United States v. Westmoreland ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4636
DOUGLAS EDWARD WESTMORELAND,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-01-441)
Argued: June 4, 2003
Decided: August 6, 2003
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Affirmed in part, reversed in part, and remanded by unpublished per
curiam opinion.
COUNSEL
ARGUED: Urs Roland Gsteiger, HORTON & GSTEIGER, P.L.L.C.,
Winston-Salem, North Carolina, for Appellant. Sandra Jane Hairston,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee. ON BRIEF: Anna Mills Wagoner, United States Attorney,
Greensboro, North Carolina, for Appellee.
2 UNITED STATES v. WESTMORELAND
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Douglas Westmoreland, formerly a lieutenant in the Sheriff’s
Department for Davidson County, North Carolina, pleaded guilty to
extortion, in violation of 18 U.S.C. § 1951, and to conspiracy to dis-
tribute cocaine and marijuana, in violation of 21 U.S.C. § 846. The
district court sentenced Westmoreland to two terms of 135 months’
imprisonment, to run concurrently. Challenging his sentences on
appeal, Westmoreland contends (1) that the district court erred in
enhancing his sentence for obstruction of justice under U.S.S.G.
§ 3C1.1, and (2) that the district court erred in sentencing him for
extortion under U.S.S.G. § 2B3.2 rather than the less severe U.S.S.G.
§ 2B3.3. For the reasons that follow, we affirm the district court’s
enhancement for obstruction of justice and reverse the sentence based
on application of U.S.S.G. § 2B3.2, remanding for resentencing under
U.S.S.G. § 2C1.1 instead.
Westmoreland was involved in a ring of law enforcement officers
in Davidson County, North Carolina, who distributed steroids, mari-
juana, and cocaine. In October 2001, when Westmoreland and other
officers executed a valid search warrant at the home of Michael
Wayne Martin, Westmoreland seized $2,500 from pants found in
Martin’s bedroom but did not record this money on the inventory
sheet from the search. Approximately one month after the search,
Westmoreland and another officer met with Martin and told him that
if Martin did not complain about the money that Westmoreland took,
they would not file charges against him. Martin honored the deal and
no charges were ever filed.
As a result of a joint investigation conducted by the Federal Bureau
of Investigation and the North Carolina State Bureau of Investigation,
Westmoreland and others were identified as drug distributors in
Davidson County, and Westmoreland was charged, along with others,
UNITED STATES v. WESTMORELAND 3
in three counts of a seven-count indictment — for conspiracy to dis-
tribute illegal drugs, for a civil rights violation, and for extortion.
Five days after the warrant was issued, Westmoreland was arrested.
But on December 11, 2001, the day before his arrest, Westmoreland
gave a friend a box of money containing $22,500 for safe-keeping.
The friend turned this box over to police upon learning of Westmore-
land’s arrest. Westmoreland did not, however, disclose the $22,500
when filling out a financial affidavit to obtain court-appointed coun-
sel. He also did not disclose this money when he appeared before a
magistrate judge and sought court-appointed counsel on the basis of
his inaccurate affidavit.
In March 2002, Westmoreland pleaded guilty, under a plea agree-
ment with the government, to two counts, one for extortion and the
other for conspiracy to distribute cocaine and marijuana. The factual
basis for the extortion count was Westmoreland’s "deal" with Martin
not to file charges in return for Martin’s remaining quiet about the
$2,500 Westmoreland took from him during the search of Martin’s
residence.
Westmoreland’s presentence report applied an adjustment for
obstruction of justice based on Westmoreland’s failure to disclose on
his affidavit and before the magistrate the $22,500 he transferred to
his friend prior to his arrest. It also applied U.S.S.G. § 2B3.2(a) in
recommending the sentence on the extortion count. Westmoreland
objected to both of these recommendations. Overruling Westmore-
land’s objections, the district court adopted the presentence report and
sentenced Westmoreland to two terms of 135 months’ imprisonment
each, to run concurrently. This appeal followed.
On the obstruction of justice issue, Westmoreland contends that the
district court clearly erred in finding that his failure to disclose
$22,500 of his net worth was material. We reject his argument. The
obstruction of justice enhancement was applied pursuant to U.S.S.G.
§ 3C1.1 (2001). Application Note 4 to that guideline provides "a non-
exhaustive list of examples of the types of conduct to which this
adjustment applies," including "providing materially false information
to a judge or magistrate." Id. § 3C1.1 cmt. n.4(f). For purposes of this
obstruction enhancement, "material" information is "information that,
4 UNITED STATES v. WESTMORELAND
if believed, would tend to influence or affect the issue under determi-
nation." Id. § 3C1.1 cmt. n.6. The issue under determination here was
whether Westmoreland had enough money to retain an attorney. We
conclude that the district court did not err in finding that Westmore-
land’s failure to list $22,500 in cash "would tend to influence or
affect" whether Westmoreland was entitled to court-appointed coun-
sel, particularly when this amount of money is viewed in relationship
to $46,200, which Westmoreland listed as his estimated net worth.
On the second issue, Westmoreland contends that the district court
erred in sentencing him for extortion under U.S.S.G. § 2B3.2, entitled
"Extortion by Force or Threat of Injury or Serious Damage." He
argues that the court should have applied § 2B3.3, entitled "Blackmail
and Similar Forms of Extortion," which would have resulted in a
lesser base offense level for the extortion charge. We agree with
Westmoreland that he should not have been sentenced under § 2B3.2,
but we conclude that § 2C1.1, rather than § 2B3.3, is the more appli-
cable guideline.
Appendix A to the Sentencing Guidelines, which provides a cross-
reference correlating statutory provisions with sentencing guidelines,
lists four potentially applicable guidelines for a violation of 18 U.S.C.
§ 1951: §§ 2B3.1, 2B3.2, 2B3.3, and 2C1.1. The Sentencing Guide-
lines apply these different sections depending on the nature of the
extortion. Section 2B3.2, which the district court applied, applies to
extortion which involves force or threats of injury or serious damage.
See U.S.S.G. §§ 2B3.2 cmt. n.2; 2B3.3(c)(2); 2C1.1(c)(3). Although
the threat to press criminal charges is neither a threat of injury or seri-
ous damage, the government relies on application note 2 for § 2B3.2,
which provides that "[e]ven if the threat does not in itself imply vio-
lence, the possibility of violence or serious adverse consequences may
be inferred from the circumstances of the threat or the reputation of
the person making it." The wording of this application note is broader
than the guideline itself, which has the potential to create some
ambiguity in determining whether the threat was of a nature that
would make this guideline applicable. However, any ambiguity
regarding the applicability of this guideline is resolved in the circum-
stances of this case by the cross-references in §§ 2B3.3(c)(2) and
2C1.1(c)(3), which state that § 2B3.2 is to be applied instead of either
one of those other two guidelines when the offense involves "extor-
UNITED STATES v. WESTMORELAND 5
tion by force or threat of injury or serious damage," U.S.S.G.
§ 2B3.3(c)(2), or "a threat of physical injury or property destruction,"
id. § 2C1.1(c)(3).
In this case, Westmoreland’s threat to press criminal charges
against Martin did not involve force and was neither a threat of physi-
cal injury nor a threat of any destruction of property. Accordingly,
§ 2B3.2 was not the most appropriate guideline to apply.
Westmoreland contends that the most appropriate guideline is
U.S.S.G. § 2B3.3, Blackmail and Similar Forms of Extortion. But his
conduct was not blackmail. As used in U.S.S.G. § 2B3.3, "blackmail"
is "a threat to disclose a violation of United States law unless some
money or some other item of value is given." U.S.S.G. § 2B3.3 cmt.
n.1. Westmoreland was not demanding money. Rather, he had seized
it in the course of an otherwise valid search, and sought to retain the
money as a "bribe" for not prosecuting a crime that may have been
committed.
We believe that the most appropriate guideline for the circum-
stances of this case is § 2C1.1, entitled "Offering, Giving, Soliciting,
or Receiving a Bribe; Extortion Under Color of Official Right." The
defining feature of Westmoreland’s extortionate conduct was his
abuse of his position as a law enforcement officer to acquire Martin’s
money illegally and then to conceal his illegal conduct. Westmoreland
used his position as a law enforcement officer both to seize money
from a potential criminal defendant in the course of executing a
search warrant and also to make a credible threat of pressing criminal
charges if the potential criminal defendant did not respect his admoni-
tion to keep silent about the money. In essence, Westmoreland kept
the $2,500 as hush money, as if he had appropriated to himself a
"bribe" for not pressing criminal charges. Extortion under color of
official right is best covered by U.S.S.G. § 2C1.1. See United States
v. Harmon, 194 F.3d 890, 899-900 (8th Cir. 1999) (holding that
U.S.S.G. § 2C1.1 was properly applied to defendants who "extorted
money from individuals by soliciting monetary payments in exchange
for not prosecuting them for crimes for which they otherwise would
have been prosecuted").
Accordingly, we affirm the district court’s imposition of an
enhancement for obstruction of justice, and we vacate the sentence
6 UNITED STATES v. WESTMORELAND
imposed by the district court for the extortion count and remand for
resentencing based on application of U.S.S.G. § 2C1.1.
AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED