                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 05 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-10219

              Plaintiff - Appellee,              D.C. No. 4:09-cr-00217-PJH-1

  v.
                                                 MEMORANDUM *
FRANK SALVADOR SOLORZA,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Northern District of California
                    Phyllis J. Hamilton, District Judge, Presiding

                     Argued and Submitted February 13, 2012
                            San Francisco, California

Before: HUG, B. FLETCHER, and PAEZ, Circuit Judges.

       Defendant-Appellant Frank Solorza appeals his sentence following

convictions for conspiracy, in violation of 18 U.S.C. § 371, impersonation of a

federal officer, in violation of 18 U.S.C. § 912, and attempted extortion by a

federal officer, in violation of 18 U.S.C. § 872. The charges arose from Solorza’s



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
attempted extortion of his cousins, the Escatel family. He was sentenced to 36

months on each count with all terms to run concurrently.

      On appeal, Solorza challenges only his sentence. We review the district

court’s interpretation of the Sentencing Guidelines de novo, and its findings of fact

for clear error. United States v. Rivera, 527 F.3d 891, 908 (9th Cir. 2008) (citing

United States v. Garcia, 497 F.3d 964, 969 (9th Cir. 2007)).

      Solorza first asserts that the district judge erred in applying the guideline

corresponding to his offense of conviction because he is an atypical offender, and

therefore the district judge should have selected a guideline more applicable to his

offense conduct. We disagree. In selecting an appropriate guideline, the district

court must determine the guideline section in Chapter Two (Offense Conduct)

applicable to the offense of conviction, referring to the Statutory Index contained

in Appendix A of the Guidelines. United States v. McEnry, 659 F.3d 893, 897 (9th

Cir. 2011). To determine which section of Chapter Two contains the appropriate

guideline, the district court must consider the crime of conviction as charged in the

indictment, rather than the manner in which the defendant committed the offense.

Offense conduct becomes relevant only once the applicable guideline has been

selected, in applying enhancements or adjustments. Id. (“[A] district court may not

use relevant conduct to select whatever guideline it wants; relevant conduct may be


                                           2
considered only in the application of enhancements and adjustments once a

guideline has been selected.”). This is precisely the approach that the district judge

followed in sentencing Solorza. Accordingly, the district judge did not err.1

      Solorza next asserts that the district judge erred in applying the vulnerable

victim enhancement to his sentence. Section 3A1.1(b)(1) provides for a two-level

adjustment when “the defendant knew or should have known that a victim of the

offense was a vulnerable victim.” U.S.S.G. § 3A1.1(b)(1). Application Note 2

defines “vulnerable victim” as one who is “unusually vulnerable due to age,

physical or mental condition, or who is otherwise particularly susceptible to the

criminal conduct.” Id. “A condition that occurs as a necessary prerequisite to the

commission of a crime cannot constitute an enhancing factor under § 3A1.1. The

vulnerability that triggers § 3A1.1 must be an ‘unusual’ vulnerability which is




      1
       Solorza’s reliance on excised language from the pre-2000 Sentencing
Guidelines, which permitted the district court to consider the defendant’s offense
conduct in “atypical” cases, and cases relying on that language, is misplaced. See
McEnry, 659 F.3d at 899 n.8 (“To the extent that some of our cases rely on the
excised language (directly or indirectly) to suggest that relevant conduct may be
used to select the appropriate guideline pursuant to U.S.S.G. § 1B1.2(a) and the
Statutory Index, they have been superseded by th[e 2000] amendment[s to the
Sentencing Guidelines].”) (collecting cases).



                                          3
present in only some victims of that type of crime.” United States v. Moree, 897

F.2d 1329, 1335 (9th Cir. 1990).

      Solorza asserts that the district judge erred in applying the enhancement

because she cited to characteristics common among undocumented immigrants

generally, rather than characteristics specific to the Escatels; because the

characteristics that rendered the Escatels vulnerable are inherent in the crime of

conviction; and, because the Escatels were in fact uniquely resistant to his scheme.

Again, we disagree.

      First, the district judge found the Escatels to be particularly vulnerable

because of their status as undocumented immigrants whose status was known to

ICE. This characteristic distinguishes them from undocumented immigrants

generally, and made them particularly vulnerable to Solorza’s scheme. See United

States v. Castaneda, 239 F.3d 978, 981 n.4. (9th Cir. 2001) (noting that the

vulnerable victim enhancement “does not . . . require that the victims be more

vulnerable than the typical victims of the particular scheme or type of scheme.”).

      Second, the offense of conviction at issue here—namely, extortion by one

impersonating a federal official—applies not just to those who pretend to be a

federal immigration officer to get money from undocumented aliens, but also to

anyone who extorts money by pretending to be a federal official. 18 U.S.C. § 912.


                                           4
Because the statute of conviction applies broadly, not all the victims are vulnerable

in the same way for the same reasons. United States v. Mendoza, 262 F.3d 957,

962 (9th Cir. 2001). Thus, even though Solorza’s scheme targeted those with a

unique vulnerability, it cannot be said that the offense of conviction necessarily

presupposes that particular vulnerability. See id.

      Finally, the fact that the Escatels chose to call ICE rather than to pay Solorza

the bribes he demanded is immaterial. Solorza was aware of the Escatels’

precarious legal status, as well as their past victimization by Bertina Frost, and

reasonably anticipated that they would comply with his demands. See United

States v. Peters, 962 F.2d 1410, 1418 (9th Cir. 1992).

      For these reasons, Solorza’s sentence is AFFIRMED.




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