UNITED STATES of America, Plaintiff-Appellee, v. Eugene Davis WASHINGTON, Defendant-Appellant

Eugene Davis Washington was convicted of bribing one of the jurors in his earlier trial on drug charges. Washington challenges his sentence on the ground that the district court erred in applying U.S.S.G. § 2J1.2(c)(l)’s cross-reference to U.S.S.G. § 2X3.1 (“Accessory After the Fact”). We agree with Washington and remand for re-sentencing.

I.

In April 1988, Eugene Davis Washington was indicted for possession with intent to distribute and conspiracy to possess with intent to distribute ten kilograms of cocaine. The first trial ended in a mistrial when the jury deadlocked 11 to 1 in favor of conviction. A second trial in 1989 also ended in a mistrial when the jury deadlocked 9 to 3 in favor of eonviction. Washington subsequently entered into an agreement with the government, pleading guilty to one count of possession with intent to distribute 4.9 kilograms of cocaine and five counts of bank fraud. He was sentenced to five years imprisonment.

In November 1992, while serving his five-year sentence, Washington was indicted for: (1) conspiracy to obstruct justice, in violation of 18 U.S.C. § 371 ; (2) obstruction of justice, in violation of 18 U.S.C. § 1503 ; and (3) bribery of a…