
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,  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                                          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                                          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                                         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                                          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                                          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.          Affirmed.          ________                                          9
