United States v. Blaze

78 F. App'x 60
Court of Appeals for the Tenth Circuit·Decided October 9, 2003·No. No. 01-1370·Published·Cited by 2 cases

Opinion

ORDER AND JUDGMENT*

EBEL, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. RApp. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Defendant-appellant Johnny Blaze appeals the district court’s decision denying him 28 U.S.C. § 2255 relief. In a previous order and judgment, this court denied Blaze a certificate of appealability (COA) on three ineffective-assistance claims challenging his federal racketeering and extortion convictions and sentences. See Order & Judgment, No. 01-1370, 2002 WL 1644800, 43 Fed.Appx. 258 (10th Cir. July [61]*6124, 2002). We subsequently vacated that decision, however, and granted Blaze’s petition for rehearing, as well as COA, on his claim alleging that his trial attorney was constitutionally ineffective for persuading the district court to dismiss an 18 U.S.C. § 924(c) count charging Blaze with using a gun to commit a crime of violence. In granting Blaze rehearing on this claim, we were concerned that the counterintuitive situation may have occurred in which defense counsel’s success in getting the § 924(c) charge dismissed actually resulted in a lengthier sentence because it permitted the district court then to enhance Blaze’s offense level by six, under the applicable sentencing guidelines’ weapons enhancement, USSG § 2B3.2(b)(3)(A)(ii).1 Blaze would not have been subject to this weapons enhancement had the jury convicted him under 18 U.S.C. § 924(c). See USSG § 2K2.4(a) & nn. 1, 2.

When we granted rehearing, this court also appointed Steven Sklaver as counsel to represent Blaze, who had previously been pursuing his § 2255 motion pro se. Appointed counsel now, candidly and through good workmanship, concedes that Blaze’s sentence would have been longer with the guidelines’ weapons enhancement, rather than under 18 U.S.C. § 924(c), only if trial counsel could also have eliminated sentencing enhancements both for making a threat of death or bodily harm, USSG § 2B3.2(b)(l), and for involving a vulnerable victim, id., § 3Al.l(b). See, e.g., Aplt. Reh’g Br. at 20-21; Aplt. Reh’g Reply Br. at 11-12. We agree with defense counsel’s calculations.

The jury convicted Blaze of racketeering and conspiring to, and interfering with, interstate commerce by threats of violence by extortion and robbery, see 18 U.S.C. §§ 2, 1951(a), 1952(a)(2), and making threatening interstate telephone calls with the intent to extort, see id., § 875(b). In calculating Blaze’s sentence, the district court grouped his convictions into five separate categories, combining the racketeering and interference-with-commerce convictions into one category, and the seventeen threatening-telephone-call convictions into four other groups, based upon the dates Blaze made those calls. See generally USSG §§ 3D1.1, 3D1.2 (setting forth rules for grouping multiple convictions). Neither party challenges the district court’s grouping, nor the fact that the offense level for the telephone-count groups was twenty-six. Because the racketeering group had a much greater offense level than the telephone-count groups, those threatening-telephone-call convictions essentially dropped out of the sentencing calculation, and the district court based Blaze’s sentence instead solely on the racketeering and interference-with-eommerce convictions. See id., § 3D1.4(c).

Those racketeering and extortion convictions started with a base offense level of eighteen. See id., § 2B3.2(a). The district court then further enhanced that base offense level by two because Blaze made an express or implied threat of death or bodily harm, see id., § 2B3.2(b)(l); two levels because the offenses involved between $50,000 and $250,000, see id., § 2B3.2(b)(2) (referencing id., § 2B3.1(b)(6)); six levels for using a firearm, see id., § 2B3.2(b)(3)(A)(ii); four lev[62] els because Blaze abducted an individual during the course of these criminal events, see id., § 2B3.2(b)(5)(A); two levels because these offenses involved a vulnerable victim, nine-year-old Vincent Scotti, see id., § 3Al.l(b); and four more levels because Blaze was a leader and organizer of this criminal conduct, see id., § 3B1.1. Blaze’s resulting total offense level, then, was thirty-eight. Combined with his criminal history category of I, the resulting sentencing range was 235 to 293 months, see USSG Ch. 5, Pt. A, which easily accommodated the district court’s sentencing Blaze to the statutory maximum 240 months’ imprisonment, see 18 U.S.C. § 1952(a)(3)(B).

Had the jury convicted Blaze under 18 U.S.C. § 924(c) for using a firearm to commit a crime of violence, the sentencing court could not have enhanced Blaze’s racketeering and extortion offense level by six for using a firearm. See USSG § 2K2.4(a) & nn. 1, 2. That would have left his offense level for the first group of offenses at thirty-two. However, this would also have reduced the discrepancy between the offense level for this first group of racketeering offenses and the offense levels for the other four groups involving the threatening telephone calls. Therefore, the four threatening-telephone-call groups would have reentered the sentencing calculation, adding three more levels to Blaze’s total offense level. See id. § 3D1.4. Blaze’s total offense level, then, with an 18 U.S.C. § 924(c) conviction, would have been thirty-five, resulting in a sentencing range of 168-210 months. See USSG Ch. 5, Pt. A. In addition, however, the 18 U.S.C. § 924(c) conviction would have required an additional five-year, or sixty-month,2 consecutive sentence tacked on to that guideline range. See USSG § 2K2.4(a). The actual sentencing range, therefore, with the 18 U.S.C. § 924(c) conviction, would have been 228-270 months, see USSG Ch. 5, Pt. A, which again would have permitted the district court to impose the statutory maximum 240-month sentence.

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