United States v. Jones ( 1993 )

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1189
UNITED STATES OF AMERICA,
Appellee,
v.
ERIC JONES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
Before
Breyer, Chief Judge,
Selya and Boudin, Circuit Judges.
Stanley W. Norkunas on brief for appellant.
Peter E. Papps, United States Attorney, on motion for
summary disposition, for appellee.
July 7, 1993
SELYA, Circuit Judge. Having pleaded guilty to one
SELYA, Circuit Judge.
count of extortion in violation of 18 U.S.C. 1951, defendant-
appellant Eric Jones now appeals from the imposition of sentence.
We affirm.
I
We succinctly summarize the relevant facts. In May
1991, appellant sought a $5,000 loan from a business
acquaintance, John Halle. Halle asked Richard Cyr to make the
loan. When Cyr agreed, the parties consummated the transaction.
By its terms, the loan was to be repaid in full, with interest of
$2,500, within seven days. Although appellant provided security
in the form of a United States treasury bond having a face value
of $10,000, he failed to repay the loan. When Halle and Cyr
contacted a brokerage firm to arrange for a sale of the bond,
they discovered that it had previously been stolen.
The Federal Bureau of Investigation (FBI) mounted an
inquiry into the theft. Halle and Cyr cooperated. In the course
of its investigation, the FBI, with Halle's consent, tape-
recorded certain telephone conversations between Halle and
appellant. During these calls, which occurred in December 1991,
appellant attempted to retrieve the bond. As part of this
effort, he implied that bad things would happen to Halle and/or
Cyr if they did not return the bond. At one point, appellant
stated to Halle that the bond had to be returned by 5:00 p.m.
that afternoon or else "someone" would be on Cyr's doorstep at
some point during the next few days. Appellant told Halle that
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he had better leave town for this period of time. He also
suggested that Halle warn Cyr.
II
The sentencing guideline that applies to appellant's
offense is U.S.S.G. 2B3.2 (Nov. 1991). Under this guideline,
the base offense level is 18. See U.S.S.G. 2B3.2(a). At
sentencing, the district court made offsetting adjustments. It
granted appellant a two-level credit for acceptance of
responsibility, U.S.S.G. 3E1.1, but simultaneously ordered a
two-level increase under U.S.S.G. 2B3.2(b)(1) because the
offense conduct involved "an express or implied threat of death,
bodily injury, or kidnapping."1 The court calculated a
sentencing range of 27-33 months (offense level 18; criminal
history category I) and imposed a 30-month incarcerative
sentence. This appeal ensued.
III
On appeal, Jones challenges only the two-level increase
awarded pursuant to section 2B3.2(b)(1). His principal claim is
that the district court erred in applying a specific offense
characteristic (threat of bodily harm) to effect an upward
adjustment in circumstances where the Sentencing Commission had
already factored this same conduct into the base offense level.
1Section 2B3.2(b)(1) is relatively new. See U.S.S.G. App.
C, amend. 366 at 186 (Nov. 1991). Prior to this amendment, the
extortion guideline did not provide an enhancement for threats of
bodily harm and the like. Presumably because of its recent
origin, there is no appreciable caselaw under section
2B3.2(b)(1).
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To support this contention, appellant points to the definition of
extortion contained in 18 U.S.C. 1951(b)(2) "the obtaining of
property from another, with his consent, induced by wrongful use
of actual or threatened force, violence [or] fear . . . ." He
asseverates that, under this definition, a "threat" of physical
harm, which results in "fear," is an element of the crime; and
that, because the caption of U.S.S.G. 2B3.2 also refers to
"extortion" by "threat" of injury, the base offense level must,
by analogy, incorporate the element of threatened bodily injury.
We disagree.
Although minations may often accompany an act of
extortion, a threat of bodily harm is neither an inherent
characteristic nor a necessary concomitant of the crime. Rather,
18 U.S.C. 1951(b)(2) leaves the dimensions of a fear-producing
threat relatively open-ended. That is to say, the statute of
conviction criminalizes a wide array of fear-producing threats,
e.g., threats to destroy valuable business records, McLaughlin v.
Anderson, 962 F.2d 187 (2d Cir. 1992), or to yank lucrative
county contracts, United States v. Stodola, 953 F.2d 266 (7th
Cir.), cert. denied, 113 S. Ct. 104 (1992), in addition to
threats of physical harm.
Moreover, unlike appellant, we do not think it seems at
all unusual that the Sentencing Commission, charged with a
different function than the Congress, would choose to distinguish
among various types of extortion for sentencing purposes and,
accordingly, seek to punish extortionists who employ "express or
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implied threat[s] of death, bodily injury, or kidnapping," see
U.S.S.G. 2B3.2(b)(1), with greater severity than other, less
callous, practitioners of the same crime. There is not the
slightest sign that the Commission had specifically incorporated
a threat of bodily harm to the victim's person into the base
offense level generally applicable to the offense of conviction.
To the exact contrary, the application notes make manifest that
the Commission designed the general guideline provision to
encompass all acts of extortion, not just those in which the
victim's life and limb are placed at risk:
This guideline applies if there was any
threat, express or implied, that reasonably
could be interpreted as one to injure a
person or physically damage property, or any
comparably serious threat, such as to drive
an enterprise out of business.
U.S.S.G. 2B3.2, comment. (n.2); see, e.g., United States v.
Penn, 966 F.2d 55, 57 (2d Cir. 1992) (per curiam) (upholding
application of 2B3.2 in case where defendant, among other
things, "sought to generate fear through . . . threat of economic
injury").
Having swept broadly in constructing the general
guideline, the Commission subsequently designed the enhancement
provision specifically to target those who made a bad situation
worse by using "an express or implied threat of death, bodily
injury, or kidnapping" as a tool of the extortion trade.
U.S.S.G. 2B3.2(b)(1). The very fact that the enhancer was
added later, and, thus, superimposed upon the general guideline,
furnishes potent evidence that the Commission did not intend to
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implement the analogy which appellant struggles to draw.
Appellant's reliance on United States v. Plaza-Garcia,
914 F.2d 345 (1st Cir. 1990), is plainly misplaced. In Plaza-
Garcia, the defendant pled guilty to one count of sexually
exploiting a minor in violation of 18 U.S.C. 2251(a). The
applicable sentencing guideline, U.S.S.G. 2G2.1(a), provided
for a base offense level of 25. The presentence report
recommended, and the sentencing judge imposed, a two-level
increase because the victim's youth made him "unusually
vulnerable" within the meaning of U.S.S.G. 3A1.1. But, the
commentary to U.S.S.G. 3A1.1 stated specifically that the two-
level adjustment for vulnerability due to age does not apply "if
the offense guideline specifically incorporates this factor."
U.S.S.G. 3A1.1, comment. (n.2). Hence, we reversed, reasoning
that, because the guideline for sexual exploitation of a minor
"specifically incorporates the factor of age," an increase of two
levels would constitute impermissible double counting. Plaza-
Garcia, 914 F.2d at 347. Here, in contrast, the general
guideline for extortion, U.S.S.G. 2B3.2(a), does not specifically
incorporate the relevant factor (threatened bodily harm) into the
base offense level.
We will not paint the lily. Mindful, as we are, that
courts should, for the most part, apply the guidelines as written
and give effect to the interpretive commentary and application
notes, see, e.g., Stinson v. United States, 113 S. Ct. 1913, 1915
(1993); United States v. Weston, 960 F.2d 212, 219 (1st Cir.
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1992), we conclude, without serious question, that U.S.S.G.
2B3.2(a) does not specifically incorporate a threat of bodily
harm into the base offense level for extortion and, therefore,
the district court did not engage in double counting when it
ordered the two-level increase.2
IV
Appellant has a second arrow in his quiver. He
maintains that his conduct did not fall within the compendium of
aggravating factors represented by the specific offense
characteristics listed in U.S.S.G. 2B3.2(b)(1). This argument
will not wash. The district court made its finding that Jones
threatened to inflict bodily harm on Halle and Cyr largely on the
basis of words spoken by Jones himself and preserved for
posterity on magnetic tape. To the extent, if at all, that the
threats were inexplicit and we do not suggest that they were
the sentencing court was nonetheless entitled to draw reasonable
inferences and resolve any possible ambiguity against the
extortionist. See U.S.S.G. 2B3.2, comment. (n.2) ("Even if [a]
threat does not in itself imply violence, the possibility of
violence or serious adverse consequences may be inferred from the
2In light of this ruling, we need not address whether double
counting, had it occurred, would have affected the lawfulness of
the sentence. See generally United States v. Newman, 982 F.2d
665, 672-73 (1st Cir. 1992) (discussing problem and collecting
cases); compare, e.g., United States v. Williams, 954 F.2d 204,
206 (4th Cir. 1992) (approving double counting on the basis that
the sentencing guidelines must be "applied as written") with,
e.g., United States v. Hudson, 972 F.2d 504, 507 (2d Cir. 1992)
(refusing to accept blanket proposition that "double counting is
always permissible, except when explicitly forbidden by the
Guidelines").
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circumstances of the threat or the reputation of the person
making it."); see also United States v. Williams, 952 F.2d 1504,
1514 (6th Cir. 1991) (concluding that "implicit threats employed
by the defendant" can suffice to bring his case within the ambit
of the guideline).
For all intents and purposes, that ends the matter.
When a district court's decision to adjust the base offense level
is factbound, we review it only for clear error. See United
States v. Savoie, 985 F.2d 612, 615 (1st Cir. 1993); United
States v. Iguaran-Palmar, 926 F.2d 7, 9 (1st Cir. 1991); United
States v. Diaz-Villafane, 874 F.2d 43, 48 (1st Cir.), cert.
denied, 493 U.S. 862 (1989); United States v. Wright, 873 F.2d
437, 444 (1st Cir. 1989). Here, appellant admits that he
threatened Halle and Cyr with possible harm if they did not
return the bond. Given this undisputed fact, we can hardly say
that the district court committed clear error in inferring that
the threats involved bodily harm and, consequently, in invoking
U.S.S.G. 2B3.2(b)(1). See generally United States v. Ruiz, 905
F.2d 499, 508 (1st Cir. 1990) (holding that "where there is more
than one plausible view of the circumstances, the sentencing
court's choice among supportable alternatives cannot be clearly
erroneous"); United States v. Tardiff, 969 F.2d 1283, 1287 (1st
Cir. 1992) (discussing broad discretion granted district judges
"to determine what data is, or is not, sufficiently dependable to
be used in imposing sentence").
V
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We need go no further. Because this appeal presents no
substantial question, we grant the government's motion for
summary disposition and, pursuant to Local Rule 27.1, summarily
affirm the judgment below.
Affirmed.
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