United States v. Deluca

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                              _________________________

No. 93-1773

UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                     VITO DeLUCA,

                                Defendant, Appellant.

                              _________________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Mark L. Wolf, U.S. District Judge]
                                           ___________________

                              _________________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________

                          Selya and Boudin, Circuit Judges.
                                            ______________

                              _________________________

               Richard H. Wynn for appellant.
               _______________
               Brian  T. Kelly, Assistant United States Attorney, with whom
               _______________
          A. John  Pappalardo, United  States Attorney, was  on brief,  for
          ___________________
          appellee.

                              _________________________

                                  February 25, 1994

                              _________________________

SELYA, Circuit Judge.  This is another in the long line
                    SELYA, Circuit Judge.
                           _____________

          of sentencing  appeals  that  march  beneath the  banner  of  the

          federal  sentencing guidelines.1    The  appeal  poses  only  one

          question:  Does a state conviction for extortion, under a statute

          that defines  extortion more  broadly than  in  terms of  threats

          against  a  person,  qualify  as  a  "crime  of  violence,"  and,

          therefore, as a  sentence enhancing factor within the  purview of

          U.S.S.G.   2K2.1(a)  (a  guideline which  provides  for  a higher

          offense  level,   and,  consequently,   greater  punishment,   if

          specified  offenses  are  committed  by a  person  with  a  prior

          criminal record that includes at least one "crime  of violence")?

          Like the district court, we answer this query in the affirmative.

                                          I
                                          I

                    The facts relevant to  this appeal are not in  dispute.

          On February 12, 1992, federal  agents armed with a warrant issued

          as part of an ongoing  mail fraud investigation searched the home

          of defendant-appellant  Vito DeLuca and  discovered approximately

          five hundred  rounds of  live ammunition.   A federal  grand jury

          thereafter indicted  appellant on  a charge of  being a  felon in

          possession  of  ammunition,  see 18  U.S.C.     922(g)(1) (1990).
                                       ___

          Appellant pled guilty to this charge on April 20, 1993.

                    At  sentencing, the  district  court embraced  U.S.S.G.
                              
          ____________________

               1In  this instance, the  district court imposed  sentence on
          June  23,  1993.    Hence,  the  November  1992  edition  of  the
          guidelines applies.  See United States v. Lilly,  _ F.3d ___, ___
                               ___ _____________    _____
          n.2 (1st Cir. 1994) [No. 93-1577, slip op. at 3  n.2] (explaining
          that  "[a] sentencing court customarily applies the guidelines in
          effect on the date of  sentencing"); United States v. Harotunian,
                                               _____________    __________
          920 F.2d 1040, 1041-42 (1st Cir. 1990) (same).

                                          2

2K2.1, the guideline covering unlawful possession of ammunition.

          That guideline  dictates a higher  base offense level (BOL)  if a

          defendant  has prior felony convictions  for "a crime of violence

          or a controlled  substance offense."  Id.    2K2.1(a).   In 1977,
                                                ___

          DeLuca had  been convicted of  extortion in a Rhode  Island state

          court.  To ascertain whether this  conviction constituted a crime

          of   violence,  the   district  court  followed   the  Sentencing

          Commission's internal cross-reference   U.S.S.G.  2K2.1, comment.

          (n.5) refers  the reader to  U.S.S.G.  4B1.2 for a  definition of

          "crime  of violence"    and  determined  that DeLuca's  extortion

          conviction   came   within  the   indicated  definition.     This

          determination   resulted   in   a  BOL   of   20,   see  U.S.S.G.
                                                              ___

           2K2.1(a)(4)(A) (providing  for an  enhanced BOL  if a  defendant

          "has one prior  felony conviction of . . . a crime of violence"),

          rather than 12, see id.  2K2.1(a)(7), and substantially increased
                          ___ ___

          the  guideline  sentencing  range applicable  to  DeLuca's  case.

          Since   the  district  court  sentenced  within  the  range,  the

          determination  adversely  affected  appellant's  sentence.   This

          appeal ensued.

                                          II
                                          II

                    In prosecuting  his  appeal,  DeLuca  presents  a  very

          narrow issue.  He acknowledges that the imposition of sentence is

          governed by  U.S.S.G.  2K2.1, and, through  cross-referencing, by

          the definitions contained in U.S.S.G.  4B1.2.  He also admits the

          authenticity  of the prior extortion conviction.  He nevertheless

          challenges the classification of that prior conviction as a crime

3

of violence, saying that the  language of the state statute under

          which he was charged, R.I. Gen.  Laws   11-42-2, places his prior

          conviction outside the scope of the applicable definition.2

                    When, as now, an appeal raises a  purely legal question

          involving the proper interpretation of the sentencing guidelines,

          appellate review is plenary.  See United States v. De Jesus,  984
                                        ___ _____________    ________

          F.2d 21, 22 n.4 (1st Cir. 1993); United States v. Fiore, 983 F.2d
                                           _____________    _____

          1, 2  (1st  Cir. 1992),  cert. denied,  113 S.  Ct. 1830  (1993);
                                   _____ ______

          United States v. St. Cyr, 977 F.2d 698, 701 (1st Cir. 1992).
          _____________    _______

                                         III
                                         III

                    A  crime of  violence  is defined  for purposes  of the

          sentencing guidelines in the following manner:

                    The  term  "crime   of  violence"  means  any
                    offense under federal or state law punishable
                    by imprisonment for a term exceeding one year
                    that  

                    (i)  has  as  an  element the  use,  attempted  use, or
                         threatened  use  of  physical  force  against  the
                              
          ____________________

               2The state statute provides in pertinent part:

                    Whoever, verbally  or by a written or printed
                    communication,   maliciously   threatens   to
                    accuse another of a crime or  offense or by a
                    verbal or  written communication  maliciously
                    threatens   any   injury   to   the   person,
                    reputation, property  or financial  condition
                    of another, or  threatens to engage in  other
                    criminal  conduct  with   intent  thereby  to
                    extort  money   or  any   unlawful  pecuniary
                    advantage,  or  with  intent  to  compel  any
                    person to do any act  against his will, or to
                    prohibit any person from  carrying out a duty
                    imposed by law shall be punished [as provided
                    by law].

          R.I. Gen.  Laws   11-42-2.   It has  not changed in  any material
          respect since DeLuca was charged and convicted.

                                          4

person of another, or

                    (ii) is burglary  of a  dwelling, arson,  or extortion,
                         involves use of  explosives, or otherwise involves
                         conduct that presents a  serious potential risk of
                         physical injury to another.

          U.S.S.G.  4B1.2(1).  "A formal categorical approach   an approach

          that looks to a prior  offense's statutory provenance rather than

          to  the actual  facts   is  the method of  choice for determining

          whether a felony  constitutes a targeted crime within the meaning

          of this definition."  De Jesus, 984 F.2d at 23; accord Fiore, 983
                                ________                  ______ _____

          F.2d at 3;  see also Taylor v.  United States, 495 U.S.  575, 600
                      ___ ____ ______     _____________

          (1990) (adopting  categorical approach  for similar  definitional

          inquiry under the Armed Career  Criminal Act).  Thus, rather than

          investigating  the  facts  and   circumstances  of  each  earlier

          conviction,  an inquiring court,  in the usual  situation,3 looks

          exclusively to the crime as the statute of conviction defined it;

          or, put  another  way,  the  court examines  only  the  statutory

          formulation of the  predicate crime in order to ascertain whether

          that  crime is  a crime of  violence for purposes  of the federal

          sentencing guidelines.

                    Appellant accepts this body of  law.  But he strives to

          persuade us that,  taking the required categorical  approach, his

          prior  conviction cannot  be called  a  crime of  violence.   The
                              
          ____________________

               3To  be sure,  there are  certain  limited circumstances  in
          which  some investigation beyond identifying the formal nature of
          the  charge may  be  warranted.   See  Taylor,  495  U.S. at  602
                                            ___  ______
          (outlining  circumstances   in  which   indictment  and-or   jury
          instructions  may be  pertinent); De  Jesus, 984  F.2d at  23 n.5
                                            _________
          (same).   Here, however, we have been given nothing more than the
          record of  conviction, and neither  side suggests that  we should
          try to peer beyond it.

                                          5

linchpin of this theory is the suggestion that all extortions are

          not equal.  Even though the guideline identifies "extortion" as a

          crime  of violence,  see U.S.S.G.   4B1.2(1)(ii),  that term,  in
                               ___

          appellant's  view,  only describes  crimes  that  involve threats

          against the person of another.   Because the Rhode Island statute

          sweeps  more  broadly    it encompasses,  in addition  to threats

          against  the person, threats against the "reputation, property or

          financial condition of another,"  R.I. Gen. Laws    11-42-2   his

          Rhode  Island  crime  could  have  involved  a  threat,  say,  of

          defamation, or  economic harm.   On this  view of  the sentencing

          universe, the government, by leaving  the nature of the threat up

          in the air, see supra note 3,  failed to prove that appellant had
                      ___ _____

          been convicted of a crime of violence.

                    Although we give appellant high marks for ingenuity, we

          are not persuaded.  We  have four principal reasons for rejecting

          his thesis.

                    First:   The relevant guideline  provision specifically
                    First:
                    _____

          mentions extortion and, in the process, neither says nor  implies

          that extortion, to  be cognizable, must involve a  threat of harm

          to the person of another.  This presents a formidable obstacle to

          appellant's  argument, for the wording  of the guideline tells us

          unequivocally  that  the   Sentencing  Commission  believed  that

          extortion,  by its  nature, should  be classified  as a  crime of
                      __ ___  ______

          violence.    A  defendant who  seeks  to  exclude a  specifically

          enumerated  offense from the sweep of section 4B1.2 must shoulder

          a heavy burden of persuasion.

6

Appellant  seeks   to  carry  this  weighty  burden  by

          positing that  the term  "extortion," as it  is used  in U.S.S.G.

           4B1.2(1)(ii),   is  federal  in  character  and  has  a  single,

          invariant meaning, rather than a meaning that  changes from state

          to  state.   We agree.   See Taylor,  495 U.S. at  590-92 (ruling
                                   ___ ______

          that, for  purposes of the  Armed Career Criminal Act,  the place

          where  the  offense  was committed  cannot  be  the determinative

          factor  in identifying  predicate  offenses);  Dickerson  v.  New
                                                         _________      ___

          Banner Inst., Inc., 460 U.S. 103, 119-120 (1983) (explaining that
          __________________

          federal laws should not be construed in such a manner as  to make

          their   application  depend  on  state  law,  absent  some  plain

          legislative directive to that effect); United States v. Nardello,
                                                 _____________    ________

          393 U.S. 286, 293-94 (1969)  (recommending a similar approach  in

          extortion cases); United States v.  Aymelek, 926 F.2d 64, 71 (1st
                            _____________     _______

          Cir. 1991) (rejecting state-law  characterization of prior  state

          conviction for  purposes of  the federal  sentencing guidelines);

          United  States v.  Unger, 915  F.2d 759,  762-63 (1st  Cir. 1990)
          ______________     _____

          (rejecting "the idea that state law determines whether an offense

          runs afoul of [U.S.S.G.] section 4A1.2(c)(2)"), cert. denied, 498
                                                          _____ ______

          U.S.  1104 (1991).   Nonetheless,  we  disagree with  appellant's

          related assertion  that extortion,  as that word  is used  in the

          guideline, is limited  to the precise definitional  parameters of

          the Hobbs Act, 18 U.S.C.   1951 (1988).4
                              
          ____________________

               4Appellant  hawks the notion  that the relevant  language of
          the Hobbs Act, criminalizing "the obtaining of property . .  . by
          wrongful use of actual or threatened force, violence, or fear, or
          under color of official right," 18  U.S.C.   1951, is limited  to
          threats or  violence against  the person of  another.   The Ninth

                                          7

We  can envision  no sound  reason for  looking to  the

          Hobbs  Act to  borrow a  definition of  a fairly  well understood

          term.    In  the  first  place, terms  used  within  the  federal

          sentencing  guidelines  and   not  specifically  defined  therein

          generally should be given their  common usage.  See, e.g., United
                                                          ___  ____  ______

          States v. Butler, 988 F.2d 537, 542 (5th Cir.), cert. denied, 114
          ______    ______                                _____ ______

          S. Ct. 413 (1993); United States v. Jones, 979 F.2d 317,  320 (3d
                             _____________    _____

          Cir. 1992); United States v.  Abney, 756 F. Supp. 310, 313  (E.D.
                      _____________     _____

          Ky. 1990).  Taking this approach, it is clear beyond peradventure

          that a conviction under R.I. Gen. Laws   11-42-2, which can aptly

          be  described as a garden-variety extortion statute, comes within

          the reach of U.S.S.G.  4B1.2(1)(ii).

                    In the  second  place, even  if resort  to an  external

          source  is  desirable  in  order  to  explicate  the  meaning  of

          "extortion," we  think that,  rather than the  Hobbs Act    which

          features extortion in  a special, circumscribed sense    a better

          point  of reference  would be  section 223.4  of the  Model Penal

          Code.5  This  definition is widely  accepted, see, e.g.,  Black's
                                                        ___  ____
                              
          ____________________

          Circuit seems  to have embraced this idea.   See United States v.
                                                       ___ _____________
          Anderson, 989 F.2d 310, 312-13 (9th Cir. 1993).
          ________

               5The  Model  Penal Code  defines  extortion as  purposefully
          obtaining the property of another by threatening to:

                    (1) inflict bodily injury on anyone or commit
                    any other criminal offense; or
                    (2) accuse anyone of a criminal offense; or
                    (3) expose any secret  tending to subject any
                    person to hatred, contempt or ridicule, or to
                    impair his credit or business repute; or
                    (4) take or withhold  action as an  official,
                    or cause  an  official to  take  or  withhold
                    action; or

                                          8

Law Dictionary  585 (6th  ed. 1990), and  is consistent  with the

          tenor of the  most closely analogous federal  crime, extortionate

          extension of credit,  18 U.S.C.   891 (1988) (proscribing threats

          of harm to "the person,  reputation, or property of any person");

          see also  18 U.S.C.    876 (1988)  (proscribing, inter  alia, the
          ___ ____                                         _____  ____

          mailing of threatening  communications for extortionate  purposes

          "to injure  the property  or reputation of  the addressee,  or of

          another").   Hence, defining  extortion in  this commonsense  way

          also   makes  it   clear  that   section  4B1.2(1)(ii)   subsumes

          appellant's prior conviction.

                    Second:  Even if we were  to look to the Hobbs Act,  as
                    Second:
                    ______

          appellant importunes,  we believe  the "fear"  element under  the

          Hobbs  Act can  be satisfied  by  threats other  than threats  of

          bodily harm, say, by putting the victim in fear of economic harm.

          See, e.g., United States v. Salerno, 868 F.2d 524, 531 (2d Cir.),
          ___  ____  _____________    _______

          cert. denied, 493 U.S. 811 (1989); United States v. Hathaway, 534
          _____ ______                       _____________    ________

          F.2d 386, 393-94  (1st Cir.), cert. denied, 429  U.S. 819 (1976);
                                        _____ ______

          United States v. DeMet,  486 F.2d 816, 819 (7th Cir. 1973), cert.
          _____________    _____                                      _____

          denied, 416 U.S. 969 (1974); United States v. Addonizio, 451 F.2d
          ______                       _____________    _________
                              
          ____________________

                    (5) bring about or continue a strike, boycott
                    or other collective unofficial action, if the
                    property is not demanded or  received for the
                    benefit of  the group  in whose interest  the
                    actor purports to act; or
                    (6)   testify  or   provide  information   or
                    withhold   testimony   or   information  with
                    respect to another's legal  claim or defense;
                    or
                    (7) inflict any  other harm  which would  not
                    benefit the actor.

          Model Penal Code   223.4 (1980).

                                          9

49, 72 (3d Cir. 1971), cert. denied, 405 U.S. 936 (1972).   Thus,
                                 _____ ______

          although the Rhode Island extortion statute does not  track, word

          for  word, the  Hobbs Act  definition of  extortion, the  two are

          sufficiently similar  both in  import and  application to  defuse

          appellant's argument.

                    Third:    We have  often  said that,  "[a]ll  words and
                    Third:
                    _____

          provisions of statutes are intended to have meaning and are to be

          given effect, and  no construction should be  adopted which would

          render  statutory  words  or phrases  meaningless,  redundant  or

          superfluous."   Lamore v.  Ives, 977 F.2d  713, 716-17  (1st Cir.
                          ______     ____

          1992); accord United States v. Ven-Fuel, Inc., 758 F.2d 741, 751-
                 ______ _____________    ______________

          52 (1st  Cir. 1985).    We think  that  this principle  is  fully

          applicable to the sentencing guidelines, which, although they are

          not statutes, are  to be construed in much the same fashion.  See
                                                                        ___

          United States v.  Shaw, 979 F.2d 41,  45 (5th Cir.  1992); United
          _____________     ____                                     ______

          States v. McGann, 960 F.2d 846, 847 (9th Cir.), cert. denied, 113
          ______    ______                                _____ ______

          S. Ct. 276  (1992); United States v. Castellanos,  904 F.2d 1490,
                              _____________    ___________

          1497 (11th Cir. 1990).  Appellant's spin on the word "extortion,"

          as that  word is used  in section 4B1.2(1)(ii), would  reduce the

          reference to mere  surplusage.  After all, a  different clause in

          the same  guideline makes a  prior conviction for any  crime that
                                                            ___

          "has  as an element  the . .  . threatened use  of physical force

          against the  person of  another" a crime  of violence.   U.S.S.G.

           4B1.2(1)(i).  Thus,  were extortion defined  in the cramped  way

          that appellant touts, the Sentencing Commission's inclusion of it

          as a  specially enumerated offense  serves no purpose.   In other

10

words, if extortion is intended  to refer only to threats against

          a person, it is totally redundant.

                    Fourth:  We believe that appellant's reliance on United
                    Fourth:
                    ______                                           ______

          States v.  Anderson, 989  F.2d 310 (9th  Cir. 1993),  is mislaid.
          ______     ________

          Anderson  involved  a  sentence imposed  under  the  Armed Career
          ________

          Criminal  Act, 18  U.S.C.    924(e) (ACCA).   The  Anderson court
                                                             ________

          relied  heavily on the fact that the defendant's prior conviction

          was for an  attempt, not a completed act of extortion, see id. at
                                                                 ___ ___

          313, and found that  fact sufficient to remove the  case from the

          integument  of the  ACCA, see  id.   Here, however,  it does  not
                                    ___  ___

          matter  whether one  calls  the crime  of which  appellant stands

          convicted  "extortion"  or  "attempted  extortion."    Regardless

          whether  an  attempt  counts  as  a  completed offense  for  ACCA

          purposes,  the  sentencing guidelines  are  transpicuous on  this

          point:  "The terms `crime of  violence' and `controlled substance

          offense' include the offenses of aiding and abetting, conspiring,

          and  attempting to  commit  such  offenses,"  U.S.S.G.     4B1.2,
               __________

          comment. (n.1) (emphasis  supplied).  Because "commentary  in the

          Guidelines  Manual that  interprets or  explains  a guideline  is

          authoritative  unless it violates  the Constitution or  a federal

          statute, or is  inconsistent with, or a plainly erroneous reading

          of, that  guideline," Stinson v.  United States 113 S.  Ct. 1913,
                                _______     _____________

          1915 (1993); see also United States v. Zapata, 1 F.3d 46, 47 (1st
                       ___ ____ _____________    ______

          Cir. 1993), we cannot follow Anderson in this case.6
                                       ________
                              
          ____________________

               6While precedent under the ACCA is often useful in resolving
          questions anent  the career  offender guideline,  see Fiore,  983
                                                            ___ _____
          F.2d at 3; United States v. Bell, 966 F.2d 703, 705-06  (1st Cir.
                     _____________    ____

                                          11

IV
                                          IV

                    We need go no further.   Concluding, as we do, that the

          lower  court  correctly  categorized  appellant's 1977  extortion

          conviction   as  a   "crime  of   violence"   under  U.S.S.G.    

          2K2.1(a)(4)(A), we reject the appeal.

Affirmed.
          Affirmed.
          ________

____________________

          1992),  we  find  Anderson unhelpful  for  the  reasons explained
                            ________
          above.   And although  Anderson's holding appears  problematic on
                                 ________
          its own facts, we need not (and  do not) express an opinion as to
          its correctness.

                                          12