United States v. Frank Solorza ( 2012 )

FILED
NOT FOR PUBLICATION MAR 05 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10219
Plaintiff - Appellee, D.C. No. 4:09-cr-00217-PJH-1
v.
MEMORANDUM *
FRANK SALVADOR SOLORZA,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted February 13, 2012
San Francisco, California
Before: HUG, B. FLETCHER, and PAEZ, Circuit Judges.
Defendant-Appellant Frank Solorza appeals his sentence following
convictions for conspiracy, in violation of 18 U.S.C. § 371, impersonation of a
federal officer, in violation of 18 U.S.C. § 912, and attempted extortion by a
federal officer, in violation of 18 U.S.C. § 872. The charges arose from Solorza’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
attempted extortion of his cousins, the Escatel family. He was sentenced to 36
months on each count with all terms to run concurrently.
On appeal, Solorza challenges only his sentence. We review the district
court’s interpretation of the Sentencing Guidelines de novo, and its findings of fact
for clear error. United States v. Rivera, 527 F.3d 891, 908 (9th Cir. 2008) (citing
United States v. Garcia, 497 F.3d 964, 969 (9th Cir. 2007)).
Solorza first asserts that the district judge erred in applying the guideline
corresponding to his offense of conviction because he is an atypical offender, and
therefore the district judge should have selected a guideline more applicable to his
offense conduct. We disagree. In selecting an appropriate guideline, the district
court must determine the guideline section in Chapter Two (Offense Conduct)
applicable to the offense of conviction, referring to the Statutory Index contained
in Appendix A of the Guidelines. United States v. McEnry, 659 F.3d 893, 897 (9th
Cir. 2011). To determine which section of Chapter Two contains the appropriate
guideline, the district court must consider the crime of conviction as charged in the
indictment, rather than the manner in which the defendant committed the offense.
Offense conduct becomes relevant only once the applicable guideline has been
selected, in applying enhancements or adjustments. Id. (“[A] district court may not
use relevant conduct to select whatever guideline it wants; relevant conduct may be
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considered only in the application of enhancements and adjustments once a
guideline has been selected.”). This is precisely the approach that the district judge
followed in sentencing Solorza. Accordingly, the district judge did not err.1
Solorza next asserts that the district judge erred in applying the vulnerable
victim enhancement to his sentence. Section 3A1.1(b)(1) provides for a two-level
adjustment when “the defendant knew or should have known that a victim of the
offense was a vulnerable victim.” U.S.S.G. § 3A1.1(b)(1). Application Note 2
defines “vulnerable victim” as one who is “unusually vulnerable due to age,
physical or mental condition, or who is otherwise particularly susceptible to the
criminal conduct.” Id. “A condition that occurs as a necessary prerequisite to the
commission of a crime cannot constitute an enhancing factor under § 3A1.1. The
vulnerability that triggers § 3A1.1 must be an ‘unusual’ vulnerability which is
1
Solorza’s reliance on excised language from the pre-2000 Sentencing
Guidelines, which permitted the district court to consider the defendant’s offense
conduct in “atypical” cases, and cases relying on that language, is misplaced. See
McEnry, 659 F.3d at 899 n.8 (“To the extent that some of our cases rely on the
excised language (directly or indirectly) to suggest that relevant conduct may be
used to select the appropriate guideline pursuant to U.S.S.G. § 1B1.2(a) and the
Statutory Index, they have been superseded by th[e 2000] amendment[s to the
Sentencing Guidelines].”) (collecting cases).
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present in only some victims of that type of crime.” United States v. Moree, 897
F.2d 1329, 1335 (9th Cir. 1990).
Solorza asserts that the district judge erred in applying the enhancement
because she cited to characteristics common among undocumented immigrants
generally, rather than characteristics specific to the Escatels; because the
characteristics that rendered the Escatels vulnerable are inherent in the crime of
conviction; and, because the Escatels were in fact uniquely resistant to his scheme.
Again, we disagree.
First, the district judge found the Escatels to be particularly vulnerable
because of their status as undocumented immigrants whose status was known to
ICE. This characteristic distinguishes them from undocumented immigrants
generally, and made them particularly vulnerable to Solorza’s scheme. See United
States v. Castaneda, 239 F.3d 978, 981 n.4. (9th Cir. 2001) (noting that the
vulnerable victim enhancement “does not . . . require that the victims be more
vulnerable than the typical victims of the particular scheme or type of scheme.”).
Second, the offense of conviction at issue here—namely, extortion by one
impersonating a federal official—applies not just to those who pretend to be a
federal immigration officer to get money from undocumented aliens, but also to
anyone who extorts money by pretending to be a federal official. 18 U.S.C. § 912.
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Because the statute of conviction applies broadly, not all the victims are vulnerable
in the same way for the same reasons. United States v. Mendoza, 262 F.3d 957,
962 (9th Cir. 2001). Thus, even though Solorza’s scheme targeted those with a
unique vulnerability, it cannot be said that the offense of conviction necessarily
presupposes that particular vulnerability. See id.Finally, the fact that the Escatels chose to call ICE rather than to pay Solorza
the bribes he demanded is immaterial. Solorza was aware of the Escatels’
precarious legal status, as well as their past victimization by Bertina Frost, and
reasonably anticipated that they would comply with his demands. See United
States v. Peters, 962 F.2d 1410, 1418 (9th Cir. 1992).
For these reasons, Solorza’s sentence is AFFIRMED.
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