                  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,  Circuit Judge.   Having  pleaded guilty  to one
          SELYA,  Circuit Judge.
                               

count of extortion in  violation of 18 U.S.C.    1951, defendant-

appellant Eric Jones now appeals from the imposition of sentence.

We affirm.

                                I

          We  succinctly summarize  the relevant  facts.   In May

1991,   appellant  sought   a   $5,000  loan   from  a   business

acquaintance,  John Halle.  Halle  asked Richard Cyr  to make the

loan.  When Cyr agreed,  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  States treasury bond having a face value

of  $10,000, he  failed to repay  the loan.   When  Halle and Cyr

contacted  a brokerage firm  to arrange for  a sale  of the bond,

they discovered that it had previously been stolen.

          The Federal  Bureau of  Investigation (FBI)  mounted an

inquiry into the theft.  Halle and Cyr cooperated.  In the course

of  its  investigation,  the  FBI, with  Halle's  consent,  tape-

recorded   certain  telephone  conversations  between  Halle  and

appellant.  During these calls,  which occurred in December 1991,

appellant  attempted to  retrieve  the bond.    As part  of  this

effort, he implied that  bad things would happen to  Halle and/or

Cyr  if they did  not return the  bond.  At  one point, appellant

stated to  Halle that the  bond had to  be returned by  5:00 p.m.

that  afternoon or else "someone"  would be on  Cyr's doorstep at

some point during the  next few days.  Appellant  told Halle that

                                2

he had  better leave  town  for this  period of  time.   He  also

suggested that Halle warn Cyr.

                                II

          The  sentencing guideline  that applies  to appellant's

offense is U.S.S.G.    2B3.2 (Nov. 1991).  Under  this guideline,

the  base offense  level is  18.   See U.S.S.G.    2B3.2(a).   At
                                      

sentencing, the  district court made offsetting  adjustments.  It

granted   appellant  a   two-level  credit   for  acceptance   of

responsibility, U.S.S.G.    3E1.1,  but simultaneously  ordered a

two-level  increase  under  U.S.S.G.    2B3.2(b)(1)  because  the

offense conduct involved "an express  or implied threat of death,

bodily  injury,   or  kidnapping."1    The   court  calculated  a

sentencing  range of  27-33  months (offense  level 18;  criminal

history  category  I)  and   imposed  a  30-month   incarcerative

sentence.  This appeal ensued.

                               III

          On appeal, Jones challenges only the two-level increase

awarded pursuant to section 2B3.2(b)(1).   His principal claim is

that the  district court  erred  in applying  a specific  offense

characteristic  (threat  of  bodily  harm) to  effect  an  upward

adjustment in circumstances where  the Sentencing Commission  had

already  factored this same conduct  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  wrongful use

of actual or threatened  force, violence [or] fear  . . . ."   He

asseverates that,  under this definition, a  "threat" of physical

harm, which  results in "fear,"  is an element of  the crime; and

that,  because the  caption of  U.S.S.G.    2B3.2 also  refers to

"extortion" by "threat"  of injury, the base offense  level must,

by analogy, incorporate the  element of threatened bodily injury.

We disagree.

          Although  minations  may  often  accompany  an  act  of

extortion,  a  threat  of  bodily  harm  is  neither an  inherent

characteristic nor a necessary concomitant of the crime.  Rather,

18 U.S.C.   1951(b)(2) leaves the dimensions  of a fear-producing

threat relatively open-ended.   That  is to say,  the statute  of

conviction criminalizes  a wide array of  fear-producing threats,

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

Anderson,  962  F.2d 187  (2d Cir.  1992),  or to  yank lucrative
        

county  contracts, United  States v. Stodola,  953 F.2d  266 (7th
                                            

Cir.),  cert. denied,  113  S. Ct.  104  (1992), in  addition  to
                    

threats of physical harm.

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

all  unusual  that  the  Sentencing Commission,  charged  with  a

different function than the Congress, would choose to distinguish

among  various types  of extortion  for sentencing  purposes and,

accordingly, seek to punish  extortionists who employ "express or

                                4

implied threat[s]  of death,  bodily injury, or  kidnapping," see
                                                                 

U.S.S.G.    2B3.2(b)(1), with  greater severity than  other, less

callous,  practitioners  of the  same crime.    There is  not the

slightest sign that the Commission had  specifically incorporated

a threat  of bodily  harm to  the victim's  person into  the base

offense level generally applicable  to the offense of conviction.

To the exact contrary,  the application notes make  manifest that

the  Commission  designed  the  general  guideline  provision  to

encompass  all acts  of extortion,  not just  those in  which the
              

victim's life and limb are placed at risk:

          This  guideline  applies  if  there  was  any
          threat, express or  implied, that  reasonably
          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.    2B3.2,  comment. (n.2); see,  e.g., United  States v.
                                                              

Penn,  966 F.2d  55, 57  (2d Cir.  1992) (per  curiam) (upholding
    

application  of    2B3.2  in case  where  defendant, among  other

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

injury").

          Having  swept  broadly   in  constructing  the  general

guideline, the Commission  subsequently designed the  enhancement
                                       

provision specifically to  target those who made a  bad situation

worse by using  "an express  or implied threat  of death,  bodily

injury,  or  kidnapping"  as  a  tool  of  the  extortion  trade.

U.S.S.G.    2B3.2(b)(1).   The  very fact  that the  enhancer was

added later, and, thus,  superimposed upon the general guideline,

furnishes  potent evidence that the  Commission did not intend to

                                5

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  misplaced.  In Plaza-
                                                                 

Garcia, the  defendant  pled  guilty to  one  count  of  sexually
      

exploiting a  minor in  violation of  18 U.S.C.    2251(a).   The

applicable  sentencing guideline,  U.S.S.G.    2G2.1(a), provided

for  a  base  offense  level  of  25.    The  presentence  report

recommended,  and  the  sentencing  judge  imposed,  a  two-level

increase  because   the  victim's   youth  made   him  "unusually

vulnerable" within the  meaning of  U.S.S.G.   3A1.1.   But,  the

commentary to U.S.S.G.   3A1.1  stated specifically that the two-

level  adjustment for vulnerability due to age does not apply "if

the  offense  guideline specifically  incorporates  this factor."

U.S.S.G.   3A1.1, comment. (n.2).  Hence,  we reversed, reasoning

that, because  the guideline for  sexual exploitation of  a minor

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

levels would constitute  impermissible double  counting.   Plaza-
                                                                 

Garcia,  914 F.2d  at  347.    Here,  in  contrast,  the  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.
                                 

                                6

1992),  we conclude,  without serious  question, that  U.S.S.G.  

2B3.2(a)  does not  specifically incorporate  a threat  of bodily

harm into  the base offense  level for extortion  and, therefore,

the  district court  did not  engage in  double counting  when it

ordered the two-level increase.2

                                IV

          Appellant  has  a  second  arrow  in his  quiver.    He

maintains  that his conduct did not fall within the compendium of

aggravating   factors  represented   by   the  specific   offense

characteristics listed in U.S.S.G.    2B3.2(b)(1).  This argument

will not wash.   The district court  made its finding that  Jones

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

basis  of  words  spoken  by  Jones  himself  and  preserved  for

posterity on magnetic tape.   To the extent, if at all,  that the

threats were inexplicit   and we  do not suggest that they were  

the sentencing court was  nonetheless entitled to draw reasonable

inferences  and  resolve  any  possible   ambiguity  against  the

extortionist.  See U.S.S.G.   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  of  the threat  or  the reputation  of  the person

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

1514 (6th Cir. 1991)  (concluding that "implicit threats employed

by  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,  615  (1st Cir.  1993); United
                                                                 

States v. Iguaran-Palmar, 926  F.2d 7, 9 (1st Cir.  1991); United
                                                                 

States  v. Diaz-Villafane,  874  F.2d 43,  48  (1st Cir.),  cert.
                                                                 

denied,  493 U.S. 862 (1989);  United States v.  Wright, 873 F.2d
                                                       

437,  444  (1st  Cir. 1989).    Here,  appellant  admits that  he

threatened  Halle  and Cyr  with possible  harm  if they  did not

return the bond.   Given this undisputed fact, we  can hardly say

that the district court  committed clear error in  inferring that

the threats  involved bodily harm and,  consequently, in invoking
                            

U.S.S.G.   2B3.2(b)(1).  See generally United States v. Ruiz, 905
                                                            

F.2d 499, 508 (1st Cir. 1990)  (holding that "where there is more

than  one plausible  view  of the  circumstances, the  sentencing

court's choice among supportable  alternatives cannot be  clearly

erroneous");  United States v. Tardiff,  969 F.2d 1283, 1287 (1st
                                      

Cir. 1992)  (discussing broad discretion granted  district judges

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

be used in imposing sentence").

                                V

                                8

          We need go no further.  Because this appeal presents no

substantial  question,  we  grant  the  government's  motion  for

summary disposition  and, pursuant to Local  Rule 27.1, summarily

affirm the judgment below.

Affirmed.
        

                                9
