                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 02-2283
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,
                                 v.

ROBERT ALCALA,

                                             Defendant-Appellant.
                          ____________
              Appeal from the United States District Court
       for the Northern District of Indiana, Hammond Division.
                 No. 97 CR 174—Rudy Lozano, Judge.
                          ____________
   ARGUED SEPTEMBER 9, 2003—DECIDED DECEMBER 19, 2003
                          ____________


  Before CUDAHY, EASTERBROOK and RIPPLE, Circuit Judges.
  RIPPLE, Circuit Judge. Robert Alcala was charged in a four-
count indictment, and pleaded guilty to, conspiracy to affect
commerce by threats of violence (extortion) and to using
and carrying a firearm during and in relation to a crime of
violence. Mr. Alcala was sentenced to 123 months of
imprisonment. He subsequently filed, pursuant to 18 U.S.C.
§ 3582(c)(2), a motion to modify his term of imprisonment.
He argued that Amendment 599 to the United States
Sentencing Guidelines was retroactive and applied to his
case. On May 3, 2002, the district court denied Mr. Alcala’s
2                                                  No. 02-2283

motion. For the reasons set forth in the following opinion,
we affirm the judgment of the district court.


                               I
                      BACKGROUND
A. Facts
  In November 1997, Robert Alcala and Ronald Ortega,
intending to collect an $8,000 drug debt, went to a
Hammond, Indiana apartment. During their uninvited visit,
Mr. Alcala hit one occupant on the head with a gun and
threatened to kill everyone present. Mr. Alcala and Ortega
restrained and blindfolded the individual for whom they
had searched. They then transported him to Mr. Alcala’s
place of employment. Once there, they confined and
tortured him. Mr. Alcala and his confederate finally released
the victim, bound and gagged, on a street corner of Chicago.
  In December 1998, Mr. Alcala pleaded guilty to two
counts: (1) conspiracy to affect commerce by threats of vio-
lence, 18 U.S.C. § 1951; and (2) using and carrying a firearm
during and in relation to a crime of violence, 18 U.S.C.
§ 924(c). Mr. Alcala was sentenced on December 10, 1998,
under the 1997 United States Sentencing Guidelines Manual.
The district court imposed a total sentence of 123 months’
imprisonment, including 63 months for the § 1951 convic-
tion and 60 months for the § 924(c) conviction. The sen-
tences were to run consecutively. The district court cal-
culated the § 1951 sentence by starting at a base offense
level of 18 and then adding four specific offense charac-
teristic enhancements: (1) express or implied threat of bodily
injury or death, U.S.S.G. § 2B3.2(b)(1); (2) the ability to carry
out a threat of bodily injury or death, U.S.S.G.
No. 02-2283                                                         3

§ 2B3.2(b)(3)(B); (3) bodily injury sustained by the victim,
U.S.S.G. § 2B3.2(b)(4)(A); and (4) abduction of a person to
facilitate commission of the offense, U.S.S.G. § 2B3.2(b)
(5)(A). Notably, the district court did not apply an enhance-
ment pursuant to U.S.S.G. § 2B3.2(b)(3)(A) for carrying
a firearm because Mr. Alcala had been convicted of the
separate § 924(c) conviction that required a consecutive
sentence. The enhancements imposed for the conspiracy
charge increased the offense level to 29, but three levels
were then subtracted for accepting responsibility to pro-
duce a total offense level of 26.


B. District Court Proceedings
  In March 2002, Mr. Alcala filed a motion to modify the
                                                         1
term of imprisonment pursuant to 18 U.S.C. § 3582(c)(2).
Mr. Alcala contended that, at the original sentencing
proceeding, he had been subject to double counting when


1
    The statute provides:
      (c) Modification of an imposed term of imprisonment.—The
      court may not modify a term of imprisonment once it has
      been imposed except that—
      ...
            (2) in the case of a defendant who has been sentenced to
            a term of imprisonment based on a sentencing range that
            has subsequently been lowered by the Sentencing
            Commission pursuant to 28 U.S.C. 994(o), upon motion
            of the defendant or the Director of the Bureau of Prisons,
            or on its own motion, the court may reduce the term of
            imprisonment, after considering the factors set forth in
            section 3553(a) to the extent that they are applicable, if
            such a reduction is consistent with applicable policy
            statements issued by the Sentencing Commission.
4                                                     No. 02-2283

the district court applied several enhancements to his ex-
tortion conviction and then imposed a consecutive sentence
for a violation of § 924(c). He believed that Amendment 599
to the sentencing guidelines, which was retroactive, ad-
dressed that problem and required a reduction in his
sentence. The district court denied the motion.
  The district court recognized that the statutory section
under which the motion was brought, 18 U.S.C. § 3582(c)(2),
permitted the district court to reassess a sentence when “a
defendant . . . has been sentenced to a term of imprisonment
based on a sentencing range that has subsequently been
lowered by the sentencing commission.” Turning to Mr.
Alcala’s contention, the district court held that Amendment
                                     2
599, amending Application Note 2 to § 2K2.4, did not aid
Mr. Alcala. In examining U.S.S.G. § 2K2.4, which addresses
convictions under 18 U.S.C. § 924(c), the district court noted
that, before Amendment 599, the Sentencing Commission
already had provided guidance for sentencing courts in
imposing a § 924(c) conviction when additional enhance-
ments for the underlying offense were also available. Under
that guidance, Application Note 2 to § 2K2.4 forbade the
application of any enhancements to the sentence for the
underlying offense when the enhancements sought to exact
punishment for discharging, using or possessing a firearm
or dangerous weapon during the commission of the under-
lying offense. Following that guidance, in the original
sentencing proceeding, the district court had not employed




2
  In the 2002 version of the Sentencing Guidelines, the text of this
note has been moved to Application Note 4. See U.S. Sentencing
Guidelines Manual § 2K2.4, cmt. n.4 (2002).
No. 02-2283                                                  5
                          3
U.S.S.G. § 2B3.2(b)(3)(A), which deals with offense charac-
teristics for the underlying offense of extortion, to enhance
Mr. Alcala’s sentence. Accordingly, because Mr. Alcala’s
contention that he had been subject to double counting was
groundless, the district court declined to modify the term of
his imprisonment.


                              II
                       DISCUSSION
  Mr. Alcala submits that the district court erred in failing
to modify his sentence based on Amendment 599. Noting
that this amendment is retroactive, he contends that all four
enhancements that were imposed in the calculation of his
sentence are impermissible because they involve substan-
tially the same harm as a § 924(c) conviction. The interpreta-
tion of the United States Sentencing Guidelines and amend-
ments presents a question of law that we review de novo.
See United States v. White, 222 F.3d 363, 372 (7th Cir. 2000).
The “commentary in the Guidelines Manual that interprets
or explains a guideline is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or
a plainly erroneous reading of, that guideline.” Stinson v.
United States, 508 U.S. 36, 38 (1993).
  The commentary to the Guidelines, § 2K2.4 as amended
by Amendment 599, instructs that, when a consecutive
§ 924(c) sentence “is imposed in conjunction with a sentence
for an underlying offense, [the sentencing court should] not
apply any specific offense characteristic for possession,


3
  This section enumerates specific offense characteristics and
their attendant enhancements when a firearm is discharged,
brandished, displayed, possessed, or otherwise used.
6                                                 No. 02-2283

brandishing, use or discharge of an explosive or firearm
when determining the sentence for the underlying offense.”
U.S.S.G. § 2K2.4, cmt. n.4 (2002). The commentary continues
on to explain that a sentence under § 924(c), § 2K2.4 of the
Guidelines, “accounts for any explosive or weapon enhance-
ment for the underlying offense of conviction, including any
such enhancement that would apply based on conduct for
which the defendant is accountable under § 1B1.3 (Relevant
Conduct).” Id.
  In our recent decision in Howard, we had occasion to ex-
plain at significant length the role of Amendment 599. We
wrote:
    Amendment 599 did not purport to incorporate the
    procedures of Amendment 489. Amendment 599 simply
    clarifies when a defendant should receive weapon
    enhancements for conduct other than the “underly-
    ing offense” when also convicted under § 924(c).
    Amendment 599 explains what conduct qualifies as the
    “underlying offense” and, correlatively, when “other
    offenses” fall outside the § 2K2.4 prohibition. It clarifies
    the definition of “underlying offense” to include rele-
    vant conduct. It also delineates “under what circum-
    stances defendants sentenced for violations of 18 U.S.C.
    § 924(c) in conjunction with convictions for other
    offenses may receive weapon enhancements contained
    in the guidelines for those other offenses.” U.S.S.G. app.
    C, amend. 599, reasons for amendment. These “other
    offenses” that do not qualify as “underlying offenses”
    may provide the basis of weapon enhancements.
United States v. Howard, No. 02-1024, slip op. at 13-14 (7th
Cir. 2003).
 Indeed, Mr. Alcala received the specific benefit of Amend-
ment 599, albeit in a manner different from the one he
No. 02-2283                                                7

suggests in his brief. The § 924(c) charge of which Mr.
Alcala was convicted identified the offense of kidnapping as
the underlying offense. Mr. Alcala, however, was not
convicted of kidnapping. The only other offense of which he
was convicted was conspiracy to commit extortion. How-
ever, the conspiracy to commit extortion was, under the
facts of this case, conduct closely related to the kidnapping
and, indeed, both the kidnapping and the extortion consti-
tuted substantially the same harm. Amendment 599 makes
clear that it would have been improper for the sentencing
court to apply a sentencing guidelines enhancement under
the extortion guideline for possession, brandishing, use or
discharge of a firearm simply because the § 924(c) count of
the indictment referenced the kidnapping charge rather than
the conspiracy to commit extortion.
  Accordingly, we must conclude that Mr. Alcala cannot
prevail on this motion under 18 U.S.C. § 3582(c)(2). He was
not “sentenced to a term of imprisonment based on a sen-
tencing range that has subsequently been lowered by the
Sentencing Commission.”
  Finally, we note that Mr. Alcala submits that the district
court erred during the original sentencing proceeding by
imposing sentencing enhancements based on his commit-
ting the underlying offense, conspiracy to commit extortion.
He claims that, although these enhancements were not
based specifically on his possessing, brandishing, using or
discharging a firearm, they were based on conduct so inti-
mately related to his possession of the firearm as to be
precluded under the commentary to sentencing guideline §
2K2.4. Indeed, the Government believes that one of his
claims is meritorious. Because we have determined that
Amendment 599 does not address these arguments, we may
not deal with them in this motion based on 18 U.S.C.
§ 3582(c)(2). We express no opinion as to the merits of these
8                                                   No. 02-2283

arguments or as to whether Mr. Alcala has any other avenue
of judicial or executive recourse available to him.


                          Conclusion
    Accordingly, the judgment of the district court is affirmed.
                                                      AFFIRMED

A true Copy:
         Teste:

                             _____________________________
                              Clerk of the United States Court of
                                Appeals for the Seventh Circuit




                      USCA-02-C-0072—12-19-03
