United States v. Eugene Temkin , 797 F.3d 682 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50103
Plaintiff-Appellee,
D.C. No.
v. 2:10-cr-00813-
SVW-1
EUGENE DARRYL TEMKIN,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 12-50136
Plaintiff-Appellant,
D.C. No.
v. 2:10-cr-00813-
SVW-1
EUGENE DARRYL TEMKIN,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted
December 11, 2014—Pasadena, California
Filed August 13, 2015
2 UNITED STATES V. TEMKIN
Before: Kim McLane Wardlaw and Marsha S. Berzon,
Circuit Judges, and William E. Smith, Chief District
Judge.*
Opinion by Judge Wardlaw
SUMMARY**
Criminal Law
The panel affirmed convictions for solicitation to commit
a crime of violence, attempted extortion in violation of the
Hobbs Act, and use of interstate commerce facilities in the
commission of murder-for-hire; vacated the sentence; and
remanded for resentencing.
The panel held that sufficient evidence supported the
defendant’s convictions and the district court’s rejection of
the entrapment defense.
On the government’s cross-appeal, the panel held that in
applying the Sentencing Guidelines to the defendant’s
conviction under 18 U.S.C. § 1958 for use of interstate
commerce facilities in the commission of murder-for-hire, the
district court erred by using the base offense level of 32 set
forth in U.S.S.G. § 2E1.4(a)(1) rather than the cross-
*
The Honorable William E. Smith, Chief District Judge for the U.S.
District Court for the District of Rhode Island, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. TEMKIN 3
referencing provision in U.S.S.G. § 2E1.4(a)(2), where the
unlawful conduct underlying that conviction was solicitation
to commit murder, which, under U.S.S.G. § 2A1.5, yields an
offense level (33) that is greater than 32. With a 4-level
increase for the “offer or receipt of anything of pecuniary
value for undertaking the murder,” U.S.S.G. §§ 2A1.5(a),
(b)(1), the panel concluded that the defendant’s offense level
was 37, and that the district court therefore erred in using an
offense level of 32 to calculate the defendant’s Guidelines
range. The panel held that this error was not harmless.
COUNSEL
Michael Clough (argued), Oakland, California, for
Defendant-Appellant/Cross-Appellee.
Mark R. Yohalem (argued), Elizabeth R. Yang and E. Martin
Estrada, Assistant United States Attorneys; Robert E.
Dugdale, Chief Assistant United States Attorney; André
Birotte Jr., United States Attorney, Los Angeles, California,
for Plaintiff-Appellee/Cross-Appellant.
4 UNITED STATES V. TEMKIN
OPINION
WARDLAW, Circuit Judge:
Eugene Darryl Temkin challenges the sufficiency of the
evidence underlying his three counts of conviction for
(1) solicitation to commit a crime of violence; (2) attempted
extortion in violation of the Hobbs Act; and (3) use of
interstate commerce facilities in the commission of
murder-for-hire. Temkin also raises the defense of
entrapment. While we conclude that sufficient evidence
supports Temkin’s convictions and that Temkin was not
entrapped, we agree with the Government that the district
court materially erred in calculating the correct base offense
level at sentencing. Accordingly, we affirm Temkin’s
conviction but vacate his sentence and remand for
resentencing.
I. Factual and Procedural Background
This dark tale arises from a failed gambling venture in
Equatorial Guinea, which was formed by two former drug
trafficking associates, defendant Temkin, and his associate of
more than twenty years, Michael Hershman. In 2000,
Temkin mortgaged property to loan Hershman and another
partner $500,000 as his stake in the gambling venture. When
the venture failed in 2003, everyone lost their money, but
Temkin also ultimately lost his mortgaged property. Temkin
began demanding repayment of the loan, and became
dissatisfied when Hershman sent him only about $1,000 a
week. In 2004, Temkin began a campaign of harassment and
threats against Hershman to get his money back. Although
Hershman ultimately returned the money through the
settlement of a lawsuit in 2006, Temkin escalated his
UNITED STATES V. TEMKIN 5
demands for the ever-increasing amounts of money he
believed Hershman still owed him, bombarding Hershman
with harassing and threatening phone calls and emails.
Temkin next began “acting out” his obsession with getting
even more money from Hershman. He broke into and
emptied a Hershman family storage unit containing family
possessions and financial documents, and tracked down
Hershman’s hospitalized daughter by pretending to be her
uncle. Temkin hacked into Hershman’s email account and
computer, tracked his whereabouts in foreign countries, and
personally threatened Hershman, at one point brandishing a
.45-caliber gun at him.
Then Temkin got serious. He attempted to recruit
associates to assist in extorting and murdering Hershman. In
around 2006, Temkin suggested to Larry Morrison, a
computer-savvy drug dealer who had helped hack
Hershman’s computer to track him down in Belgium, that he
poison Hershman. Having researched options to kill
Hershman by poison, Morrison suggested instead that they
use a poison that had an antidote—they could poison
Hershman, extort his money, and then let him live; a
proposition Temkin rejected out of hand. Before they could
proceed on this course, Morrison was arrested for drug
trafficking.
Temkin then turned to John Malpezzi, a former attorney
convicted of drug trafficking, offering him money to kill
Hershman. Malpezzi visited Hershman at his Dominican
Republic gaming operation, and warned him of Temkin’s
extortion/murder plan. Malpezzi and Hershman turned to an
attorney for advice; the attorney advised Malpezzi to begin
recording his conversations with Temkin. Malpezzi took the
recordings to Los Angeles Sheriff’s Department detectives
6 UNITED STATES V. TEMKIN
who asked him to introduce Temkin to “Chet,” an undercover
sheriff’s detective who would pose as a hitman.
On November 21, 2009, Malpezzi and Chet met with
Temkin. Temkin had given “a great deal of thought” to
killing Hershman, and he and Chet continued to meet over the
next few months to work out a plan. Temkin proposed
pushing Hershman off a boat hundreds of miles from shore or
staging a “suicide.” At one point, Temkin also instructed
Chet to rape Hershman’s wife and daughter, while Hershman
and his son watched, in order to extort more money from
Hershman.
The Sheriff’s Department apprised the FBI of the
situation in December of 2009. The Sheriff’s Department
indicated that Temkin had given Chet everything that a
hitman would need except money, but they did not have
enough to file charges without the exchange of money.
Therefore, in March of 2010, the Sheriff’s Department and
the FBI decided to “burn” the investigation by warning
Temkin that they were aware of his interactions with a known
hitman. Law enforcement informed Temkin that he was
being watched and instructed him to leave Hershman and
Hershman’s family alone.
In May 2010, after Temkin showed signs that he did not
intend to follow these instructions, an undercover FBI agent,
posing as a different hitman named “Pavel,” contacted
Temkin. During the initial call, Temkin indicated that he may
have secured the “services” of someone else, so Pavel agreed
to call Temkin back in one week. On July 7, 2010, Pavel
called Temkin and stated, “I understand that you may need
my services after all.” Temkin responded, “Well strangely
enough, yes.” Meeting the next day, July 8th, 2010, Temkin
UNITED STATES V. TEMKIN 7
told Pavel to “very strongly persuade [Hershman and his
business partner] to move the money from the Colombian
account into my Montevideo account.” Temkin indicated that
Pavel should force Hershman to transfer $15 million into
Temkin’s bank account. Temkin gave Pavel an address for
Hershman’s apartment in Spain, information about a bank
account through which Pavel could transfer the money to
Temkin, and copies of the intended victims’ passports.
Temkin also instructed Pavel that he wanted Hershman,
Hershman’s wife, and Hershman’s business partner to “go for
a very long boat ride. Yes. Out to sea.” Temkin gave Pavel
$3,000 in cash to cover expenses, noting “[t]hat’s as much as
I can move.” At the end of the meeting, Pavel said to
Temkin, “I walk out [of] here, the job is done. They’re not
going to come back from the trip. It’s all done. You
understand that?” Temkin responded, “I understand that.”
After their July 8th meeting, Temkin left two voicemail
messages for Pavel. In the first, left on the evening of July
8th, Temkin stated that “there is some strong interest” in him
from law enforcement, and therefore they “might have to
rethink.” In a second message left on the morning of July
9th, Temkin indicated, using coded language, that another
plan “may work equally as well.” The calls went unreturned,
and Temkin was arrested on July 14, 2010.
Following a bench trial, Temkin was convicted of three
counts: (1) solicitation to commit a crime of violence under
18 U.S.C. § 373(a); (2) attempt to interfere with commerce by
threats and violence under 18 U.S.C. § 1951(a); and (3) the
use of interstate commerce facilities in the commission of
murder-for-hire under 18 U.S.C. § 1958(a) (“murder-for-
hire”). The district court sentenced Temkin to six years of
imprisonment and three years of supervised release. In this
8 UNITED STATES V. TEMKIN
timely appeal, Temkin challenges the sufficiency of the
evidence for all three counts and argues that he was
entrapped. In a cross-appeal, the Government challenges the
sentence imposed by the district court as both procedurally
and substantively unreasonable.
II. Jurisdiction and Standard of Review
We have jurisdiction to review Temkin’s conviction and
sentence under 18 U.S.C. § 3742(b) and 28 U.S.C. § 1291.
Following a bench trial, a district court’s conclusions of law
are reviewed de novo and findings of fact are reviewed for
clear error. OneBeacon Ins. Co. v. Haas Indus., Inc.,
634 F.3d 1092, 1096 (9th Cir. 2011). In reviewing a district
court’s judgment in a bench trial, sufficient evidence supports
a conviction if, “viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979); see United States v. Magallon-Jimenez, 219 F.3d
1109, 1112 (9th Cir. 2000). “We review a district court’s
construction and interpretation of the United States
Sentencing Guidelines Manual (‘Guidelines’) de novo and its
application of the Guidelines to the facts for abuse of
discretion.” United States v. Popov, 742 F.3d 911, 914 (9th
Cir. 2014).
III. Conviction
A. Solicitation of a Crime of Violence
Under Count 1, Temkin was convicted of solicitation to
commit a crime of violence, namely murder-for-hire. Temkin
argues that there was insufficient evidence to establish that he
UNITED STATES V. TEMKIN 9
“actually intended that Pavel kill Hershman.” Temkin first
argues that he created a condition precedent at his July 8,
2010 meeting with Pavel. Temkin asserts he knew that this
condition precedent would never be satisfied, and thus there
was insufficient evidence of his intent to go through with the
murder. Second, Temkin argues that even if there were
sufficient evidence to establish a plan to kill Hershman, he
later abandoned that plan in his July 8th and 9th voicemails
for Pavel. The district court rejected both arguments, finding
that “[a]t the July 8th meeting, the defendant just reached a
boiling point and crossed the line.” The district court found
that during that meeting “the defendant knowingly solicited,
commanded, induced or otherwise persuaded another to travel
in interstate or foreign commerce to commit murder for hire.”
Sufficient evidence supports the district court’s findings and
verdict.
1. Condition Precedent
At the outset of the July 8, 2010 meeting, Temkin stated
that he planned to check with a “relative who’s ex-FBI” that
evening to determine the FBI’s “level of interest” in him.
Temkin characterizes this statement as creating “a condition
precedent that he knew would never be satisfied.” However,
as the district court correctly reasoned, the remainder of the
meeting and Temkin’s subsequent voicemails confirm that
Temkin and Pavel reached a concrete deal during this
meeting.
Immediately after Temkin said he planned to check with
his ex-FBI relative, Pavel said he normally does one meeting
only and then “get[s] it done” with a “success rate [of]
100%.” To this, Temkin responded: “Perfect. Well, I need
it done.” Temkin did not express any contingencies or
10 UNITED STATES V. TEMKIN
reservations. While he did express a desire to check with his
ex-FBI relative, his statement to that effect could be
understood as indicating that he planned to do so as a
precaution meant to avoid detection by law enforcement.
Then, during the meeting, Temkin provided Pavel with an
address for Hershman’s Southern Spain apartment,
information about a bank account for transferring the
extortion money, and copies of the intended victims’
passports. Temkin also instructed Pavel that the extortion
money should be moved into his Montevideo account, and
that the victims should be taken on a boat ride and lost at sea.
Pavel, in turn, advised Temkin that the job would be done
when he left and confirmed that Temkin understood. Thus,
Temkin’s argument that the only permissible finding was that
checking with his ex-FBI relative was “a condition precedent
that he knew would never be satisfied” is unpersuasive. The
evidence is sufficient to allow any rational trier of fact to
find, beyond a reasonable doubt, that Temkin intended at the
July 8th meeting that Pavel kill Hershman. See Jackson,
443 U.S. at 319.
2. Abandonment
Next, Temkin argues that even if there were sufficient
evidence of his intent to solicit murder based on the July 8th
meeting, in his subsequent voicemails he abandoned the plan.
The “voluntary and complete renunciation” of criminal intent
is an affirmative defense to the charge of solicitation.
18 U.S.C. § 373(b). Section 373(b) provides, however, that
“[a] renunciation is not ‘voluntary and complete’ if it is
motivated in whole or in part by a decision to postpone the
commission of the crime until another time or to substitute
another victim or another but similar objective.” Id.UNITED STATES V. TEMKIN 11
Temkin failed to meet his burden of proving a voluntary
and complete renunciation “by a preponderance of the
evidence.” Id. The district court correctly found that the July
8th and 9th voicemails indicate Temkin’s desire to avoid
detection by law enforcement and, at most, a decision to
delay—not to stop—the murder-for-hire. Viewing this
evidence in the light most favorable to the prosecution,
Jackson, 443 U.S. at 319, sufficient evidence supports the
district court’s rejection of Temkin’s renunciation defense.
B. Interference with Commerce by Threats or Violence
The Hobbs Act provides: “Whoever in any way or degree
obstructs, delays, or affects commerce or the movement of
any article or commodity in commerce, by . . . extortion or
attempts or conspires so to do, . . . shall be fined under this
title or imprisoned not more than twenty years, or both.”
18 U.S.C. § 1951(a). Section 1951(b)(2) defines extortion as
“the obtaining of property from another, with his consent,
induced by wrongful use of actual or threatened force,
violence, or fear, or under color of official right.” Under
Count 2, Temkin was convicted of knowingly attempting “to
intentionally obstruct, delay, and affect commerce, and the
movement of articles and commodities in commerce, by
extortion” in violation of the Hobbs Act. See 18 U.S.C.
§ 1951(a).
Sufficient evidence supports the district court’s
conclusion that Temkin took a substantial step toward
carrying out his plan to extort and kill Hershman. While
Temkin argues that he did not take a substantial step toward
extortion because his plan was based on fictions invented by
Malpezzi, factual impossibility is not a defense to an inchoate
offense, such as the attempt for which Temkin was convicted.
12 UNITED STATES V. TEMKIN
See United States v. Fleming, 215 F.3d 930, 936 (9th Cir.
2000). Additionally, Temkin’s abandonment argument fails
because abandonment is not a defense when an attempt, as
here, “has proceeded well beyond preparation.” United States
v. Bussey, 507 F.2d 1096, 1098 (9th Cir. 1974). Temkin met
with Pavel, who he believed was a hitman, and gave him the
intended victims’ address and personal information, details
about a bank account where Pavel could transfer the money
he was to extort from Hershman, and $3,000 in cash. This
evidence supports the district court’s conclusion that
Temkin’s actions constituted a “substantial step,” as a
reasonable observer could conclude beyond a reasonable
doubt that Temkin gave Pavel all that was necessary to
provide him with the means of extorting and killing
Hershman, in violation of the Hobbs Act. See United States
v. Scott, 767 F.2d 1308, 1311–13 (9th Cir. 1985).
Sufficient evidence also supports the district’s court’s
conclusion that interstate commerce “would have been
affected in some way” by Temkin’s acts. To prove that
interstate commerce would have been affected for purposes
of the Hobbs Act, “the government need only establish that
a defendant’s acts had a de minimis effect on interstate
commerce.” United States v. Lynch, 437 F.3d 902, 908 (9th
Cir. 2006) (en banc) (per curiam). Furthermore, “[t]he
government need not show that a defendant’s acts actually
affected interstate commerce.” Id. at 909. Rather, proof of
a potential impact on interstate commerce is sufficient. Id.Temkin’s conduct involved phone calls, emails, hacking into
email accounts, and the exchange of money; his extortion
plan would have involved international travel and an overseas
wire transfer. This evidence is more than sufficient to satisfy
the requirement of a de minimis effect on interstate
commerce. See United States v. Lee, 818 F.2d 302, 305 (4th
UNITED STATES V. TEMKIN 13
Cir. 1987).1 Viewing the evidence in the light most favorable
to the prosecution, the district court could have found the
essential elements of attempt to obstruct commerce by
extortion beyond a reasonable doubt. See Jackson, 443 U.S.
at 319.
C. Murder-for-Hire
Under Count 3, Temkin was convicted of using interstate
commerce facilities in the commission of murder-for-hire
under 18 U.S.C. § 1958(a). The statute includes, as an
element, that a defendant “travel[] in or cause[] another
(including the intended victim) to travel in interstate or
foreign commerce, or use[] or cause[] another (including the
intended victim) to use the mail or any facility of interstate or
foreign commerce, with intent that a murder be committed.”
18 U.S.C. § 1958(a). Sufficient evidence supports the district
court’s conclusion that Temkin’s July 7, 2010 phone call with
Pavel satisfies this requirement.
1
Temkin raises two additional arguments in connection with Count 2 of
the indictment, both of which are meritless. First, Temkin argues that
Count 2 is “fatally flawed” because it added the words “hire an
individual,” which are not included in the statute. The insertion of these
words could not have interfered with Temkin’s understanding of the
elements of the charged offense. See United States v. Woodruff, 50 F.3d
673, 676 (9th Cir. 1995) (“[A]n indictment is sufficient if it sets forth the
elements of the charged offense so as to ensure the right of the defendant
not to be placed in double jeopardy and to be informed of the offense
charged.”). If anything, Temkin was more informed of the charge against
him due to the added words. Temkin also argues that there is no federal
jurisdiction over Count 2 because his conduct could not have affected
commerce in the United States. As explained above, Temkin’s
threatening and harassing activities—phone calls, paying money to Pavel,
and use of the internet—easily satisfy the interstate commerce requirement
of the federal statute.
14 UNITED STATES V. TEMKIN
The July 7th telephone call qualifies as use of a facility of
interstate commerce. See 18 U.S.C. § 1958(b)(2); United
States v. Nader, 542 F.3d 713, 720 (9th Cir. 2008). Under the
statute, Temkin must have used the telephone “with intent
that a murder be committed.” 18 U.S.C. § 1958(a). The July
7th call reflects not only Temkin’s desire to hire Pavel but
also a strong sense of urgency. During the phone call,
Temkin expressed his desire to hire a hitman, agreed to
provide identifying information for the intended victims,
agreed to bring money to pay Pavel, and also expressed a
desire that Pavel execute the plan quickly. Viewing the
evidence in the light most favorable to the prosecution, a
rational trier of fact could have found beyond a reasonable
doubt that Temkin used the telephone, a facility of interstate
commerce, with the intent that a murder be committed. See
Jackson, 443 U.S. at 319.
D. Entrapment
The district court properly rejected Temkin’s entrapment
defense:
When a defendant asserts an entrapment
defense, the government must prove beyond a
reasonable doubt that he was not entrapped by
showing either: (1) the defendant was
predisposed to commit the crime before being
contacted by government agents; or (2) the
defendant was not induced by the government
agents to commit the crime.
United States v. Mejia, 559 F.3d 1113, 1116 (9th Cir. 2009)
(internal quotation marks omitted). The district court
correctly found predisposition. While we review entrapment,
UNITED STATES V. TEMKIN 15
a matter of law, de novo, we defer to credibility
determinations made by the factfinder, unless, viewing the
evidence in the light most favorable to the government, no
reasonable factfinder could have concluded the defendant was
either predisposed or not induced to commit the charged
offenses. See United States v. Si, 343 F.3d 1116, 1124–25
(9th Cir. 2003).
The district court correctly found that Temkin was
predisposed to commit the charged crimes, in part, because of
“the way he dealt with Malpezzi, and the way he acted with
‘Chet,’ the first hitman.”
In evaluating predisposition, we consider five
factors: (1) the character and reputation of the
defendant; (2) whether the government made
the initial suggestion of criminal activity;
(3) whether the defendant engaged in the
activity for profit; (4) whether the defendant
showed any reluctance; and (5) the nature of
the government’s inducement.
United States v. Jones, 231 F.3d 508, 518 (9th Cir. 2000). Of
these five factors, “the most important is the defendant’s
reluctance to engage in criminal activity.” Id. (internal
quotation marks omitted).
Long before Temkin came into contact with either the
Sheriff’s Department or FBI undercover hitmen, Temkin
became obsessed with getting even more money than
Hershman owed him. Temkin stole from Hershman’s storage
unit and fraudulently gained information regarding
Hershman’s hospitalized daughter. As the district court
noted, Temkin “is no stranger to law breaking as evidenced
16 UNITED STATES V. TEMKIN
by the breaking into the storage facility.” Temkin initiated
his first plan, to have Morrison poison Hershman, a plan
interrupted by Morrison’s arrest. Temkin then offered money
to Malpezzi to kill Hershman. Unbeknownst to Temkin,
Malpezzi, reluctant to participate in Temkin’s murder-for-hire
scheme, recorded their conversations and gave the recordings
to the Sheriff’s Department. It was only then that first “Chet”
and then “Pavel” entered the picture. But, with their
appearance on the scene, Temkin remained in charge of the
plan, giving detailed instructions, and acting more urgently.
In an early meeting, Temkin instructed Chet that he wanted
Hershman killed and his family taken “as leverage.” Temkin
admitted he had given this plan “a great deal of thought.” At
one point, Temkin instructed Chet to rape Hershman’s wife
and daughter while Hershman and his son watched. Temkin
again took the lead in planning the extortion and murder in
his meetings with Pavel. Temkin did not show any reluctance
to engage in criminal activity. See United States v.
McClelland, 72 F.3d 717, 723 (9th Cir. 1995).
Law enforcement not only did not initiate the extortion
and murder plot; they became involved only when it appeared
that Temkin was taking substantial steps toward carrying it
out. Moreover, besides revenge for a perceived wrong,
Temkin was determined to carry out this scheme to obtain
money, even after he had been repaid his initial loan.
Because the district court correctly found that Temkin was
predisposed to commit the crimes charged, we need not
address inducement. See United States v. Williams, 547 F.3d
1187, 1197–99 (9th Cir. 2008). Sufficient evidence supports
the district court’s rejection of Temkin’s entrapment defense.
UNITED STATES V. TEMKIN 17
IV. Procedural Sentencing Error
The district court sentenced Temkin to six years of
imprisonment and three years of supervised release on each
of his three counts of conviction, to be served concurrently.
The district court, relying on the guidance of the Probation
Office, calculated an offense level of 32 under U.S.S.G.
§ 2E1.4(a)(1), which governs the sentencing range for
murder-for-hire. However, Temkin’s correct offense level is
37 under U.S.S.G. § 2A1.5, which governs the sentencing
range for conspiracy or solicitation to commit murder. The
district court materially erred by using an offense level of 32,
rather than 37, to calculate Temkin’s sentencing range under
the Guidelines.
A. Base Offense Level for Count 1
In Count 1, Temkin was convicted of soliciting a crime of
violence under 18 U.S.C. § 373.2 Appendix A to the
Guidelines provides the offense guideline sections that are
applicable to the statute of conviction. See U.S. Sentencing
Guidelines Manual 541–63 (2010). The base offense level
for a violation of 18 U.S.C. § 373 is dictated by either
U.S.S.G. § 2A1.5 or § 2X1.1. Id. at 546. Section 2A1.5
governs “Conspiracy or Solicitation to Commit Murder.”
Section 2X1.1 governs solicitation offenses not covered by
other specific offense guidelines.
2
The parties agree that Count 2, attempted extortion in violation of the
Hobbs Act, yields a lower base offense level than does either Count 1 or
Count 3. To determine the offense level applicable to Temkin’s group of
offenses, the court must determine the count with the highest base offense
level. U.S.S.G. § 3D1.3(a). Therefore, we discuss calculation of the base
offense level for only Counts 1 and 3.
18 UNITED STATES V. TEMKIN
In Count 1, the “crime of violence” Temkin was
convicted of soliciting was murder-for-hire in violation of
18 U.S.C. § 1958(a). Solicitation to commit murder-for-hire
is a solicitation offense not specifically covered by its own
Guidelines section. Thus, U.S.S.G. § 2X1.1 is the correct
starting point for Count 1. Section 2X1.1 provides that the
base offense level from the guideline for the “substantive
offense” should be used to calculate the offense level.
Section 2X1.1, Application Note 2 defines “substantive
offense” as “the offense that the defendant was convicted of
soliciting, attempting, or conspiring to commit,” here,
18 U.S.C. § 1958(a). Appendix A to the Guidelines indicates
that U.S.S.G. § 2E1.4 applies to determine the sentencing
range for a conviction under 18 U.S.C. § 1958. U.S.
Sentencing Guidelines Manual 554 (2010). Thus U.S.S.G.
§ 2E1.4 controls the base offense level for Count 1.
The Government argues that the applicable Guidelines
section for determining the base offense level for Count 1 is
U.S.S.G. § 2A1.5, which covers “Conspiracy or Solicitation
to Commit Murder.” However, Temkin was not convicted of
solicitation to commit murder. Temkin was convicted of
solicitation to commit murder-for-hire in violation of
18 U.S.C. § 1958, and no Guidelines section expressly covers
solicitation to violate 18 U.S.C. § 1958. While it is true that
Temkin’s underlying conduct in Count 1 would include
solicitation to commit murder, U.S.S.G. § 2X1.1 instructs
courts to look to the underlying “substantive offense” and not
the underlying unlawful conduct.
Thus, in line with the Probation Office’s instructions and
the district court’s analysis, U.S.S.G. § 2X1.1, which in turn
leads to U.S.S.G. § 2E1.4, guides the base offense level
calculation for Count 1. Section 2E1.4 is also the applicable
UNITED STATES V. TEMKIN 19
Guidelines section for determining the sentencing range for
Count 3.
B. Base Offense Level for Count 3
Under Count 3, Temkin was convicted of using interstate
commerce facilities in the commission of murder-for-hire, in
violation of 18 U.S.C. § 1958. As for Count 1, Appendix A
to the Guidelines indicates that U.S.S.G. § 2E1.4 supplies the
applicable base offense level for sentencing. U.S. Sentencing
Guidelines Manual 554 (2010). Section 2E1.4(a) provides
that the base offense level is the greater of “(1) 32; or (2) the
offense level applicable to the underlying unlawful conduct.”
Section 2E1.4, unlike U.S.S.G. § 2X1.1, instructs courts to
apply the offense level applicable to the underlying unlawful
conduct, not the underlying substantive offense.
Accordingly, the district court erred by using the base offense
level of 32 set forth in U.S.S.G. § 2E1.4(a)(1). The district
court should have used the cross-referencing provision in
U.S.S.G. § 2E1.4(a)(2), because the unlawful conduct
underlying Temkin’s murder-for-hire conviction was
solicitation to commit murder, which yields an offense level
greater than 32. Under U.S.S.G. § 2A1.5, the base offense
level for solicitation to commit murder is 33, plus a 4-level
enhancement for the exchange of money. Thus, the correct
offense level for Temkin’s conviction is 37.
In 2004, U.S.S.G. § 2A1.5 was amended as part of an
effort to increase the penalty for homicide offenses; the base
offense level for conspiracy or solicitation to commit murder
20 UNITED STATES V. TEMKIN
was increased from 28 to 33.3 However, U.S.S.G. § 2E1.4,
which falls in the category of “offenses involving criminal
enterprises and racketeering,” remained unchanged. Before
the 2004 amendments, solicitation to commit murder
involving the exchange of money resulted in an offense level
of 32 under U.S.S.G. § 2A1.5. Section 2A1.5 set forth a base
offense level of 28 and provided a 4-level enhancement for
the exchange of money. The offense level for the use of
interstate commerce facilities in the commission of murder-
for-hire under U.S.S.G. § 2E1.4(a)(1) was also 32. However,
after the 2004 amendments, the offense level for solicitation
to commit murder involving the exchange of money jumped
to 37 under U.S.S.G. § 2A1.5, which set forth the new base
offense level of 33, and, as before, added the 4-level
enhancement for the exchange of money. The two
subsections of U.S.S.G. § 2E1.4(a) enable the Guidelines
section to keep pace with changes to U.S.S.G. § 2A1.5, while
also maintaining a floor base offense level of 32. That is,
U.S.S.G. § 2E1.4(a)(1) ensures the base offense level does
not drop below 32, while U.S.S.G. § 2E1.4(a)(2) keeps pace
with changes to U.S.S.G. § 2A1.5 and related Guidelines
sections by incorporating the offense level applicable to the
underlying unlawful conduct.
While we have not addressed the interplay between
U.S.S.G. § 2A1.5 and U.S.S.G. § 2E1.4 since the 2004
amendments to the Guidelines, two of our sister circuits have.
In United States v. Vasco, the defendant, like Temkin, was
convicted of using interstate commerce facilities in the
3
See U.S. SENTENCING COMMISSION, Amendments to the Sentencing
Guidelines 6–7 (May 10, 2004), http://www.ussc.gov/sites/default/
f i l e s/pd f/amend ment-p r o cess/r ead er -fr i e n d l y- a me n d me n t s /
20040430_RF_Amendments.pdf.
UNITED STATES V. TEMKIN 21
commission of murder-for-hire in violation of 18 U.S.C.
§ 1958. 564 F.3d 12, 15, 22 (1st Cir. 2009). At sentencing in
Vasco, the district court applied the cross-referencing
provision in U.S.S.G. § 2E1.4(a)(2). Id. at 22. The district
court found that the “‘underlying unlawful conduct’ was
solicitation to commit murder.” Id. Section 2A1.5(b)(1),
which corresponds to solicitation to commit murder,
establishes a base offense level of 33, increased by 4 levels
for the exchange of money. Accordingly, Vasco’s offense
level for his murder-for-hire conviction was 37 under
U.S.S.G. § 2A1.5. Vasco, 564 F.3d at 22. The First Circuit
noted that
[t]he reference in § 2E1.4 to a [base offense
level] of the greater of thirty-two or ‘the
offense level applicable to the underlying
conduct’ is curious, as virtually every time a
defendant is charged with the use of interstate
commerce facilities in the commission of
murder-for-hire, the underlying unlawful
conduct will be solicitation to commit murder.
Id. at 23. Nonetheless, the court concluded that “[w]e see no
impropriety in the district court’s having used the
cross-reference” in U.S.S.G. § 2E1.4(a)(2). Id.
In United States v. Dotson, the defendant was also
convicted of violating 18 U.S.C. § 1958 and was sentenced
using an offense level of 37. 570 F.3d 1067, 1069 (8th Cir.
2009). As in Vasco, the “district court cross-applied U.S.S.G.
§ 2A1.5 for Conspiracy or Solicitation to Commit Murder,
which has a base offense level of 33, and a 4-level increase if
the offense involved the offer or receipt of anything of
pecuniary value for undertaking the murder.” Id. Dotson
22 UNITED STATES V. TEMKIN
argued that the cross-reference in U.S.S.G. § 2E1.4(a)(2)
“should be applied only if the crime encompassed ‘underlying
unlawful conduct’ in addition to that required to violate
18 U.S.C. § 1958.” Id. The Eighth Circuit rejected this
argument, noting that it “is contrary to the plain language of
§ 2E1.4(a), which does not contain an additional conduct
requirement.” Id.; see also United States v. Smith, 755 F.3d
645, 647 (8th Cir. 2014). The Eighth Circuit held that the
district court did not err in calculating an offense level of 37.
Dotson, 570 F.3d at 1070.4
We agree with the First and Eighth Circuits; the best
interpretation of U.S.S.G. § 2E1.4(a) is its plain meaning.
Section 2E1.4(a) instructs the use of the greater of “(1) 32; or
(2) the offense level applicable to the underlying unlawful
conduct.” Solicitation to commit murder is the unlawful
conduct underlying Temkin’s conviction under 18 U.S.C.
§ 1958(a), and the offense level for solicitation to commit
murder involving the exchange of money is greater than 32.
It may be true that solicitation to commit murder is routinely
the unlawful conduct underlying a murder-for-hire
conviction. Thus, in determining the base offense level for
4
The United States District Court for the District of New Mexico has
also addressed the interplay between U.S.S.G. § 2A1.5 and U.S.S.G.
§ 2E1.4, reaching the same conclusion as the First and Eighth Circuits.
United States v. Summers, 506 F. Supp. 2d 686, 695 (D.N.M. 2007). In
Summers, the United States Probation Office contacted the United States
Sentencing Commission “in an effort to obtain clarification on the
application of § 2E1.4, as this guideline is not commonly applied in the
District of New Mexico.” Id. at 692. A Sentencing Commission
representative confirmed that it was proper to calculate an offense level of
37 for a violation of 18 U.S.C. § 1958, using U.S.S.G. § 2E1.4(a)(2)’s
cross-reference to incorporate U.S.S.G. § 2A1.5’s base offense level of 33
and adding four levels for the exchange of money. Id.
UNITED STATES V. TEMKIN 23
murder-for-hire under U.S.S.G. § 2E1.4, § 2E1.4(a)(2)’s
cross-reference to U.S.S.G. § 2A1.5 will typically control
given that § 2A1.5’s base offense level has increased to 33.
However, this does not “read out” the base offense level of 32
in U.S.S.G. § 2E1.4(a)(1). Rather, the Sentencing
Commission uses the cross-referencing provision in U.S.S.G.
§ 2E1.4(a) to ensure this Guidelines section keeps pace with
increases to the base offense level set forth in U.S.S.G.
§ 2A1.5 and related Guidelines sections, while maintaining a
minimum base offense level of 32. The plain language of
U.S.S.G. § 2E1.4(a) indicates that a sentencing judge should
“[a]pply the greater” of the two methods, and the cross-
reference method results in the greater offense level.
Therefore, the district court committed procedural error by
failing to apply the cross-referencing provision in U.S.S.G.
§ 2E1.4(a)(2).
* * *
In sum, under either Count 1 or Count 3, Temkin’s
offense level should have been set by U.S.S.G. § 2A1.5. The
offense level for solicitation to commit murder under
U.S.S.G. § 2A1.5 is 37—33, with a 4-level increase for the
“offer or the receipt of anything of pecuniary value for
undertaking the murder.” U.S.S.G. §§ 2A1.5(a), (b)(1).
Accordingly, Temkin’s offense level is 37.5 Thus, the district
5
An offense level of 37 corresponds to a Guidelines range of 210–262
months for Temkin’s criminal history category of I. The statutory
maximum for Count 3, 18 U.S.C. § 1958(a), is ten years (120 months) if
no personal injury results. However, the statutory maximum under Count
2, 18 U.S.C. § 1951(a), is twenty years (240 months). When sentencing
on multiple counts of conviction, the total sentence imposed may be
greater than the statutory maximum for a particular count. See U.S.S.G.
§ 5G1.2(b); see also id., Application Note 3. Under U.S.S.G. § 5G1.2(d),
24 UNITED STATES V. TEMKIN
court erred in using an offense level of 32 to calculate
Temkin’s Guidelines range.
The district court’s error in calculating the offense level
was not harmless. The district court must begin its
sentencing analysis with the correct Guidelines range. See
United States v. Munoz-Camarena, 631 F.3d 1028, 1030 (9th
Cir. 2011) (per curiam). We cannot deem this error harmless
because the district court did not perform any alternative
analysis or provide any explanation for what the sentence
would have been under an offense level of 37. See id. at 1030
n.5. We must therefore vacate Temkin’s sentence and
remand for resentencing. Because the district court erred in
calculating the proper Guidelines range, we do not reach the
question of whether the sentence is substantively reasonable.
See United States v. Kilby, 443 F.3d 1135, 1140 (9th Cir.
2006).
V. Conclusion
Sufficient evidence supports Temkin’s conviction.
However, at sentencing, the district court materially erred in
calculating the proper Guidelines range. Accordingly, we
affirm all three counts of Temkin’s conviction, but vacate his
sentence and remand for resentencing.
AFFIRMED in part, VACATED in part, and
REMANDED.
“[i]f the sentence imposed on the count carrying the highest statutory
maximum is less than the total punishment, then the sentence imposed on
one or more of the other counts shall run consecutively, but only to the
extent necessary to produce a combined sentence equal to the total
punishment.”