PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                       No. 95-5242
ANDREW SCOTT MORIN, a/k/a Scott
Morris,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.
                                                                       No. 95-5300
ANDREW SCOTT MORIN, a/k/a Scott
Morris,
Defendant-Appellee.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-94-375-A)

Argued: January 29, 1996

Decided: April 5, 1996

Before WILKINSON, Chief Judge, HAMILTON, Circuit Judge,
and BLAKE, United States District Judge for the District of
Maryland, sitting by designation.

_________________________________________________________________

Affirmed in part, vacated and remanded in part by published opinion.
Chief Judge Wilkinson wrote the opinion, in which Judge Hamilton
and Judge Blake joined.
COUNSEL

ARGUED: Lisa Bondareff Kemler, MOFFITT, ZWERLING &
KEMLER, P.C., Alexandria, Virginia, for Appellant. Vincent L.
Gambale, Assistant United States Attorney, UNITED STATES
ATTORNEY'S OFFICE, Alexandria, Virginia, for Appellee. ON
BRIEF: John Kenneth Zwerling, MOFFITT, ZWERLING & KEM-
LER, P.C., Alexandria, Virginia, for Appellant. Helen F. Fahey,
United States Attorney, William Graham Otis, Senior Litigation
Counsel, UNITED STATES ATTORNEY'S OFFICE, Alexandria,
Virginia, for Appellee.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

Andrew Scott Morin was convicted of murder-for-hire, 18 U.S.C.
§ 1958(a), and sentenced to 21 months imprisonment. Morin contends
that because the murder would have taken place outside the United
States, it would have violated no federal or state law, a necessary ele-
ment of § 1958(a). We disagree. Morin's intended murder would have
violated at least one federal law and two Virginia laws.

The government, meanwhile, appeals the district court's substantial
downward departure pursuant to the Sentencing Guidelines. The dis-
trict court found three grounds for downward departure: (1) that the
victim had engaged in wrongful conduct; (2) that the circumstances
of Morin's offense fell outside the heartland of murder-for-hire cases;
and (3) that Morin suffered from diminished capacity. We hold the
district court erred in departing downward on the grounds of victim
misconduct as well as on the circumstances of Morin's offense. We
therefore affirm Morin's conviction but vacate and remand this case
for resentencing.

I.

In 1984, when Morin was 10 years old, he began to take martial
arts lessons from Dr. Armando Soto-Bararra ("Dr. Soto"). Eventually,

                    2
Dr. Soto became Morin's mentor and friend. Their friendship was
such that Morin spent most of his free time working with Dr. Soto at
his California home. In early 1994, Dr. Soto left his wife and daughter
in California and travelled to the Philippines to manage a clinic.
While Dr. Soto was away, Morin stayed with and was to look after
Dr. Soto's family.

Morin claimed that during this stay, Dr. Soto's wife, Raghnild Per-
stolen, seduced him. Ms. Perstolen, however, has denied any sexual
relationship with Morin. Whatever the case, Morin stated that he fell
in love with Perstolen and that Perstolen later told him that she was
being abused by Dr. Soto. Morin concluded that the only way to pro-
tect Perstolen was to hire a hit man to kill Dr. Soto.

Morin began his search for a hired killer by telephoning an
acquaintance in New York, who referred Morin to Steve Hartman, a
Virginia private investigator. Morin met with Hartman in Virginia and
attempted to hire Hartman to kill Dr. Soto. Following this meeting,
Hartman contacted the FBI. The FBI provided an undercover agent
to pose as an assassin, and Hartman referred Morin to the agent.
Morin subsequently telephoned the agent, discussed the plan to mur-
der Dr. Soto, and mailed the agent a 13-page letter listing "Target
Information/Pictures" and "Proposed Scenarios" for Dr. Soto's mur-
der, including "one large caliber shot to the back of the head." Morin
eventually flew to Virginia, met with the undercover agent, and pro-
vided him with $1,400 in cash and an airline ticket to the Philippines.
The agent then arrested Morin.

Morin was charged with three counts of murder-for-hire, 18 U.S.C.
§ 1958(a), and one count of mailing a threatening communication, 18
U.S.C. § 876. At his bench trial, Morin offered an insanity defense.
His psychiatrist testified that Morin was delusional and that the
alleged affair between Morin and Perstolen had never occurred. The
district court concluded that while Morin suffered from a "severe
mental illness which included a delusional motivation for illegal con-
duct . . . [Morin] appreciat[ed] the nature and quality of wrongfulness
of his acts." Morin was ultimately found guilty on all counts.

Under the Guidelines, Morin's base offense level was 32. Because
Morin had accepted responsibility for his actions, he received a three-

                    3
level Guidelines reduction to 29. This resulted in a sentencing range
of 87 to 108 months. The Presentence Report also noted three other
factors that might warrant a downward departure in Morin's sentence:
(1) Dr. Soto's alleged misconduct; (2) the unusual circumstances of
this case; and (3) Morin's diminished capacity. The district court
found that all three of these departures were appropriate, reduced
Morin's offense level to 15 (with a recommended sentencing range of
18 to 24 months), and sentenced Morin to 21 months imprisonment.
Both Morin and the government now appeal.

II.

The federal murder-for-hire statute requires an"intent that a mur-
der be committed in violation of the laws of any State or the United
States." 18 U.S.C. § 1958(a) (emphasis added).1 Morin argues that
this element has not been satisfied because the murder of Dr. Soto
was to occur in the Philippines, outside the jurisdiction of the United
States. Even so, however, Morin's intended murder would have vio-
lated both federal and Virginia law.

First, the murder of "a national of the United States, while such
national is outside the United States" is a federal offense punishable
"by death or imprisonment for any term of years or for life." 18
U.S.C. § 2332(a). Morin seeks to escape this offense by alleging that
Dr. Soto was not a national of the United States, but rather, a Mexican
citizen. Citizenship, however, is not the sine qua non of "nationality."
A "national of the United States" may also be"a person who, though
_________________________________________________________________
1 18 U.S.C. § 1958(a) states:

          Whoever travels in or causes another (including the intended vic-
          tim) to travel in interstate or foreign commerce, or uses or causes
          another (including the intended victim) to use the mail or any
          facility in interstate or foreign commerce, with intent that a mur-
          der be committed in violation of the laws of any State or the
          United States as consideration for the receipt of, or as consider-
          ation for a promise or agreement to pay anything of pecuniary
          value or who conspires to do so, shall be . . . imprisoned for not
          more than ten years . . . and if personal injury results, shall be
          . . . imprisoned for not more than twenty years . . . and if death
          results, shall be punished by death or life imprisonment . . . .

                    4
not a citizen of the United States, owes permanent allegiance to the
United States." 8 U.S.C. § 1101(a)(22). The district court found that
because Dr. Soto was a permanent resident alien of the United States
who had applied for United States citizenship, he was indeed "a
national of the United States." We agree--an application for citizen-
ship is the most compelling evidence of permanent allegiance to the
United States short of citizenship itself. Accordingly, had Morin suc-
ceeded in killing Dr. Soto, the murder would have violated § 2332(a).2

Second, Morin's intended killing would also have violated Virginia
law. The Virginia Code includes within its definition of "Capital Mur-
der" the "willful, deliberate, and premeditated killing of any person
by another for hire." Va. Code § 18.2-31(2). This is exactly what
Morin intended to accomplish. It is without consequence that Morin
intended for the killing to take place in the Philippines, because the
hiring of the killer took place in Virginia and this is sufficient to vio-
late the Virginia statute. See, e.g., Johnson v. Commonwealth, 220 Va.
146, 255 S.E.2d 525, 527 (1979) (Person who "conceived and insti-
gated a murder for hire, and who procured" the killer violates the Vir-
ginia capital murder statute).

In fact, the government need not demonstrate that the murder of
Dr. Soto would have violated the Virginia capital murder law. Section
1958(a) requires only that there be a "violation of the laws of any
State or the United States." An intended murder may well violate laws
other than those specifically prohibiting homicide. Here, Virginia has
a separate crime of conspiracy to commit capital murder. Va. Code
_________________________________________________________________
2 We recognize that 18 U.S.C.§ 2332(a) is part of an anti-terrorism
statute and that it is uncertain whether Morin would have been prose-
cuted under § 2332(a). See 18 U.S.C.§ 2332(d). Questions of ultimate
prosecution and jurisdiction, however, simply exceed the plain meaning
of § 1958. The "violation" element of murder-for-hire is a low hurdle,
nothing more than an abstract comparison of a crime's elements with
what the defendant intended to accomplish. Any further inquiry would
lead courts down the path of speculation and distract both courts and
juries from the central issues at stake in a § 1958 prosecution: 1) "travel
or cause another to travel in interstate commerce, 2) with the intent that
a murder be committed, [and 3)] consideration for the receipt of or prom-
ise to pay anything of pecuniary value." United States v. Ritter, 989 F.2d
318, 321 (9th Cir. 1993).

                     5
§ 18.2-22. Even if Morin could not have been charged by Virginia
with a murder that took place in the Philippines, both Morin and his
assassin, because they conspired to kill Dr. Soto in Virginia, would
have committed the Virginia crime of conspiracy to commit capital
murder. See Stevens v. Commonwealth, 14 Va.App. 238, 415 S.E.2d
881, 883 (1992) ("[t]he crime is `committed when the agreement to
commit the offense is complete' and no overt act in furtherance of the
underlying crime is necessary") (quoting Johnson v. Commonwealth,
8 Va.App. 34, 377 S.E.2d 636, 638 (1989)).3

As Morin's intended murder of Dr. Soto would have violated at
least one federal and two Virginia laws, Morin's conviction satisfied
the requisite elements of § 1958.

III.

We next turn to Morin's sentence. After the three-level reduction
for acceptance of responsibility, Morin's Guidelines range fell
between 87 and 108 months imprisonment. The district court, how-
ever, substantially departed from this recommended sentence because
of: (1) Dr. Soto's alleged misconduct (USSG § 5K2.10); (2) the
unusual circumstances of this case (USSG § 5K2.0); and (3) Morin's
supposed diminished capacity (USSG § 5K2.13). Morin was ulti-
mately sentenced to 21 months in prison, a punishment well below the
usual range for murder-for-hire.

A.

The district court found that Morin's "viewing Soto as posing a
serious physical threat to Ms. Perstolen is a significant circumstance
_________________________________________________________________
3 As a matter of Virginia law, Morin could not have been convicted for
conspiracy to commit murder where the conspiracy was with an FBI
agent. See Fortune v. Commonwealth of Virginia , 406 S.E.2d 47 (Va.
App. 1991). The relevant question, however, under the federal murder-
for-hire statute is whether Morin had an "intent that a murder be commit-
ted in violation of the laws of any State or the United States." 18 U.S.C.
§ 1958(a) (emphasis added). Although Morin ended up interacting with
an FBI agent here, he intended to conspire with a hit man to commit
murder, and under the plain terms of the federal statute, this is sufficient.

                    6
the Court must consider [because Soto's] perceived conduct played a
part in this case" (emphasis added). The Sentencing Guidelines, how-
ever, explain that the victim misconduct departure is appropriate only
"[i]f the victim's wrongful conduct contributed significantly to pro-
voking the offense." USSG § 5K2.10 (emphasis added). The plain
meaning of this provision contemplates that the victim must actually
have done something wrong. See United States v. Desormeaux, 952
F.2d 182, 186 (8th Cir. 1991) (victim's conduct must be more than
provocative, it must also be wrongful). Here, the only evidence that
Dr. Soto did anything wrong was Morin's recollection of a statement
by Ms. Perstolen--yet all of Morin's recollections are suspect given
his psychiatrist's testimony of delusions and Perstolen's denial of the
alleged affair. As it appears that Dr. Soto's behavior was imagined
rather than real, it cannot be said that he did anything wrong. The vic-
tim misconduct departure does not apply in such cases.

Moreover, even if Dr. Soto had abused Ms. Perstolen,"[a] concern
for the proportionality of the defendant's response is manifested by
the terms of § 5K2.10." United States v. Shortt, 919 F.2d 1325, 1328
(8th Cir. 1990) (recognizing the wrongfulness of adultery but finding
defendant's plot to blow up the adulterers to be a disproportionate
response). This is evidenced by the factors that§ 5K2.10 instructs the
court to consider: "any efforts by the defendant to prevent confronta-
tion"; "the danger reasonably perceived by the defendant"; and "the
danger actually presented to the defendant by the victim." Here,
Morin was in no personal danger from Dr. Soto. He did not attempt
to prevent a confrontation with his intended victim. He did not even
attempt to insulate Ms. Perstolen from the perceived danger (for
example, he could have contacted law enforcement officials about Dr.
Soto's alleged behavior). Instead, Morin immediately set out to kill
Dr. Soto. The victim misconduct guideline was not intended to benefit
a defendant who sets out to murder someone whose conduct fails to
meet with his approval. See Shortt, 919 F.2d at 1328. The district
court erred in using it as a basis for a downward departure.

B.

Next, we address the district court's departure on the ground that
Morin's offense fell outside the heartland of murder-for-hire. Because
Morin was convicted of multiple offenses, he should have been sen-

                    7
tenced based on "the most serious of the counts comprising the
Group." USSG § 3D1.3. Instead of sentencing Morin for murder-for-
hire, his most serious offense, USSG § 2E1.4, the district court con-
travened the Guidelines by "using the guideline for threatening com-
munications," a less serious offense, USSG § 2A6.1.

The district court justified its decision by concluding that the "mo-
tive for the hit, the extremely convoluted way in which the murder
was to be committed, the naive way defendant interacted with the hit
man and the fact that the hit man was an FBI agent" placed Morin's
case outside the heartland of murder-for-hire. For many reasons, this
rationale is not persuasive. While Morin claims an altruistic motiva-
tion for his murder-for-hire plot, it appears just as likely that Morin's
motive, even if delusional, was simply the elimination of a perceived
competitor for Ms. Perstolen's affections. In this regard, Morin's
story is hardly outside the heartland of murder-for-hire; instead, it is
another tale of romantic rivalry fueling a murder plot.

Moreover, it is not at all clear that Morin's supposed naivete would
have prevented him from finding a willing assassin. He knew how to
locate Dr. Soto, had photographs of Dr. Soto, and had financial
resources sufficient to travel back and forth between California and
Virginia, to purchase an airline ticket to the Philippines, and to pro-
vide the undercover agent with that ticket and $1400 in cash. Whether
or not Morin had been able to locate a real hired killer willing to
accept his offer at the time the plot was foiled is without moment.
Murder-for-hire plots will often be thwarted at various stages between
their fulfillment of the elements of 18 U.S.C. § 1958 and the actual
point at which murder is to be committed. The statute takes this into
account by distinguishing between plots that result in no injury, plots
that result in injury, and plots that result in actual death. See 18 U.S.C.
§ 1958. Further, the Guidelines Commentary states: "This guideline
and the statute to which it applies do not require that a murder actu-
ally have been committed." USSG § 2E1.4, comment. (backg'd.). Had
the Sentencing Commission intended for foiled plots to fall outside
the heartland of murder-for-hire cases, it would have said so.

The district court's other reasons for declaring this case outside the
heartland are no more persuasive. Morin's plot is typical of murder-
for-hire cases; he did after all suggest "one large caliber shot to the

                     8
back of the head." And the fact that it was an undercover agent who
detected the offense is simply irrelevant to whether a particular defen-
dant falls within the heartland of murder-for-hire. See United States
v. Costales, 5 F.3d 480, 486-88 (11th Cir. 1993) (downward departure
for minimal participation in offense not justified by fact that other
participants were undercover officers). In short, Morin tendered a
supposed hit man the sum of $1400 and plane tickets to the Philip-
pines as part of a scheme to kill Dr. Soto. Morin's murder-for-hire
plot was within the murder-for-hire heartland.

C.

We turn finally to the diminished capacity ground for the down-
ward departure. Its validity hinges on the district court's factual deter-
mination that Morin's murder-for-hire plot was "non-violent." See
USSG § 5K2.13 ("[i]f the defendant committed a non-violent offense
while suffering from significantly reduced mental capacity . . . a
lower sentence may be warranted"); United States v. Weddle, 30 F.3d
532 (4th Cir. 1994) (unlike USSG § 4B1.2, the specific facts of the
offense determine whether it is non-violent under§ 5K2.13). Because
we are uncertain regarding the extent to which this factual finding
may have been influenced by the district court's erroneous belief that
Morin's behavior fell outside the heartland of murder-for-hire cases,
we must remand this case for resentencing. Resentencing would be
required in any event because two of the district court's justifications
for departure are in error and the court did not specify the weight it
gave to those factors in determining the extent of any departure.

IV.

For the forgoing reasons, we affirm Morin's conviction but we
vacate and remand his case for resentencing.

AFFIRMED IN PART, VACATED AND REMANDED IN PART

                     9
