15‐94(L) United States v. Natal

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

_______________

August Term, 2016

(Argued: November 22, 2016 Decided: February 23, 2017)

Docket Nos. 15‐94, 15‐1012, 15‐1020

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UNITED STATES OF AMERICA,

Appellee,

– v. –

HECTOR NATAL A/K/A BOOM BOOM, HECTOR MORALES

Defendants‐Appellants. _______________

B e f o r e:

KATZMANN, Chief Judge, WINTER, Circuit Judge, and STEIN, District Judge.*

_______________

Judge Sidney H. Stein of the United States District Court for the Southern District of *

New York, sitting by designation.

Defendants Hector Natal and Hector Morales appeal from their judgments of conviction and their sentences, imposed by the United States District Court for the District of Connecticut (Arterton, J.). Following a joint jury trial, Natal was convicted of crimes including arson resulting in death, and Morales was convicted of crimes including accessory after the fact to arson, and destruction and concealment of evidence. The district court sentenced, in principal part, Natal to life imprisonment and Morales to 174 months’ imprisonment, and the defendants appealed. This opinion addresses the following issues. First, we hold that testimony concerning how cell phone towers operate must be presented by an expert witness, but that the admission in the instant case of lay opinion testimony on this subject was harmless. Second, we hold that Morales’s conviction for destruction and concealment of evidence must be vacated in light of the intervening Supreme Court case Yates v. United States,

(2015), and that Morales is entitled to de novo resentencing. Third, we direct the district court, at Morales’s resentencing, to group Morales’s three counts of conviction for accessory after the fact pursuant to U.S.S.G. § 3D1.2. Therefore, we REMAND Morales’s case to the district court with instruction to vacate Morales’s count of conviction for destruction and concealment of evidence and to conduct de novo resentencing of Morales. In all other respects, we AFFIRM the judgment of the district court. _______________

MICHAEL J. GUSTAFSON (Sandra S. Glover, on the brief), Assistant United States Attorneys, for Deirdre M. Daly, United States Attorney, District of Connecticut, New Haven, CT.

JESSE M. SIEGEL, Law Office of Jesse M. Siegel, New York, NY, for Hector Natal.

HARRY SANDICK (George LoBiondo and Patricia S. Kim, on the brief), Patterson Belknap Webb & Tyler LLP, New York, NY, for Hector Morales.

_______________

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PER CURIAM:

In this appeal of judgments of conviction and sentence involving crimes

that include arson resulting in death, accessory after the fact to arson, and

destruction and concealment of evidence, we write to address three issues:

(1) Whether testimony on how cell phone towers operate must be provided by an

expert witness rather than a lay witness;

(2) Whether defendant Morales’s conviction for destruction and concealment of

evidence for re‐painting his van must be vacated in light of the Supreme Court’s

holding in an intervening decision, Yates v. United States,

(2015),

that the statutory provision under which Morales was convicted covers “only

objects one can use to record or preserve information”; and

(3) Whether, in calculating Morales’s Sentencing Guidelines range, Morales’s

convictions for accessory after the fact must be “grouped” pursuant to U.S.S.G.

§ 3D1.2.

The essential factual background of this case is as follows:

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On the early morning of March 9, 2011, three members of the Roberson

family – Jaquetta1 Roberson, Quayshawn Roberson, and Wanda Roberson – died

in an intentionally‐caused fire at 48‐50 Wolcott Street in New Haven,

Connecticut. Hector Natal, a neighbor of the Robersons, was charged with arson

resulting in death, and his father, Hector Morales, was charged with being an

accessory after the fact to arson for conduct that allegedly included driving Natal

away from the scene of the fire after Natal started the blaze. Both Natal and

Morales were charged with conspiring to tamper with, and tampering with,

witnesses during law enforcement’s investigation of the arson, including by

seeking to cause witnesses to testify falsely to the grand jury. Additionally,

Morales was charged with destruction and concealment of evidence for re‐

painting the van that he had allegedly used to drive Natal away from the fire.

Natal was also charged with attempted arson for trying to start a fire at the same

1 This spelling of Jaquetta Roberson’s name appears in the indictment, although her name is spelled slightly differently in the government’s appellate brief.

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New Haven building in approximately October 2010. 2 Finally, both Natal and

Morales were charged with participation in a drug conspiracy.3

Defendants Natal and Morales were tried jointly in the United States

District Court for the District of Connecticut (Arterton, J.), and on April 18, 2013,

a jury found the defendants guilty on all counts. On January 8, 2015, the district

court sentenced Morales to 174 months’ imprisonment and 36 months of

supervised release. On February 25, 2015, the district court sentenced Natal to

life imprisonment on the arson counts, 240 months on each of the other charges

that went to trial, and 40 years on the conviction resulting from Natal’s guilty

plea to the cocaine possession charge, all to run concurrently. Following the

district court’s entry of judgment, both Natal and Morales timely appealed.

On appeal, the defendants raise numerous claims, including allegations

that Natal’s Confrontation Clause rights were violated at trial, that there was a

2 Unless otherwise indicated, all references to “the fire” or “the arson” refer to the fire started in the early morning of March 9, 2011.

3 Natal was initially indicted on June 23, 2011 on drug‐related charges, and on October

4, 2011, he pled guilty to Count Two of that indictment. Count Two charged Natal with

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prejudicial variance between the indictment and the proof at trial, that the

district court erroneously admitted lay opinion testimony concerning the

operation of cell phone towers, that Morales’s conviction for destruction and

concealment of evidence must be vacated in light of an intervening Supreme

Court decision, that Natal’s sentence was imposed in contravention of the Eighth

Amendment, and that the district court’s calculation of Morales’s U.S. Sentencing

Guidelines range was procedurally erroneous. In a case with many issues, the

district court was thorough and meticulous.

We affirm the district court except as to the following claims. First, we

hold that testimony on how cell phone towers operate constitutes expert

testimony and may not be introduced through a lay witness. However, the

admission in the instant case of lay opinion testimony on the operation of cell

phone towers was harmless. Second, we hold that Morales’s conviction for

destruction and concealment of evidence must be vacated in light of the Supreme

Court’s decision in Yates v. United States,

(2015), handed down

possession with the intent to distribute 28 grams or more of cocaine base in violation of

(a)(1) and 841(b)(1)(B).

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shortly after Morales filed the instant appeal. We remand Morales’s case to the

district court to vacate Morales’s conviction for destruction and concealment of

evidence, and, pursuant to United States v. Powers,

(2d Cir. 2016), to

conduct de novo resentencing of Morales. Third, as part of the district court’s

calculation of Morales’s Guidelines range at the resentencing, Morales’s three

counts of conviction for accessory after the fact should be grouped pursuant to

U.S.S.G. § 3D1.2. We reject the defendants’ other claims. Consequently, we

uphold all counts of conviction except Morales’s conviction for destruction and

concealment of evidence, and we remand Morales’s case to the district court to

vacate Morales’s conviction for destruction and concealment of evidence and to

resentence Morales de novo.

I. The admission of lay opinion testimony on how cell phone towers operate

Morales and Natal argue that the district court erred in admitting lay

opinion testimony on the operation of cell phone towers instead of requiring this

testimony to be presented by an expert witness. We review the district court’s

evidentiary rulings for abuse of discretion. See United States v. Rosemond,

(2d Cir. 2016). “A district court has abused its discretion if it based its

ruling on an erroneous view of the law or on a clearly erroneous assessment of

the evidence or rendered a decision that cannot be located within the range of

permissible decisions.” United States v. Rowland,

(2d Cir. 2016)

(quoting United States v. Fazio,

(2d Cir. 2014)). However, “[w]e

will reverse only if an error affects a ‘substantial right,’ meaning that the error

‘had a substantial and injurious effect or influence on the jury’s verdict.’”

(first

quoting Fed. R. Evid. 103(a); then quoting United States v. Garcia,

(2d Cir. 2005) (internal quotation marks omitted)). “[W]here a court, upon

review of the entire record, is sure that the evidentiary error did not influence the

jury, or had but very slight effect, the verdict and the judgment should stand.”

(quoting Garcia,

) (alteration in original).

“Historical cell‐site analysis,” as the Seventh Circuit recently explained,

“uses cell phone records and cell tower locations to determine, within some

range of error, a cell phone’s location at a particular time.” United States v. Hill,

(7th Cir. 2016). A cell phone connects to a cell phone tower in

order to access the cellular network and communicate with other phones.

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“Each cell tower covers a certain geographic area[,]” which “depends upon ‘the

number of antennas operating on the cell site, the height of the antennas,

topography of the surrounding land, and obstructions (both natural and

manmade).’”

(quoting Aaron Blank, The Limitations and Admissibility of Using

Historical Cellular Site Data to Track the Location of a Cellular Phone, 18 RICH. J. L. &

TECH. 3, 5 (2011)). “While the proximity of the user is a significant factor in

determining the cell tower with which the cell phone connects,” other factors

also play a role, including structural features of the tower and the phone, as well

as the geography and topography of the surrounding environment.

at 295‐96;

see also Matthew Tart et al., Historic Cell Site Analysis – Overview of Principles and

Survey Methodologies, 8 DIGITAL INVESTIGATION 185, 186‐87 (2012).

Here, Natal and Morales attempted to show at trial that Michael Shamash,

the landlord of the New Haven building burned in the arson, was a plausible

alternative suspect in the arson. To counter this theory, the government sought to

introduce evidence that Shamash’s cell phone was connecting to cell phone

towers in Queens, New York, on the night of the fire. In particular, the

government called Joseph Trawicki, an employee of the Sprint Nextel wireless

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communications company, to testify regarding Shamash’s cell phone activity.

The district court permitted Trawicki to testify as a Sprint records custodian in

order to explain records showing “what law enforcement relied on in ruling out

Shamash” as a suspect in the arson, and admitted Shamash’s cell phone records

as business records pursuant to Federal Rule of Evidence 803(6). The government

did not seek to show that Trawicki’s testimony satisfied the requirements for

admissible expert testimony under Federal Rule of Evidence 702, and the district

court, over the defendants’ objection, did not require the government to make

this showing.

Trawicki, on the witness stand, explained entries on the Sprint phone

records containing details about the calls in which Shamash’s phone had

participated on the night of the fire (for example, the time and duration of each

call), as well as the location of the cell phone towers to which Shamash’s cell

phone had connected at the beginning and end of each call. When asked about

the factors that would make a phone call “start with one cell tower and end with

another cell [tower],” Trawicki responded:

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Your handset is always looking for the strongest available signal, and your handset makes that determination, not the network, not anything else. And your handset, the instant it sees another strong signal that’s stronger than the one it has, it will jump to that signal. That could be movement, it could be radio frequency interference, it could be just a tower that had a better signal that was previously busy becomes available. Based on this information, it’s impossible – just looking at these individual records, it’s impossible to say if there’s movement there or not. . . . It’s just your line of site [sic] to the tower, any radio frequency interference, like that.

Trawicki also indicated that a cell phone will connect to the tower with the

“strongest available signal,” which may not be the closest tower. Trawicki ended

his testimony by stating that a certain cell phone number, which was elsewhere

identified as belonging to Shamash, connected to a tower in Queens at 1:41 a.m.

on the day of the fire. The arson was alleged to have occurred at approximately

1:15 a.m. in New Haven.4

In addition to admitting Trawicki’s testimony as lay testimony, the district

court permitted the government to offer lay testimony from two law enforcement

4 The defense did not cross‐examine Trawicki because, according to defense counsel, the defendants had not realized before trial that the government was planning to call a witness to discuss cell phone tower location data. The government, defense counsel argued, had violated a pretrial understanding that no evidence on cell phone towers

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officers, who testified that Shamash had been eliminated as a suspect in the arson

investigation partially because Shamash’s cell phone was shown by his cell

phone records to be in Queens at the time of the fire. One of these law

enforcement officers stated, for example, that Shamash’s “cell phone . . . was

down at [Shamash’s] house bouncing off a cell phone tower.”

On summation, the government drew the following conclusions from the

cell phone tower evidence:

Before we move off the arson, I want to talk briefly about the landlord, the notion the landlord did it, Michael Shamash. Well, we know he was in Queens the night of the fire. And I’ve got these phone records here, which we can zoom in on. . . . And then we know from the representative from Sprint how cell phones work – cell towers, and I’ll direct your attention over to these columns. You get the repoll number and the cell tower number, and you go to another document at the back of the exhibit and you are going to see that the towers that Mr. Shamash was hitting off at the time, around 1:52 and 2:04 a.m., they all come back to 64th Street, Flushing, New York. So, I don’t think there is any dispute that Mr. Shamash was not in New Haven standing outside the door saying should I light it, or words to that effect.

would be offered. See infra for the Court’s conclusion that these claims by the defendants do not warrant a finding of reversible error.

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On appeal, the defendants argue that the district court erred in admitting

testimony on cell phone towers, especially the testimony offered by Trawicki,

from a lay witness. Federal Rule of Evidence 701 provides that

[i]f a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Fed. R. Evid. 701. Federal Rule of Evidence 702, in turn, contains standards for

the admission of expert testimony. See Fed. R. Evid. 702. “Lay opinion under

Rule 701 must be limited to opinions that ‘result[] from a process of reasoning

familiar in everyday life.’” United States v. Cuti,

(2d Cir. 2013)

(quoting Fed. R. Evid. 701 advisory committee’s note, 2000 amend.). “[T]he

purpose of Rule 701(c) is ‘to eliminate the risk that the reliability requirements set

forth in Rule 702 will be evaded through the simple expedient of proffering an

expert in lay witness clothing.’” Bank of China, N.Y. Branch v. NBM LLC,

(2d Cir. 2004) (quoting Fed. R. Evid. 701 advisory committee’s note, 2000

amend.).

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The Second Circuit has not yet ruled on whether testimony concerning cell

phone towers requires expertise. We hereby join the Seventh and Tenth Circuits

in holding that testimony on how cell phone towers operate must be offered by

an expert witness. See Hill,

(“[The witness’s] testimony . . .

included statements about how cell phone towers operate. In our view, this fits

easily into the category of expert testimony, such that Rule 702 governs its

admission.”); United States v. Yeley‐Davis,

(10th Cir. 2011) (“The

agent’s testimony concerning how cell phone towers operate constituted expert

testimony because it involved specialized knowledge not readily accessible to

any ordinary person.”); see also United States v. Reynolds, 626 Fed. App’x 610, 614

(6th Cir. 2015). We need not hold that all evidence related to cell phone towers

necessarily requires expertise. But we caution that the line between testimony on

how cell phone towers operate, which must be offered by an expert witness, and

any other testimony on cell phone towers, will frequently be difficult to draw,

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and so both litigants and district courts would be well advised to consider

seriously the potential need for expert testimony.5

In the instant case, Sprint employee Trawicki offered testimony on how

cell phone towers operate when he indicated, for example, that a cell phone will

connect to the tower with the strongest available signal, which may not be the

closest tower; that factors such as radio interference, tower availability, and the

line of sight between a phone and a tower affect the tower to which a cell phone

connects; and that the phone handset determines which signal is strongest. At

least these aspects of Trawicki’s testimony did not “‘result[] from a process of

reasoning familiar in everyday life.’” Cuti,

(quoting Fed. R. Evid.

701 advisory committee’s note, 2000 amend.). They were, instead, “based on

scientific, technical, or other specialized knowledge within the scope of Rule

702.” Fed. R. Evid. 701(c). Therefore, the government in the instant case

introduced testimony that required expertise through a lay witness.

5 In this case, asking the jury to draw the conclusion that Shamash could not have been in New Haven because his cell phone was using a tower in Queens required testimony on the possible ranges of any relevant cell phone towers and how they operate, which required expertise.

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However, the admission here of lay opinion testimony on how cell phone

towers operate was harmless and not reversible error. “The principal factors” in

the harmless error “inquiry are ‘the importance of the witness’s wrongly

admitted testimony’ and ‘the overall strength of the prosecution’s case.’” United

States v. Dukagjini,

(2d Cir. 2002) (quoting Wray v. Johnson,

(2d Cir. 2000)). Here, the government’s case against the defendants’

theory that Shamash had committed the arson was not based solely on evidence

concerning Shamash’s cell phone; an FBI agent testified at trial that Shamash was

ruled out as a suspect partly on the basis of witness accounts that Shamash was

in New York on the night of the fire, and a New Haven police officer testified

that Shamash was ruled out partly because, in law enforcement’s view, Shamash

had no financial motive to set the fire.

More significantly, the prosecution presented a very strong case against

the defendants. Government witnesses testified that Natal admitted to them that

he started the fire, including in a tape‐recorded conversation that was played for

the jury. One of these witnesses testified that Morales told her that he had driven

Natal away from the fire. A neighbor of Natal and Morales testified that she saw

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the defendants driving away from 48‐50 Wolcott Street in Morales’s van on the

night of the fire. The same neighbor also described previous confrontations

between Natal and residents of 48‐50 Wolcott Street. The government also

presented substantial evidence of attempts by Natal and Morales to thwart the

police’s investigation into the crime, including by instructing family members to

testify falsely to the grand jury and by painting Morales’s van a different color

after eyewitness reports surfaced of a blue van leaving the scene of the fire.

Natal and Morales, for their part, offered evidence in opposition to the

government’s case. For example, they highlighted government witnesses’ prior

inconsistent statements, and called their own witnesses, some of whom gave

unfavorable testimony about Shamash. Nevertheless, “upon review of the entire

record,” the Court can be “sure that the evidentiary error did not influence the

jury, or had but very slight effect.” Rowland,

(quoting Garcia,

). Therefore, we find that the admission of lay opinion testimony on

how cell phone towers operate was harmless and not reversible error.

Relatedly, Natal and Morales argue that the government violated Federal

Rule of Criminal Procedure 16 by not disclosing before trial its intent to offer

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expert testimony, and that the district court abused its discretion in not granting

the defendants a continuance that defense counsel sought in order to retain an

expert to assist defense counsel in cross‐examining Trawicki. In light of our

holding that testimony concerning how cell phone towers operate constitutes

expert testimony, we also hold that such testimony is covered by the disclosure

requirements of Federal Rule of Criminal Procedure 16. However, any error

related to Federal Rule of Criminal Procedure 16 or the denial of a continuance

was harmless for the reasons specified above.

II. Morales’s conviction for destruction and concealment of evidence

Morales argues, and the government concedes, that Morales’s conviction

for destruction and concealment of evidence must be vacated in light of the

Supreme Court’s decision in Yates v. United States,

(2015), which

issued after Morales filed his notice of appeal. Morales painted his blue van with

black primer after the fire, and the government alleged that Morales took this

action out of a concern that a blue van had been seen leaving the scene of the fire.

Accordingly, Morales was charged, in Count Eleven of the indictment, with

“knowingly alter[ing] a tangible object, that is, a blue 1994 Dodge Caravan, with

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the intent to impede . . . an investigation” in violation of

. The

jury convicted Morales on this count.

The Supreme Court held in Yates, however, that a “tangible object” within

the meaning of the Sarbanes‐Oxley Act,

, covers “only objects one

can use to record or preserve information, not all objects in the physical world.”

Yates,

. Because Morales’s van was not an “object[] one can use

to record or preserve information,”

Morales’s act of repainting his van is not

covered by

. Indeed, the dissenting opinion in Yates, specifically

referencing the instant case, stated that Morales’s alleged act of “repainting [his]

van to cover up evidence of [a] fatal arson” would, in light of the Yates Court’s

holding, “now fall outside § 1519.” Id. at 1100 (Kagan, J., dissenting). The

plurality opinion in Yates also referred to United States v. Morales and did not

dispute the dissent’s statement that Morales’s conduct would not be covered by

. See

at 1088 n.8.

Therefore, the Court hereby remands Morales’s case to the district court to

vacate Morales’s conviction for destruction and concealment of evidence (Count

Eleven). Further, this Court has recently confirmed that when a count of

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conviction is overturned due to a “conviction error,” the proper remedy is de

novo resentencing, except in circumstances not applicable here. Powers, 842 F.3d

at 179‐81; see also United States v. Rigas,

(2d Cir. 2009).

Consequently, on remand, Morales must be resentenced de novo.

III. The calculation of Morales’s Sentencing Guidelines range

Morales contends that his sentence was procedurally unreasonable

because the district court should have grouped his three counts of conviction for

accessory after the fact in calculating his Guidelines range. To elaborate, Morales

was charged with three counts of being an accessory after the fact to arson. Each

count referred to one of the three arson counts charged against Natal, one for

each of the three victims of the arson. The district court at Morales’s sentencing,

over Morales’s objection, declined to “group” Morales’s three counts of

conviction for accessory after the fact to arson. As a result, the district court

applied the multiple count analysis in U.S.S.G. § 3D1.4 (“Determining the

Combined Offense Level”) without grouping the accessory counts. Morales notes

that if the accessory counts had been grouped, Morales’s Guidelines range would

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have been 121‐151 months’ imprisonment, not 168‐210 months’ imprisonment.

The district court sentenced Morales to 174 months’ imprisonment.

“A district court commits procedural error where it . . . makes a mistake in

its Guidelines calculation. . . .” United States v. Cavera,

(2d Cir.

2008) (en banc). “Procedural reasonableness is reviewed for abuse of discretion,”

United States v. Desnoyers,

(2d Cir. 2013), but “[t]he district

court’s interpretation and application of the Sentencing Guidelines is a question

of law, which we review de novo,” United States v. Kent,

(2d Cir.

2016).

We hold that Morales’s counts of conviction for accessory after the fact to

arson must be grouped pursuant to U.S.S.G. § 3D1.2. This provision, titled

“Groups of Closely Related Counts,” states that “[a]ll counts involving

substantially the same harm shall be grouped together into a single Group.

Counts involve substantially the same harm within the meaning of this rule: (a)

When counts involve the same victim and the same act or transaction. . . .”

U.S.S.G. § 3D1.2. Additionally, the application notes to this provision of the

Guidelines state that “[a]mbiguities should be resolved in accordance with the

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purpose of this section as stated in the lead paragraph, i.e., to identify and group

‘counts involving substantially the same harm.’” U.S.S.G. § 3D1.2 cmt. n.2

(quoting U.S.S.G. § 3D1.2).

Here, Morales was convicted not of the substantive crime of arson, but of

the “distinct” offense of accessory after the fact, which “is differently punished.”

Bollenbach v. United States,

(1946); see also United States v.

Cabrales,

(1998); United States v. James,

(2d Cir. 1993).

In particular, Morales’s “offense is . . . that of interfering with the processes of

justice.” Wayne R. LaFave, 2 Subst. Crim. L. § 13.6 (2d ed.); see also United States v.

Vidal,

(9th Cir. 2007) (“Accessory‐after‐the‐fact liability . . . is

aimed at post‐offense conduct that aids the offender in evading law

enforcement.”), abrogated on other grounds, see Cardozo‐Arias v. Holder, 495 Fed.

App’x 790, 792 n.1 (9th Cir. 2012).

As the Supreme Court of Minnesota stated, in interpreting Minnesota’s

criminal statutes, “accomplices after‐the‐fact come along after the victims have

been harmed and do not further their victimization merely by helping the

principal offenders evade the law.” State v. Skipintheday,

, 427

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(Minn. 2006). Consequently, the Minnesota Supreme Court indicated, the

defendant’s “three counts of being an accomplice after‐the‐fact, all arising from a

single behavioral incident, were not multiple‐victim crimes, and [we]re therefore

not subject to multiple sentences.”

. Similarly, Morales’s counts of

conviction for accessory after the fact “involv[ed] substantially the same harm”

under U.S.S.G. § 3D1.2, namely damage to the “administration of justice.” Id. at

425. The “victim” for the purpose of U.S.S.G. § 3D1.2 is hence “the societal

interest that is harmed,” that is, society’s interest in the administration of justice,

and “the societal interests that are harmed” by the conduct giving rise to

Morales’s three convictions for accessory after the fact “are closely related.”

U.S.S.G. § 3D1.2 cmt. n.2. Therefore, these counts should “be grouped together

into a single Group.” U.S.S.G. § 3D1.2. We accordingly direct the district court, in

calculating Morales’s Guidelines range at his resentencing, to group his three

counts of conviction for accessory after the fact pursuant to U.S.S.G. § 3D1.2.

CONCLUSION

We have considered the other claims raised by defendants Natal and

Morales, and we find them to be without merit. Accordingly, we AFFIRM the

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judgment of the district court except as to Morales’s conviction for destruction

and concealment of evidence. We REMAND Morales’s case to the district court

to vacate his conviction for destruction and concealment of evidence, and to

conduct de novo resentencing of Morales. We also direct the district court, at

Morales’s resentencing, to group Morales’s counts of conviction for accessory

after the fact pursuant to U.S.S.G. § 3D1.2.

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