DocketNumber: Docket No. 17-1827-cr; August Term 2018
Citation Numbers: 910 F.3d 686
Judges: Chin, Parker, Sack
Filed Date: 12/13/2018
Status: Precedential
Modified Date: 11/2/2022
Defendant-appellant Tolga Safer Yilmaz appeals from a judgment of conviction, entered June 8, 2017, following his guilty plea to one count of stalking, in violation of 18 U.S.C. § 2261A. He was sentenced principally to 37 months' imprisonment and three years' supervised release. On appeal, Yilmaz challenges the district court's application of a two-level sentence enhancement, in accordance with the United States Sentencing Guidelines (the "Guidelines"), for threatened use of a dangerous weapon. He also argues that his 37-month sentence is "incongruous with the sentences imposed on other similarly situated defendants." Def. Appellant's Br. at 18.
In 2008, while in college in Oregon, Yilmaz met a female student (the "Victim"). The two dated on and off through the Spring 2009 semester. In Fall 2009, after he had graduated, Yilmaz began harassing and stalking the Victim, physically as well as by email. He continued to stalk, harass, intimidate, and threaten her for almost seven years. Indeed, between October 2011 and April 2016, he sent some 10,694 emails to the Victim and her professors, administrators, other university personnel, students, family members, and friends. On some days, Yilmaz sent hundreds of such emails.
In Spring 2016, Yilmaz, who had returned to his home country, Turkey, began sending the Victim messages indicating that he was going to travel to New York -- where the Victim had relocated -- to confront her. He flew to Portland, Oregon in May 2016, where law enforcement officials arrested him. He was charged in the Southern District of New York with stalking, and he pled guilty and was sentenced as set forth above.
*688We review the procedural and substantive reasonableness of a sentence under a deferential abuse-of-discretion standard. United States v. Thavaraja ,
I. Procedural Reasonableness
Yilmaz argues that the two-level enhancement for threatened use of a dangerous weapon is inapplicable here because he never displayed a weapon, and the Victim did not perceive or find credible any weapon-related threat. This argument is unpersuasive.
A district court commits procedural error when it, inter alia , "makes a mistake in its Guidelines calculation." United States v. Cavera ,
(i) an instrument capable of inflicting death or serious bodily injury; or (ii) an object that is not an instrument capable of inflicting death or serious bodily injury but (I) closely resembles such an instrument; or (II) the defendant used the object in a manner that created the impression that the object was such an instrument (e.g. a defendant wrapped a hand in a towel during a bank robbery to create the appearance of a gun).
Here, the district court imposed a four-level enhancement because it found the offense involved two aggravating factors: the threatened use of a dangerous weapon and a pattern of activity involving stalking, threatening, harassing, or assaulting the same victim.
The plain language of Section 2A6.2(b)(1)(D) requires either possession or threatened use of a dangerous weapon, indicating that the latter alone is sufficient grounds for the enhancement to apply. See United States v. Mingo ,
*689Moreover, the Guidelines' Commentary indicates that displaying a weapon is unnecessary as "a defendant [who] wrapped a hand in a towel during a bank robbery to create the appearance of a gun" would be subject to an enhancement concerning dangerous weapons. See U.S.S.G. § 1B1.1 cmt. n.1(E); see also Stinson v. United States ,
Finally, Yilmaz argues that the threatened use enhancement is inapplicable because the Victim did not perceive the threat and find it credible. We are not persuaded. The Guidelines do not require that the victim be aware of the threat, as Section 2A6.2(b)(1)(D) simply requires that the offense "involved" the "possession, or threatened use, of a dangerous weapon." See Mingo ,
II. Substantive Reasonableness
Although Yilmaz does not explicitly challenge the substantive reasonableness of his sentence, he argues that his 37-month sentence "is incongruous with the sentences imposed on other similarly situated defendants." Def. Appellant's Br. at 18. To the extent this is a challenge to the substantive reasonableness of his sentence, it fails.
"[A] trial court's sentencing decision will be classified as error only if it 'cannot be located within the range of permissible decisions.'" United States v. Bonilla ,
A 37-month sentence for Yilmaz's stalking of the Victim falls well within the range of permissible sentences. See United States v. Lee ,
CONCLUSION
For the reasons set forth above, the district court's judgment is AFFIRMED