           United States Court of Appeals
                      For the First Circuit

No. 11-1971

                     UNITED STATES OF AMERICA,

                             Appellee,

                                v.

                          JASON P. FIUME,

                       Defendant, Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT

                     FOR THE DISTRICT OF MAINE

         [Hon. John A. Woodcock, Jr., U.S. District Judge]


                              Before

                        Lynch, Chief Judge,
                    Souter,* Associate Justice,
                     and Selya, Circuit Judge.


     Neil L. Fishman on brief for appellant.
     Margaret D. McGaughey, Assistant United States Attorney, and
Thomas E. Delahanty II, United States Attorney, on brief for
appellee.



                         February 22, 2013




     *
      Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
              SELYA, Circuit Judge.              The principal issue in this

sentencing     appeal    is   one   of    first impression at      the   federal

appellate level.        The appeal is premised on the notion that a two-

level enhancement to the defendant's guideline sentencing range

(GSR) under USSG §2A6.2(b)(1)(A), when superimposed upon a base

offense   level     dictated        by    USSG    §2A6.2(a),    constitutes    an

impermissible exercise in double counting.                 Viewed through the

mists of distance, this notion possesses a patina of plausibility;

on closer examination, however, its weaknesses are apparent.                  We

hold that the use in tandem of a base offense level dictated by

§2A6.2(a), and an upward adjustment under §2A6.2(b)(1)(A), does not

constitute impermissible double counting.              Consequently, we affirm

the sentence imposed below.

              In June of 2010, defendant-appellant Jason P. Fiume was

found guilty in a New York court of assaulting his wife Megan and

sentenced to time served.            At around the same time, the court

entered a protection order, which was to be effective through June

22,   2015.      Pertinently,       the   protection    order   prohibited    the

defendant from either approaching or communicating with Megan, and

put him on notice that it would be a federal offense to cross state

lines in order to violate these conditions.

              Unfazed by the protection order, the defendant undertook

a course of conduct that flouted its terms.             This conduct included

attempts to communicate with Megan by telephone, mail, e-mail, text


                                          -2-
message, and Facebook.            His campaign was not limited to remote

communicative efforts; on July 2, 2010, he traveled to his in-laws'

home in Maine (where Megan was staying) and left a message for

Megan on a tree in the yard.

            In     due   season,    a   federal       grand     jury    returned    an

indictment that charged the defendant with violating 18 U.S.C.

§   2262(a)(1),     (b)(5),     a   statute   that,      with    some    conditions,

criminalizes interstate travel with the intent to engage in conduct

that transgresses a court-imposed protection order.1                      After the

defendant entered a guilty plea to this charge, the probation

department       prepared   a     presentence        investigation      report     (PSI

Report).     The PSI Report recommended that the court start with a

base offense level of 18, derived from USSG §2A6.2(a) — a guideline

applicable to an array of crimes involving stalking or domestic

violence.     It further recommended that the court add a two-level

enhancement       because   the     offense     of     conviction      involved     the

violation of a court protection order, see id. §2A6.2(b)(1)(A);

another two-level enhancement for a pattern of activity involving

stalking, threatening, harassing, or assaulting the same victim,

see id. §2A6.2(b)(1)(D); and applied a three-level reduction for

acceptance of responsibility, see id. §3E1.1.                 These calculations,




      1
       The indictment also contained a stalking count, see 18
U.S.C. §§ 115, 2261(b)(5), 2261A(2)(B), which was later dismissed
and is of no moment here.

                                        -3-
in concert with the defendant's criminal history category (II),

yielded a GSR of 33-41 months in prison.

              At the disposition hearing, the district court, over the

defendant's objections, accepted the guideline calculations limned

in the PSI Report and imposed a top-of-the-range sentence of 41

months.   This timely appeal ensued.

              In this venue, the defendant renews an objection that he

unsuccessfully made below: he argues that the two-level upward

adjustment for violation of a court protection order constitutes

impermissible double counting because the violation of a court

order was also an element of the offense of conviction.             Where, as

here, we are dealing with a preserved claim of error, we review de

novo a sentencing court's interpretation and application of the

sentencing guidelines. See United States v. Leahy, 668 F.3d 18, 21

(1st Cir. 2012); United States v. Pho, 433 F.3d 53, 60-61 (1st Cir.

2006).

              In the world of criminal sentencing, "double counting is

a phenomenon that is less sinister than the name implies."             United

States v. Zapata, 1 F.3d 46, 47 (1st Cir. 1993).            Such arithmetic

"is often perfectly proper."         Id.    After all, sentencing facts are

not found "in hermetically sealed packages, neatly wrapped and

segregated one from another."         United States v. Lilly, 13 F.3d 15,

19 (1st Cir. 1994).       Multiple sentencing adjustments may derive

from   "the    same   nucleus   of   operative    facts   while   nonetheless


                                      -4-
responding to discrete concerns."            Id.   Thus, in the absence of an

express prohibition, this court routinely has permitted a single

underlying fact to be used more than once when that fact bears upon

two separate sentencing considerations.2            See, e.g., United States

v. Chiaradio, 684 F.3d 265, 283 (1st Cir. 2012); United States v.

McCarty, 475 F.3d 39, 46-47 (1st Cir. 2007); United States v.

Wallace, 461 F.3d 15, 36 (1st Cir. 2006); United States v. Rivera-

Maldonado, 194 F.3d 224, 235 (1st Cir. 1999); Lilly, 13 F.3d at 17-

20; Zapata, 1 F.3d at 49-50.

           These principles are dispositive here.                  Neither the

guideline provision about which the defendant complains, USSG

§2A6.2,   nor   its   associated       commentary     contains    any   textual

proscription against the use of a two-level upward adjustment under

§2A6.2(b)(1)(A).       That    is   an       important   datum    because   "the

guidelines themselves are the most helpful aid in the task of

separating   permissible      double    counting     from   its   impermissible

counterpart."    Lilly, 13 F.3d at 19.             Courts ordinarily should

interpret and apply the guidelines as written, see Zapata, 1 F.3d

at 47, and "[t]he Sentencing Commission has not been bashful about



     2
       We add that the use of the term "double counting" to refer
to permissible multiple uses of a single sentencing fact carries
with it the misleading suggestion that something unfair or improper
has occurred. For that reason, courts and lawyers would be well-
advised to use less pejorative language and to speak only of
"multiple use" when the guidelines permit a given sentencing fact
to be considered at more than one step in determining the total
offense level that fits a defendant's conduct.

                                       -5-
explicitly banning double counting in a number of instances,"

Lilly, 13 F.3d at 19; see United States v. Newman, 982 F.3d 665,

673   (1st    Cir.   1992)    ("[T]he    Commission's   awareness   of   the

sentencing excesses which flow from impermissible 'double counting'

is plainly reflected in other guideline application notes expressly

forbidding it."      (emphasis in original)).3     Given the Commission's

proclivity for indicating when double counting is forbidden, we are

reluctant to infer further such instances out of thin air.

             In all events, USSG §2A6.2 offers inhospitable ground for

such an inference.           The sentencing guideline under which the

defendant's base offense level was set targets three separate types

of crimes and lumps them within the rubric of "Stalking or Domestic

Violence" offenses.      Only one of this trio contains as an element

the violation of a court protection order.          See 18 U.S.C. § 2261

(interstate domestic violence); id. § 2261A (interstate stalking);

id. § 2262 (interstate violation of a protection order).            The most

logical conclusion, therefore, is that the defendant's base offense



      3
       Examples of explicit prohibitions against double counting
abound. See, e.g., USSG §2K2.1, comment. (n.8(A)) (instructing
against application of stolen firearm enhancement under certain
statutes of conviction "because the base offense level takes into
account that the firearm or ammunition was stolen"); id. §3A1.1,
comment. (n.2) (instructing against application of vulnerable
victim enhancement "if the factor that makes the person a
vulnerable victim is incorporated in the offense guideline"); id.
§3A1.3, comment. (n.2) (instructing against application of
restraint of victim enhancement "where the offense guideline
specifically incorporates this factor, or where the unlawful
restraint of a victim is an element of the offense itself").

                                        -6-
level accounts for the general nature of the offense of conviction

as one of stalking or domestic violence, but does not account

specifically for the violation of a court protection order; the

two-level upward adjustment under USSG §2A6.2(b)(1)(A) bridges the

gap and accounts for this feature of the defendant's crime.                In

other words, the presence of section 2262 within USSG §2A6.2 must

be read in light of §2A6.2(b)(1)(A), which makes available, without

limitation, an enhancement for a violation of a protection order.

This is an endorsement of the enhancement, not a prohibition. That

is single counting, not double counting.

            The able district judge appreciated this distinction. He

specifically noted, at the disposition hearing, that the Sentencing

Commission may have rationally intended to punish a stalking-type

offense    more   seriously   where    it   simultaneously     involved   the

violation of a court order. He therefore applied the guidelines as

written and enhanced the defendant's offense level accordingly. We

discern no error.      Cf. Newman, 982 F.3d at 674-75 (explaining that

"[t]he    carefully    calibrated     offense   level     adjustment   scheme

.   .   . would   be   disarranged"    if   defendant's    purported   double

counting were prohibited, "as the base offense level could not be

increased [] in response to" various types of assault).

            If more were needed — and we doubt that it is — this

result is fortified by the penalty provisions of 18 U.S.C. §§ 2261

and 2261A.    These statutes prescribe a special minimum punishment


                                      -7-
for    cases     involving    violations       of   court   orders.      See   id.

§ 2261(b)(6) ("Whoever commits the crime of stalking in violation

of    a   temporary    or    permanent    civil     or   criminal     injunction,

restraining order, no-contact order, or other order described in

[18 U.S.C. § 2266] . . . shall be punished by imprisonment for not

less than 1 year."); id. § 2261A (incorporating by reference the

penalty provisions of § 2261(b)).

               The defendant advances yet another argument against the

sentence imposed.      He claims for the first time on appeal that the

purported double-counting scheme subjects him to "punish[ment]

twice for the exact same crime" in violation of the Double Jeopardy

Clause.    We review this new argument only for plain error.               United

States v. Olano, 507 U.S. 725, 731-32 (1993); United States v.

Duarte, 246 F.3d 56, 60 (1st Cir. 2001).

               The Double Jeopardy Clause, U.S. Const. amend. V, cl. 2,

"forbids successive prosecution and cumulative punishment for a

greater and lesser included offense," Brown v. Ohio, 432 U.S. 161,

169 (1977), such that a court may not impose multiple punishments

for what is essentially the same offense, id. at 165.                      Here,

however, the defendant stands convicted of only a single offense

and received only a single sentence.                By no stretch of even the

most active imagination is the Double Jeopardy Clause implicated.

               The defendant makes passing references to a gallimaufry

of other theories.          He suggests, for example, that his sentence


                                         -8-
comprises cruel and unusual punishment, see U.S. Const. amend.

VIII, and violates the rule of lenity. Because these allusions are

ethereal and unaccompanied by any developed argumentation, we deem

them waived.    See United States v. Zannino, 895 F.2d 1, 17 (1st

Cir. 1990).

            We need go no further.4   For the reasons elucidated

above, we uphold the defendant's sentence.



Affirmed.




     4
       The government has argued that the challenged enhancement
could have been predicated on the violation of any of three other
protection orders issued against the defendant (none of which was
charged in the indictment). The district court did not rely upon
this reasoning, nor do we.

                                -9-
