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    United States v. Jones, 1st Cir. (1993)

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    The court affirmed the sentence imposed on Eric Jones for extortion. It held that the sentencing guideline for extortion, U.S.S.G. 2B3.2, does not incorporate threats of bodily harm into the base offense level. Therefore, applying a two-level enhancement under 2B3.2(b)(1) for such threats did not constitute impermissible double counting. The court also found that Jones's statements on recorded phone calls reasonably implied threats of bodily harm against the victims.

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    United States v. Jones, 1st Cir. (1993)

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    The court affirmed the sentence imposed on Eric Jones for extortion. It held that the sentencing guideline for extortion, U.S.S.G. 2B3.2, does not incorporate threats of bodily harm into the base offense level. Therefore, applying a two-level enhancement under 2B3.2(b)(1) for such threats did not constitute impermissible double counting. The court also found that Jones's statements on recorded phone calls reasonably implied threats of bodily harm against the victims.

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    Filed: 1993-07-07 Precedential Status: Precedential Docket: 93-1189

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    The court affirmed the sentence imposed on Eric Jones for extortion. It held that the sentencing guideline for extortion, U.S.S.G. 2B3.2, does not incorporate threats of bodily harm into the base offense level. Therefore, applying a two-level enhancement under 2B3.2(b)(1) for such threats did not constitute impermissible double counting. The court also found that Jones's statements on recorded phone calls reasonably implied threats of bodily harm against the victims.

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    United States v. Jones, 1st Cir. (1993)

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    Scribd Government Docs
    The court affirmed the sentence imposed on Eric Jones for extortion. It held that the sentencing guideline for extortion, U.S.S.G. 2B3.2, does not incorporate threats of bodily harm into the base offense level. Therefore, applying a two-level enhancement under 2B3.2(b)(1) for such threats did not constitute impermissible double counting. The court also found that Jones's statements on recorded phone calls reasonably implied threats of bodily harm against the victims.

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    of 13

    USCA1 Opinion

    UNITED STATES COURT OF APPEALS


    FOR THE FIRST CIRCUIT
    _________________________
    No. 93-1189
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    ERIC JONES,
    Defendant, Appellant.
    _________________________
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF NEW HAMPSHIRE
    [Hon. Joseph A. DiClerico, U.S. District Judge]
    ___________________
    _________________________
    Before
    Breyer, Chief Judge,
    ___________
    Selya and Boudin, Circuit Judges.
    ______________
    _________________________
    Stanley W. Norkunas on brief for appellant.
    ___________________
    Peter E. Papps, United States Attorney,

    on

    motion

    for

    ________________
    summary disposition, for appellee.
    _________________________
    July 7, 1993
    _________________________

    SELYA,
    SELYA,

    Circuit Judge.
    Circuit Judge.
    _____________

    count of extortion in

    Having

    pleaded guilty

    violation of 18 U.S.C.

    to one

    1951, defendant-

    appellant Eric Jones now appeals from the imposition of sentence.


    We affirm.
    I
    I
    We
    1991,

    appellant

    acquaintance,
    loan.

    succinctly summarize
    sought

    John Halle.

    When Cyr agreed,

    the relevant

    $5,000

    Halle

    loan

    facts.

    from

    asked Richard Cyr

    In May

    business

    to make the

    the parties consummated the transaction.

    By its terms, the loan was to be repaid in full, with interest of


    $2,500, within seven days.

    Although appellant provided security

    in the form of a United


    of

    $10,000, he

    contacted

    States treasury bond having a face value

    failed to repay

    a brokerage firm

    the loan.

    to arrange for

    When

    Halle and Cyr

    a sale

    of the bond,

    they discovered that it had previously been stolen.


    The Federal

    Bureau of

    Investigation (FBI)

    inquiry into the theft.

    Halle and Cyr cooperated.

    of

    the

    its

    investigation,

    recorded

    certain

    appellant.
    appellant

    telephone

    attempted to

    if they did

    stated to
    that

    In the course
    consent,

    between

    retrieve

    the bond.

    As part

    bad things would happen to

    Halle that the

    Halle

    tape-

    and

    which occurred in December 1991,

    not return the

    bond.

    bond had to

    afternoon or else "someone"

    some point during the

    Halle's

    conversations

    During these calls,

    effort, he implied that


    Cyr

    FBI, with

    mounted an

    At

    this

    Halle and/or

    one point, appellant

    be returned by

    would be on

    next few days.

    of

    Appellant

    5:00 p.m.

    Cyr's doorstep at

    told Halle that

    he had

    better leave

    town

    for this

    suggested that Halle warn Cyr.


    II
    II

    period of

    time.

    He

    also

    The

    sentencing guideline

    offense is U.S.S.G.
    the

    base offense

    sentencing, the
    granted

    that applies

    2B3.2 (Nov. 1991).


    level is

    18.

    two-level

    credit

    3E1.1,

    two-level

    U.S.S.G.

    increase

    under

    sentencing
    history
    sentence.

    or

    range of

    category

    I)

    and

    At

    adjustments.

    It

    acceptance

    of

    for

    2B3.2(b)(1)

    The

    court

    months (offense
    imposed

    ordered a

    because

    the

    or implied threat of death,

    kidnapping."1
    27-33

    2B3.2(a).

    but simultaneously

    offense conduct involved "an express


    injury,

    this guideline,

    See U.S.S.G.
    ___

    responsibility, U.S.S.G.

    bodily

    Under

    district court made offsetting

    appellant

    to appellant's

    calculated

    level 18;

    30-month

    criminal

    incarcerative

    This appeal ensued.


    III
    III

    On appeal, Jones challenges only the two-level increase


    awarded pursuant to section 2B3.2(b)(1).
    that the

    district court

    characteristic

    (threat

    erred
    of

    in applying

    bodily

    adjustment in circumstances where


    already

    His principal claim is

    factored this same conduct

    harm) to

    a specific
    effect

    an

    offense

    upward

    the Sentencing Commission

    had

    into the base offense level.

    ____________________
    1Section 2B3.2(b)(1)

    is relatively new.

    See U.S.S.G. App.


    ___
    C, amend. 366 at 186 (Nov. 1991). Prior to this amendment, the
    extortion guideline did not provide an enhancement for threats of
    bodily harm and the like.
    Presumably because of its recent
    origin,
    there is
    no
    appreciable caselaw
    under
    section
    2B3.2(b)(1).
    3

    To support this contention, appellant points to the definition of


    extortion contained in 18 U.S.C.

    1951(b)(2)

    "the obtaining of

    property from another, with his consent, induced by


    of actual or threatened
    asseverates that,
    harm, which
    that,

    force, violence [or] fear

    under this definition, a

    results in "fear,"

    because the

    wrongful use

    caption of

    "extortion" by "threat"

    . . . ."

    "threat" of physical

    is an element of
    U.S.S.G.

    the crime; and

    2B3.2 also

    of injury, the base offense

    by analogy, incorporate the

    He

    refers to

    level must,

    element of threatened bodily injury.

    We disagree.
    Although
    extortion,

    minations

    threat

    of

    may

    bodily

    often
    harm

    accompany
    is

    an

    neither an

    characteristic nor a necessary concomitant of the crime.


    18 U.S.C.

    1951(b)(2) leaves the dimensions

    threat relatively open-ended.


    conviction criminalizes

    That

    of

    inherent

    Rather,

    of a fear-producing

    is to say,

    a wide array of

    act

    the statute

    of

    fear-producing threats,

    e.g., threats to destroy valuable business records, McLaughlin v.


    ____
    __________
    Anderson,
    ________

    962

    F.2d 187

    (2d Cir.

    1992),

    or to

    county

    contracts, United States v. Stodola,


    ______________
    _______

    Cir.),

    cert. denied,

    113

    S. Ct.

    104

    yank lucrative

    953 F.2d

    (1992), in

    266 (7th

    addition

    to

    _____ ______
    threats of physical harm.

    Moreover, unlike appellant, we do not think it seems at


    all

    unusual

    that

    the

    Sentencing Commission,

    charged

    with

    different function than the Congress, would choose to distinguish


    among

    various types

    of extortion

    accordingly, seek to punish

    for sentencing

    purposes and,

    extortionists who employ "express or


    4

    implied threat[s]
    U.S.S.G.
    callous,

    of death,

    bodily injury, or

    2B3.2(b)(1), with
    practitioners

    greater severity than

    of the

    same crime.

    slightest sign that the Commission had


    a threat

    of bodily

    harm to

    the

    Commission

    encompass

    all acts
    ___

    There is

    person into

    the

    general

    of extortion,

    not the

    the base

    to the offense of conviction.

    the application notes make

    designed

    other, less

    specifically incorporated

    the victim's

    offense level generally applicable


    To the exact contrary,

    kidnapping," see
    ___

    guideline

    not just

    manifest that
    provision

    those in

    victim's life and limb are placed at risk:


    This guideline applies if there was any
    threat, express or implied, that reasonably

    to

    which the

    could be interpreted as one to injure a


    person or physically damage property, or any
    comparably serious threat, such as to drive
    an enterprise out of business.
    U.S.S.G.
    Penn,
    ____

    2B3.2,

    966 F.2d

    application

    of

    comment. (n.2); see,


    ___

    55, 57
    2B3.2

    (2d Cir.

    e.g., United States v.


    ____ ______________

    1992) (per

    in case

    where

    curiam) (upholding

    defendant, among

    other

    things, "sought to generate fear through . . . threat of economic


    injury").
    Having

    swept

    broadly

    in

    constructing

    guideline, the Commission

    subsequently designed the


    ____________

    provision specifically to

    target those who made a

    worse by using
    injury,
    U.S.S.G.

    or

    "an express

    kidnapping"
    2B3.2(b)(1).

    added later, and, thus,


    furnishes

    or implied threat

    as
    The

    tool

    of

    very fact

    the

    the

    general

    enhancement

    bad situation

    of death,

    bodily

    extortion

    trade.

    that the

    enhancer was

    superimposed upon the general guideline,

    potent evidence that the

    Commission did not intend to

    implement the analogy which appellant struggles to draw.


    Appellant's reliance on United States
    _____________

    v. Plaza-Garcia,
    ____________

    914

    F.2d 345 (1st

    Cir. 1990), is plainly

    Garcia, the
    ______

    defendant

    exploiting a

    minor in

    applicable
    for

    recommended,

    offense
    and

    because

    the
    the

    commentary to U.S.S.G.

    the

    violation of

    level

    vulnerable" within the

    level

    guilty to

    sentencing guideline,

    base

    increase

    pled

    of

    misplaced.

    In Plaza______

    count

    sexually

    one

    18 U.S.C.

    U.S.S.G.
    25.

    2251(a).

    The

    presentence

    judge

    imposed,

    victim's

    youth

    made

    3A1.1

    The

    2G2.1(a), provided

    sentencing

    meaning of

    of

    U.S.S.G.

    him

    report

    two-level

    "unusually

    3A1.1.

    But,

    the

    stated specifically that the two-

    adjustment for vulnerability due to age does not apply "if


    offense

    U.S.S.G.

    guideline specifically

    3A1.1, comment. (n.2).

    that, because

    the guideline for

    incorporates

    Hence,

    this factor."

    we reversed, reasoning

    sexual exploitation of

    a minor

    "specifically incorporates the factor of age," an increase of two


    levels would constitute
    Garcia,
    ______

    914 F.2d

    at

    impermissible double
    347.

    Here,

    in

    counting.

    contrast,

    the

    Plaza______

    general

    guideline for extortion, U.S.S.G. 2B3.2(a), does not specifically

    incorporate the relevant factor (threatened bodily harm) into the


    base offense level.
    We will not paint

    the lily.

    Mindful, as we

    are, that

    courts should, for the most part, apply the guidelines as written
    and give

    effect to

    the interpretive commentary

    and application

    notes, see, e.g., Stinson v. United States, 113 S. Ct. 1913, 1915
    ___ ____ _______
    _____________
    (1993);

    United States
    _____________

    v. Weston,
    ______

    960 F.2d

    212, 219

    (1st Cir.

    1992),

    we conclude,

    2B3.2(a)

    does not

    harm into
    the

    without serious

    question, that

    specifically incorporate

    the base offense

    district court

    did not

    a threat

    level for extortion


    engage in

    U.S.S.G.

    of bodily

    and, therefore,

    double counting

    when it

    ordered the two-level increase.2


    IV
    IV
    Appellant
    maintains

    has

    second

    arrow

    in his

    quiver.

    He

    that his conduct did not fall within the compendium of

    aggravating

    factors

    represented

    by

    characteristics listed in U.S.S.G.


    will not wash.

    the

    specific

    2B3.2(b)(1).

    The district court

    offense

    This argument

    made its finding that

    Jones

    threatened to inflict bodily harm on Halle and Cyr largely on the


    basis

    of

    words

    spoken

    by

    posterity on magnetic tape.

    Jones

    himself

    and

    preserved

    To the extent, if at all,

    for

    that the

    threats were inexplicit

    and we

    the sentencing court was

    nonetheless entitled to draw reasonable

    inferences

    any

    and

    extortionist.

    resolve

    See U.S.S.G.
    ___

    do not suggest that they were

    possible

    ambiguity

    against

    the

    2B3.2, comment. (n.2) ("Even if [a]

    threat does

    not in

    itself

    imply violence,

    the possibility

    of

    violence or serious adverse consequences may be inferred from the


    ____________________

    2In light of this ruling, we need not address whether double


    counting, had it occurred, would have affected the lawfulness of
    the sentence. See generally United States v. Newman, 982 F.2d
    ___ _________ _____________
    ______
    665, 672-73 (1st Cir. 1992) (discussing problem and collecting
    cases); compare, e.g., United States v. Williams, 954 F.2d 204,
    _______
    ____ _____________
    ________
    206 (4th Cir. 1992) (approving double counting on the basis that
    the sentencing guidelines must be "applied as written") with,
    ____
    e.g., United States v. Hudson, 972 F.2d 504, 507 (2d Cir. 1992)
    ____ _____________
    ______
    (refusing to accept blanket proposition that "double counting is
    always permissible, except when explicitly forbidden by the
    Guidelines").
    7

    circumstances
    making

    of

    the threat

    the reputation

    of

    the person

    it."); see also United States v. Williams, 952 F.2d 1504,


    ___ ____ _____________
    ________

    1514 (6th Cir. 1991)


    by

    or

    (concluding that "implicit threats employed

    the defendant" can suffice to bring his case within the ambit

    of the guideline).
    For

    all intents

    and purposes,

    that ends

    the matter.

    When a district court's decision to adjust the base offense level


    is factbound,

    we review

    it only

    for clear

    error.

    See United
    ___ ______

    States
    ______

    v.

    Savoie, 985
    ______

    F.2d 612,

    States v. Iguaran-Palmar, 926


    ______
    ______________
    States
    ______

    v. Diaz-Villafane,
    ______________

    denied,
    ______
    437,

    493 U.S. 862 (1989);

    444

    (1st

    threatened

    1991); United
    ______

    F.2d 43,

    with possible

    2B3.2(b)(1).

    harm

    view

    cert.
    _____

    Wright, 873 F.2d


    ______
    admits that
    if they

    he

    did not

    can hardly say

    inferring that

    consequently, in invoking

    See generally United States v. Ruiz, 905


    ___ _________ _____________
    ____

    (holding that "where there is more

    of the

    court's choice among supportable

    Cir. 1992)

    appellant

    committed clear error in

    F.2d 499, 508 (1st Cir. 1990)

    erroneous");

    (1st Cir.),

    Given this undisputed fact, we

    involved bodily harm and,


    ______

    one plausible

    48

    United States v.
    _____________

    and Cyr

    that the district court

    than

    F.2d 7, 9 (1st Cir.

    Here,

    return the bond.

    U.S.S.G.

    1993); United
    ______

    Cir. 1989).

    Halle

    the threats

    (1st Cir.

    874

    615

    circumstances, the

    sentencing

    alternatives cannot be

    United States v. Tardiff,


    _____________
    _______

    clearly

    969 F.2d 1283, 1287 (1st

    (discussing broad discretion granted

    district judges

    "to determine what data is, or is not, sufficiently dependable to


    be used in imposing sentence").
    V
    V
    8

    We need go no further.
    substantial

    question,

    summary disposition

    we

    the

    government's

    and, pursuant to Local

    affirm the judgment below.

    Affirmed.
    Affirmed.
    ________

    grant

    Because this appeal presents no


    motion

    for

    Rule 27.1, summarily

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