
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-1773                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                     VITO DeLUCA,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                              _________________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Selya and Boudin, Circuit Judges.                                            ______________                              _________________________               Richard H. Wynn for appellant.               _______________               Brian  T. Kelly, Assistant United States Attorney, with whom               _______________          A. John  Pappalardo, United  States Attorney, was  on brief,  for          ___________________          appellee.                              _________________________                                  February 25, 1994                              _________________________                    SELYA, Circuit Judge.  This is another in the long line                    SELYA, Circuit Judge.                           _____________          of sentencing  appeals  that  march  beneath the  banner  of  the          federal  sentencing guidelines.1    The  appeal  poses  only  one          question:  Does a state conviction for extortion, under a statute          that defines  extortion more  broadly than  in  terms of  threats          against  a  person,  qualify  as  a  "crime  of  violence,"  and,          therefore, as a  sentence enhancing factor within the  purview of          U.S.S.G.   2K2.1(a)  (a  guideline which  provides  for  a higher          offense  level,   and,  consequently,   greater  punishment,   if          specified  offenses  are  committed  by a  person  with  a  prior          criminal record that includes at least one "crime  of violence")?          Like the district court, we answer this query in the affirmative.                                          I                                          I                    The facts relevant to  this appeal are not in  dispute.          On February 12, 1992, federal  agents armed with a warrant issued          as part of an ongoing  mail fraud investigation searched the home          of defendant-appellant  Vito DeLuca and  discovered approximately          five hundred  rounds of  live ammunition.   A federal  grand jury          thereafter indicted  appellant on  a charge of  being a  felon in          possession  of  ammunition,  see 18  U.S.C.     922(g)(1) (1990).                                       ___          Appellant pled guilty to this charge on April 20, 1993.                    At  sentencing, the  district  court embraced  U.S.S.G.                                        ____________________               1In  this instance, the  district court imposed  sentence on          June  23,  1993.    Hence,  the  November  1992  edition  of  the          guidelines applies.  See United States v. Lilly,  _ F.3d ___, ___                               ___ _____________    _____          n.2 (1st Cir. 1994) [No. 93-1577, slip op. at 3  n.2] (explaining          that  "[a] sentencing court customarily applies the guidelines in          effect on the date of  sentencing"); United States v. Harotunian,                                               _____________    __________          920 F.2d 1040, 1041-42 (1st Cir. 1990) (same).                                          2           2K2.1, the guideline covering unlawful possession of ammunition.          That guideline  dictates a higher  base offense level (BOL)  if a          defendant  has prior felony convictions  for "a crime of violence          or a controlled  substance offense."  Id.    2K2.1(a).   In 1977,                                                ___          DeLuca had  been convicted of  extortion in a Rhode  Island state          court.  To ascertain whether this  conviction constituted a crime          of   violence,  the   district  court  followed   the  Sentencing          Commission's internal cross-reference   U.S.S.G.  2K2.1, comment.          (n.5) refers  the reader to  U.S.S.G.  4B1.2 for a  definition of          "crime  of violence"    and  determined  that DeLuca's  extortion          conviction   came   within  the   indicated  definition.     This          determination   resulted   in   a  BOL   of   20,   see  U.S.S.G.                                                              ___           2K2.1(a)(4)(A) (providing  for an  enhanced BOL  if a  defendant          "has one prior  felony conviction of . . . a crime of violence"),          rather than 12, see id.  2K2.1(a)(7), and substantially increased                          ___ ___          the  guideline  sentencing  range applicable  to  DeLuca's  case.          Since   the  district  court  sentenced  within  the  range,  the          determination  adversely  affected  appellant's  sentence.   This          appeal ensued.                                          II                                          II                    In prosecuting  his  appeal,  DeLuca  presents  a  very          narrow issue.  He acknowledges that the imposition of sentence is          governed by  U.S.S.G.  2K2.1, and, through  cross-referencing, by          the definitions contained in U.S.S.G.  4B1.2.  He also admits the          authenticity  of the prior extortion conviction.  He nevertheless          challenges the classification of that prior conviction as a crime                                          3          of violence, saying that the  language of the state statute under          which he was charged, R.I. Gen.  Laws   11-42-2, places his prior          conviction outside the scope of the applicable definition.2                    When, as now, an appeal raises a  purely legal question          involving the proper interpretation of the sentencing guidelines,          appellate review is plenary.  See United States v. De Jesus,  984                                        ___ _____________    ________          F.2d 21, 22 n.4 (1st Cir. 1993); United States v. Fiore, 983 F.2d                                           _____________    _____          1, 2  (1st  Cir. 1992),  cert. denied,  113 S.  Ct. 1830  (1993);                                   _____ ______          United States v. St. Cyr, 977 F.2d 698, 701 (1st Cir. 1992).          _____________    _______                                         III                                         III                    A  crime of  violence  is defined  for purposes  of the          sentencing guidelines in the following manner:                    The  term  "crime   of  violence"  means  any                    offense under federal or state law punishable                    by imprisonment for a term exceeding one year                    that                      (i)  has  as  an  element the  use,  attempted  use, or                         threatened  use  of  physical  force  against  the                                        ____________________               2The state statute provides in pertinent part:                    Whoever, verbally  or by a written or printed                    communication,   maliciously   threatens   to                    accuse another of a crime or  offense or by a                    verbal or  written communication  maliciously                    threatens   any   injury   to   the   person,                    reputation, property  or financial  condition                    of another, or  threatens to engage in  other                    criminal  conduct  with   intent  thereby  to                    extort  money   or  any   unlawful  pecuniary                    advantage,  or  with  intent  to  compel  any                    person to do any act  against his will, or to                    prohibit any person from  carrying out a duty                    imposed by law shall be punished [as provided                    by law].          R.I. Gen.  Laws   11-42-2.   It has  not changed in  any material          respect since DeLuca was charged and convicted.                                          4                         person of another, or                    (ii) is burglary  of a  dwelling, arson,  or extortion,                         involves use of  explosives, or otherwise involves                         conduct that presents a  serious potential risk of                         physical injury to another.          U.S.S.G.  4B1.2(1).  "A formal categorical approach   an approach          that looks to a prior  offense's statutory provenance rather than          to  the actual  facts   is  the method of  choice for determining          whether a felony  constitutes a targeted crime within the meaning          of this definition."  De Jesus, 984 F.2d at 23; accord Fiore, 983                                ________                  ______ _____          F.2d at 3;  see also Taylor v.  United States, 495 U.S.  575, 600                      ___ ____ ______     _____________          (1990) (adopting  categorical approach  for similar  definitional          inquiry under the Armed Career  Criminal Act).  Thus, rather than          investigating  the  facts  and   circumstances  of  each  earlier          conviction,  an inquiring court,  in the usual  situation,3 looks          exclusively to the crime as the statute of conviction defined it;          or, put  another  way,  the  court examines  only  the  statutory          formulation of the  predicate crime in order to ascertain whether          that  crime is  a crime of  violence for purposes  of the federal          sentencing guidelines.                    Appellant accepts this body of  law.  But he strives to          persuade us that,  taking the required categorical  approach, his          prior  conviction cannot  be called  a  crime of  violence.   The                                        ____________________               3To  be sure,  there are  certain  limited circumstances  in          which  some investigation beyond identifying the formal nature of          the  charge may  be  warranted.   See  Taylor,  495  U.S. at  602                                            ___  ______          (outlining  circumstances   in  which   indictment  and-or   jury          instructions  may be  pertinent); De  Jesus, 984  F.2d at  23 n.5                                            _________          (same).   Here, however, we have been given nothing more than the          record of  conviction, and neither  side suggests that  we should          try to peer beyond it.                                          5          linchpin of this theory is the suggestion that all extortions are          not equal.  Even though the guideline identifies "extortion" as a          crime  of violence,  see U.S.S.G.   4B1.2(1)(ii),  that term,  in                               ___          appellant's  view,  only describes  crimes  that  involve threats          against the person of another.   Because the Rhode Island statute          sweeps  more  broadly    it encompasses,  in addition  to threats          against  the person, threats against the "reputation, property or          financial condition of another,"  R.I. Gen. Laws    11-42-2   his          Rhode  Island  crime  could  have  involved  a  threat,  say,  of          defamation, or  economic harm.   On this  view of  the sentencing          universe, the government, by leaving  the nature of the threat up          in the air, see supra note 3,  failed to prove that appellant had                      ___ _____          been convicted of a crime of violence.                    Although we give appellant high marks for ingenuity, we          are not persuaded.  We  have four principal reasons for rejecting          his thesis.                    First:   The relevant guideline  provision specifically                    First:                    _____          mentions extortion and, in the process, neither says nor  implies          that extortion, to  be cognizable, must involve a  threat of harm          to the person of another.  This presents a formidable obstacle to          appellant's  argument, for the wording  of the guideline tells us          unequivocally  that  the   Sentencing  Commission  believed  that          extortion,  by its  nature, should  be classified  as a  crime of                      __ ___  ______          violence.    A  defendant who  seeks  to  exclude a  specifically          enumerated  offense from the sweep of section 4B1.2 must shoulder          a heavy burden of persuasion.                                          6                    Appellant  seeks   to  carry  this  weighty  burden  by          positing that  the term  "extortion," as it  is used  in U.S.S.G.           4B1.2(1)(ii),   is  federal  in  character  and  has  a  single,          invariant meaning, rather than a meaning that  changes from state          to  state.   We agree.   See Taylor,  495 U.S. at  590-92 (ruling                                   ___ ______          that, for  purposes of the  Armed Career Criminal Act,  the place          where  the  offense  was committed  cannot  be  the determinative          factor  in identifying  predicate  offenses);  Dickerson  v.  New                                                         _________      ___          Banner Inst., Inc., 460 U.S. 103, 119-120 (1983) (explaining that          __________________          federal laws should not be construed in such a manner as  to make          their   application  depend  on  state  law,  absent  some  plain          legislative directive to that effect); United States v. Nardello,                                                 _____________    ________          393 U.S. 286, 293-94 (1969)  (recommending a similar approach  in          extortion cases); United States v.  Aymelek, 926 F.2d 64, 71 (1st                            _____________     _______          Cir. 1991) (rejecting state-law  characterization of prior  state          conviction for  purposes of  the federal  sentencing guidelines);          United  States v.  Unger, 915  F.2d 759,  762-63 (1st  Cir. 1990)          ______________     _____          (rejecting "the idea that state law determines whether an offense          runs afoul of [U.S.S.G.] section 4A1.2(c)(2)"), cert. denied, 498                                                          _____ ______          U.S.  1104 (1991).   Nonetheless,  we  disagree with  appellant's          related assertion  that extortion,  as that word  is used  in the          guideline, is limited  to the precise definitional  parameters of          the Hobbs Act, 18 U.S.C.   1951 (1988).4                                        ____________________               4Appellant  hawks the notion  that the relevant  language of          the Hobbs Act, criminalizing "the obtaining of property . .  . by          wrongful use of actual or threatened force, violence, or fear, or          under color of official right," 18  U.S.C.   1951, is limited  to          threats or  violence against  the person of  another.   The Ninth                                          7                    We  can envision  no sound  reason for  looking to  the          Hobbs  Act to  borrow a  definition of  a fairly  well understood          term.    In  the  first  place, terms  used  within  the  federal          sentencing  guidelines  and   not  specifically  defined  therein          generally should be given their  common usage.  See, e.g., United                                                          ___  ____  ______          States v. Butler, 988 F.2d 537, 542 (5th Cir.), cert. denied, 114          ______    ______                                _____ ______          S. Ct. 413 (1993); United States v. Jones, 979 F.2d 317,  320 (3d                             _____________    _____          Cir. 1992); United States v.  Abney, 756 F. Supp. 310, 313  (E.D.                      _____________     _____          Ky. 1990).  Taking this approach, it is clear beyond peradventure          that a conviction under R.I. Gen. Laws   11-42-2, which can aptly          be  described as a garden-variety extortion statute, comes within          the reach of U.S.S.G.  4B1.2(1)(ii).                    In the  second  place, even  if resort  to an  external          source  is  desirable  in  order  to  explicate  the  meaning  of          "extortion," we  think that,  rather than the  Hobbs Act    which          features extortion in  a special, circumscribed sense    a better          point  of reference  would be  section 223.4  of the  Model Penal          Code.5  This  definition is widely  accepted, see, e.g.,  Black's                                                        ___  ____                                        ____________________          Circuit seems  to have embraced this idea.   See United States v.                                                       ___ _____________          Anderson, 989 F.2d 310, 312-13 (9th Cir. 1993).          ________               5The  Model  Penal Code  defines  extortion as  purposefully          obtaining the property of another by threatening to:                    (1) inflict bodily injury on anyone or commit                    any other criminal offense; or                    (2) accuse anyone of a criminal offense; or                    (3) expose any secret  tending to subject any                    person to hatred, contempt or ridicule, or to                    impair his credit or business repute; or                    (4) take or withhold  action as an  official,                    or cause  an  official to  take  or  withhold                    action; or                                          8          Law Dictionary  585 (6th  ed. 1990), and  is consistent  with the          tenor of the  most closely analogous federal  crime, extortionate          extension of credit,  18 U.S.C.   891 (1988) (proscribing threats          of harm to "the person,  reputation, or property of any person");          see also  18 U.S.C.    876 (1988)  (proscribing, inter  alia, the          ___ ____                                         _____  ____          mailing of threatening  communications for extortionate  purposes          "to injure  the property  or reputation of  the addressee,  or of          another").   Hence, defining  extortion in  this commonsense  way          also   makes  it   clear  that   section  4B1.2(1)(ii)   subsumes          appellant's prior conviction.                    Second:  Even if we were  to look to the Hobbs Act,  as                    Second:                    ______          appellant importunes,  we believe  the "fear"  element under  the          Hobbs  Act can  be satisfied  by  threats other  than threats  of          bodily harm, say, by putting the victim in fear of economic harm.          See, e.g., United States v. Salerno, 868 F.2d 524, 531 (2d Cir.),          ___  ____  _____________    _______          cert. denied, 493 U.S. 811 (1989); United States v. Hathaway, 534          _____ ______                       _____________    ________          F.2d 386, 393-94  (1st Cir.), cert. denied, 429  U.S. 819 (1976);                                        _____ ______          United States v. DeMet,  486 F.2d 816, 819 (7th Cir. 1973), cert.          _____________    _____                                      _____          denied, 416 U.S. 969 (1974); United States v. Addonizio, 451 F.2d          ______                       _____________    _________                                        ____________________                    (5) bring about or continue a strike, boycott                    or other collective unofficial action, if the                    property is not demanded or  received for the                    benefit of  the group  in whose interest  the                    actor purports to act; or                    (6)   testify  or   provide  information   or                    withhold   testimony   or   information  with                    respect to another's legal  claim or defense;                    or                    (7) inflict any  other harm  which would  not                    benefit the actor.          Model Penal Code   223.4 (1980).                                          9          49, 72 (3d Cir. 1971), cert. denied, 405 U.S. 936 (1972).   Thus,                                 _____ ______          although the Rhode Island extortion statute does not  track, word          for  word, the  Hobbs Act  definition of  extortion, the  two are          sufficiently similar  both in  import and  application to  defuse          appellant's argument.                    Third:    We have  often  said that,  "[a]ll  words and                    Third:                    _____          provisions of statutes are intended to have meaning and are to be          given effect, and  no construction should be  adopted which would          render  statutory  words  or phrases  meaningless,  redundant  or          superfluous."   Lamore v.  Ives, 977 F.2d  713, 716-17  (1st Cir.                          ______     ____          1992); accord United States v. Ven-Fuel, Inc., 758 F.2d 741, 751-                 ______ _____________    ______________          52 (1st  Cir. 1985).    We think  that  this principle  is  fully          applicable to the sentencing guidelines, which, although they are          not statutes, are  to be construed in much the same fashion.  See                                                                        ___          United States v.  Shaw, 979 F.2d 41,  45 (5th Cir.  1992); United          _____________     ____                                     ______          States v. McGann, 960 F.2d 846, 847 (9th Cir.), cert. denied, 113          ______    ______                                _____ ______          S. Ct. 276  (1992); United States v. Castellanos,  904 F.2d 1490,                              _____________    ___________          1497 (11th Cir. 1990).  Appellant's spin on the word "extortion,"          as that  word is used  in section 4B1.2(1)(ii), would  reduce the          reference to mere  surplusage.  After all, a  different clause in          the same  guideline makes a  prior conviction for any  crime that                                                            ___          "has  as an element  the . .  . threatened use  of physical force          against the  person of  another" a crime  of violence.   U.S.S.G.           4B1.2(1)(i).  Thus,  were extortion defined  in the cramped  way          that appellant touts, the Sentencing Commission's inclusion of it          as a  specially enumerated offense  serves no purpose.   In other                                          10          words, if extortion is intended  to refer only to threats against          a person, it is totally redundant.                    Fourth:  We believe that appellant's reliance on United                    Fourth:                    ______                                           ______          States v.  Anderson, 989  F.2d 310 (9th  Cir. 1993),  is mislaid.          ______     ________          Anderson  involved  a  sentence imposed  under  the  Armed Career          ________          Criminal  Act, 18  U.S.C.    924(e) (ACCA).   The  Anderson court                                                             ________          relied  heavily on the fact that the defendant's prior conviction          was for an  attempt, not a completed act of extortion, see id. at                                                                 ___ ___          313, and found that  fact sufficient to remove the  case from the          integument  of the  ACCA, see  id.   Here, however,  it does  not                                    ___  ___          matter  whether one  calls  the crime  of which  appellant stands          convicted  "extortion"  or  "attempted  extortion."    Regardless          whether  an  attempt  counts  as  a  completed offense  for  ACCA          purposes,  the  sentencing guidelines  are  transpicuous on  this          point:  "The terms `crime of  violence' and `controlled substance          offense' include the offenses of aiding and abetting, conspiring,          and  attempting to  commit  such  offenses,"  U.S.S.G.     4B1.2,               __________          comment. (n.1) (emphasis  supplied).  Because "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 113 S.  Ct. 1913,                                _______     _____________          1915 (1993); see also United States v. Zapata, 1 F.3d 46, 47 (1st                       ___ ____ _____________    ______          Cir. 1993), we cannot follow Anderson in this case.6                                       ________                                        ____________________               6While precedent under the ACCA is often useful in resolving          questions anent  the career  offender guideline,  see Fiore,  983                                                            ___ _____          F.2d at 3; United States v. Bell, 966 F.2d 703, 705-06  (1st Cir.                     _____________    ____                                          11                                          IV                                          IV                    We need go no further.   Concluding, as we do, that the          lower  court  correctly  categorized  appellant's 1977  extortion          conviction   as  a   "crime  of   violence"   under  U.S.S.G.              2K2.1(a)(4)(A), we reject the appeal.          Affirmed.          Affirmed.          ________                                        ____________________          1992),  we  find  Anderson unhelpful  for  the  reasons explained                            ________          above.   And although  Anderson's holding appears  problematic on                                 ________          its own facts, we need not (and  do not) express an opinion as to          its correctness.                                          12
