a)(1), 1591(b)(1). The government then charged Pennington with witness tampering, in violation of 18 U.S.C. § 1512(b)(1), and dismissed the § 1594(c) conspiracy charge when Pennington pleaded guilty to the witness-tampering charge. When the district court sentenced Pennington, it applied the U.S. Sentencing Guideline that corresponds with his witness-tampering conviction, which prompted a series of cross-references to other guidelines. The final guideline in that chain, U.S.S.G. § 2G1.1, applies to certain human-trafficking offenses and supplies two possible base-offense levels. U.S. Sent’g Guidelines Manual § 2G1.1(a) (U.S. Sent’g Comm’n 2021). 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.” U.S.S.G. § 2G1.1(a)(1)–(2). Despite the fact that Pennington had not been convicted of violating 18 U.S.C. § 1591(b)(1), and no other guideline permitted a court to treat Pennington as if he had been, the district court used subsection (a)(1)’s base-offense level of thirty-four as its starting point. This was an error. Accordingly, we VACATE Pennington’s sentence and REMAND to the district court for resentencing under the properly calculated Guidelines range.

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