Three circuits have approved sentencing calculations
under this guideline:
In United States v. Smith, 231 F.3d 800, 818-21 (11th Cir.
2000), the Eleventh Circuit discussed the application of Section
2H2.1(a)(2) to a voter fraud scheme involving a deputy voter
registrar and a political activist. The defendants were charged and
convicted of multiple-voting (i.e., marking ballots in the names of
voters without the voters’ knowledge) in violation of 52 U.S.C.
§ 10307(e), and forging voters’ names on applications for absentee
ballots and on ballots in violation of 52 U.S.C. § 10307(c). Id. at
805-06. The Eleventh Circuit approved the following guideline
calculations made by the district court: (1) a base offense level of
twelve for both defendants; (2) a two-level enhancement for the
deputy registrar for abuse of a position of public trust under
U.S.S.G. § 3B1.3; (3) a four-level enhancement for both
defendants based on the court’s finding that each was an
“organizer or leader of criminal activity that involved five or more
participants” under U.S.S.G. § 3B1.1(a); and (4) a two-level
enhancement for the political activist for obstructing justice
based on evidence that the defendant influenced a witness to give
a false affidavit concerning material facts. Id. at 819-21.
United States v. Cole, 41 F.3d 303 (7th Cir. 1994), also
involved a deputy voter registrar who was convicted of
multiple-voting in violation of 52 U.S.C. § 10307(e). Proof at trial
established that the defendant applied for and marked absentee
ballots for several voters without their knowledge and consent,
and that he threatened one of these voters to dissuade him from
cooperating in the ensuing criminal investigation. Id. at 308, 311.
The district judge assigned a base offense level of twelve to the
offense under Section 2H2.1(a)(2), and applied enhancements for
the leadership role in a conspiracy involving five or more
participants under Section 3B1.1(a) (four levels), abuse of a
position of public trust under Section 3B1.3 (two levels), and
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