PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                      No. 99-4389
MANDEL TARIJ BROCK, a/k/a Shaheed
Shabazz,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Lynchburg.
James C. Turk, District Judge.
(CR-98-96)

Argued: February 28, 2000

Decided: April 13, 2000

Before WILKINS, MICHAEL, and KING, Circuit Judges.

_________________________________________________________________

Vacated and remanded by published opinion. Judge Wilkins wrote the
opinion, in which Judge Michael and Judge King joined.

_________________________________________________________________

COUNSEL

ARGUED: Sidney Harold Kirstein, MCRORIE & KIRSTEIN,
Lynchburg, Virginia, for Appellant. Sharon Burnham, Assistant
United States Attorney, Roanoke, Virginia, for Appellee. ON
BRIEF: Robert P. Crouch, Jr., United States Attorney, Roanoke, Vir-
ginia, for Appellee.

_________________________________________________________________
OPINION

WILKINS, Circuit Judge:

Mandel Tarij Brock appeals the sentence he received following his
plea of guilty to making repeated harassing interstate telephone calls.
See 47 U.S.C.A. § 223(a)(1)(E) (West Supp. 1999). Brock contends
that a two-level enhancement imposed by the district court pursuant
to U.S. Sentencing Guidelines Manual § 2A6.1(b)(2) (1998) was both
improper as a matter of law and unsupported by the evidence. We
conclude that the district court improperly applied the guidelines.
Accordingly, we vacate and remand for resentencing.

I.

Between October 29 and December 14, 1998, Brock made numer-
ous telephone calls from North Carolina to his former girlfriend,
Christel Dews, who was then living in Virginia. During that period,
Brock contacted or attempted to contact Dews by telephone at least
40 times. He was subsequently arrested and charged with two counts
of threatening to injure Dews in violation of 18 U.S.C.A. § 875(c)
(West Supp. 1999). Pursuant to a plea agreement, Brock waived
indictment and pled guilty to a one-count information alleging that he
had violated 47 U.S.C.A. § 223(a)(1)(E) by making repeated inter-
state telephone calls for the purpose of harassing (as opposed to
threatening) Dews. In the agreement, Brock acknowledged making
the calls and using "threatening words," but denied that he "actually
intend[ed] to threaten" Dews or that he"[took] any steps to carry out
any threat." J.A. 15.

The plea agreement contained many provisions relevant to Brock's
sentence, several of which are pertinent to this appeal. First, the par-
ties agreed that U.S.S.G. § 2A6.1 was the applicable guideline provi-
sion and that "[p]ursuant to § 2A6.1(a)(2), the base offense level is 6,
since the offense did not involve a true threat to injure a person or
property." Id. at 15. The agreement additionally provided that Brock
was subject to a two-level enhancement for violating a court protec-
tion order, see U.S.S.G. § 2A6.1(b)(3), and that the Government con-
ditionally agreed to recommend a two-level reduction for acceptance
of responsibility, see id. § 3E1.1(a). Brock acknowledged, however,

                    2
that the stipulations in the plea agreement were not binding on the dis-
trict court, which could "sentence up to the maximum provided by
law." J.A. 21. Finally, Brock agreed to the following waiver of his
appeal rights: "I am knowingly and voluntarily waiving any right con-
ferred by Title 18, United States Code, Section 3742, to appeal the
sentence determined by the court, except for an upward departure
from the guidelines or a factual finding that deviates from the factual
stipulations" relevant to the application of the guidelines, including
that the offense did not involve a "true threat" to injure a person or
property. Id. at 15, 19.

The presentence report (PSR) recommended a base offense level of
six pursuant to U.S.S.G. § 2A6.1(a)(2). It then suggested the addition
of two levels because Brock had made more than two threats, see
U.S.S.G. § 2A6.1(b)(2), and another two levels because the offense
involved the violation of a court protection order, see id.
§ 2A6.1(b)(3). The PSR thus arrived at an adjusted offense level of
ten. After awarding Brock a two-level reduction for acceptance of
responsibility, see id. § 3E1.1(a), the PSR recommended a total
offense level of eight. The PSR also recommended a criminal history
score of nine, placing Brock in Criminal History Category IV.

At sentencing, Brock objected, inter alia, to the two-level enhance-
ment for making more than two threats. The district court overruled
Brock's objections and adopted the recommendations of the PSR.
Brock's total offense level of eight, combined with his Criminal His-
tory Category of IV, resulted in a guideline range of 10-16 months.
The district court sentenced Brock to 14 months imprisonment and 12
months supervised release. Brock now appeals.

II.

Brock contends that the district court erred in imposing the two-
level enhancement for making more than two threats. Section 2A6.1
of the Sentencing Guidelines provides in relevant part:

          § 2A6.1. Threatening or Harassing Communications

          (a) Base Offense Level:

                    3
          (1) 12; or

          (2) 6, if the defendant is convicted of an
         offense under 47 U.S.C. § 223(a)(1)(C),
         (D), or (E) that did not involve a threat to
         injure a person or property.

         (b) Specific Offense Characteristics

           ....

          (2) If the offense involved more than two
         threats, increase by 2 levels.

           ....

U.S.S.G. § 2A6.1. Brock maintains that the addition of two levels
pursuant to § 2A6.1(b)(2) is legally inconsistent with selection of a
base offense level of six pursuant to § 2A6.1(a)(2).1 This is an issue
of guideline construction subject to de novo review. See United States
v. Payne, 952 F.2d 827, 828 (4th Cir. 1991).

As a purely textual matter, it appears contradictory for a district
court in selecting the base offense level to conclude that an offense
"did not involve a threat to injure a person or property," U.S.S.G.
§ 2A6.1(a)(2), and yet enhance that base offense level on the basis
that "the offense involved more than two threats," id. § 2A6.1(b)(2).
Closer examination is required, however, because under the guide-
lines the term "offense" takes on different meanings in different con-
texts. Thus, application of § 2A6.1(a)(2) could be compatible with an
enhancement under § 2A6.1(b)(2) if "offense" in § 2A6.1(a)(2) refers
_________________________________________________________________
1 Brock arguably waived this argument according to the terms of his
plea agreement. Nevertheless, the Government expressly elected not to
argue waiver with regard to this issue and we decline to determine
whether Brock waived the issue in the absence of argument by the par-
ties. See Latorre v. United States, 193 F.3d 1035, 1037 n.1 (8th Cir.
1999).

                       4
to the offense of conviction without including relevant conduct, while
"offense" in § 2A6.1(b)(2) includes relevant conduct.2

The guidelines define "offense" as "the offense of conviction and
all relevant conduct under § 1B1.3 (Relevant Conduct) unless a dif-
ferent meaning is specified or is otherwise clear from the context." Id.
§ 1B1.1, comment. (n.1(l)) (emphases added). Additionally, the
guidelines commentary instructs that

          [w]here there is more than one base offense level within a
          particular guideline, the determination of the applicable base
          offense level is treated in the same manner as a determina-
          tion of a specific offense characteristic. Accordingly, the
          "relevant conduct" criteria of § 1B1.3 are to be used, unless
          conviction under a specific statute is expressly required.

Id. § 1B1.2, comment. (n.2) (emphasis added); see also id. § 1B1.3,
comment. (n.6) (contrasting guidelines provisions that require a con-
viction under a specific statute for selection of the base offense level
with those that use a statutory reference to describe a particular set of
circumstances).

Section 2A6.1(a)(2) expressly requires conviction under 47
U.S.C.A. § 223(a)(1)(C), (D), or (E) in order for the base offense
level of six to apply. In that regard it resembles§ 2K2.1(a)(8), for
example, which provides that the base offense level should be six "if
the defendant is convicted under 18 U.S.C. § 922(c), (e), (f), (m), (s),
(t), or (x)(1)." U.S.S.G. § 2K2.1(a)(8); see also id. § 2K2.1(a)(6)(B)
(providing for a base offense level of 14 if the defendant "is convicted
under 18 U.S.C. § 922(d)"); id.§ 2S1.1(a)(1) (providing for a base
offense level of 23 if the defendant is "convicted under 18 U.S.C.
§ 1956(a)(1)(A), (a)(2)(A), or (a)(3)(A)"). Importantly, however,
§ 2A6.1(a)(2) differs from § 2K2.1(a)(8) and similar provisions
because the language in § 2A6.1(a)(2) requiring conviction under a
_________________________________________________________________
2 The term "offense" as it is used in § 2A6.1(b)(2)--which delineates
specific offense characteristics--clearly includes relevant conduct. See
U.S.S.G. § 1B1.3(a) (directing that "[u]nless otherwise specified, . . . spe-
cific offense characteristics . . . shall be determined on the basis of" rele-
vant conduct).

                     5
specified statute is followed by the modifying phrase "that did not
involve a threat to injure a person or property." Id. § 2A6.1(a)(2).
Based on our analysis of the statutory provisions cited in
§ 2A6.1(a)(2), we determine that, despite the requirement of convic-
tion under a particular statute, this modifying phrase indicates that rel-
evant conduct should be considered in determining whether the
appropriate base offense level is six.

47 U.S.C.A. § 223(a) provides in relevant part:

          Whoever--

          (1) in interstate or foreign communications--

           ...

           (C) makes a telephone call or utilizes a tele-
          communications device, whether or not con-
          versation or communication ensues, without
          disclosing his identity and with intent to
          annoy, abuse, threaten, or harass any person
          at the called number or who receives the com-
          munications;

           (D) makes or causes the telephone of
          another repeatedly or continuously to ring,
          with intent to harass any person at the called
          number; or

            (E) makes repeated telephone calls or
          repeatedly initiates communication with a
          telecommunications device, during which
          conversation or communication ensues, solely
          to harass any person at the called number or
          who receives the communication ...

          ...

          shall be fined under Title 18, or imprisoned not more than
          two years, or both.

                     6
47 U.S.C.A. § 223(a). None of the above-described offenses involves
the actual making of threats as a statutory element. 3 We conclude,
therefore, that the phrase "did not involve a threat to injure a person
or property" in § 2A6.1(a)(2) is a reference to relevant conduct,
because the only other reading--interpreting the phrase as a reference
to the elements of the offense of conviction--would render it super-
fluous. See United States v. Nordic Village, Inc., 503 U.S. 30, 36
(1992) (noting the "settled rule that a statute must, if possible, be con-
strued in such fashion that every word has some operative effect");
United States v. Bahhur, 200 F.3d 917, 927 (6th Cir. 2000) (stating
that normal rules of statutory construction apply in interpreting a
guidelines provision).

The language of § 2A6.1(a)(2) thus directs the district court to look
beyond the decision of the Government to charge a defendant under
47 U.S.C.A. § 223(a)(1)(C), (D), or (E) and consider relevant conduct
in determining the appropriate base offense level. Cf. U.S.S.G.
§ 1B1.2(a), (b) (directing that offense with which defendant is
charged determines applicable guideline section but relevant conduct
is used to determine appropriate sentencing range). This application
of relevant conduct furthers the Sentencing Commission's goal of cre-
ating a balance between a "real offense" and a"charge offense" sen-
tencing system.4 See id. Ch. 1, Pt. A, § 4(a), p.s.

Given that "offense" in both § 2A6.1(a)(2) and § 2A6.1(b)(2)
includes relevant conduct, we agree with Brock that a two-level
_________________________________________________________________
3 Of course, a defendant convicted pursuant to 47 U.S.C.A. § 223
(a)(1)(C), (D), or (E) may in fact have made threats, but the making of
threats is not required for a conviction. In particular, a defendant who
makes an anonymous telephone call with the intent to threaten the recipi-
ent violates § 223(a)(1)(C), irrespective of whether the call is completed
and the threat is made.

4 The use of relevant conduct mirrors pre-guidelines practice, in which
a sentencing judge could consider all factors relevant to sentencing. See
United States v. Castellanos, 904 F.2d 1490, 1494 (11th Cir. 1990). Con-
sideration of relevant conduct in addition to the elements of the charge,
i.e., the offense of conviction, lessens the impact on the ultimate sentence
of the Government's decision to charge a defendant under a particular
statutory section.

                     7
enhancement pursuant to § 2A6.1(b)(2) based on a finding that the
defendant made more than two threats to injure a person is incompati-
ble with selection of a base offense level of six pursuant to
§ 2A6.1(a)(2), because application of both provisions would require
the district court to make contradictory factual findings.5 We therefore
conclude that the district court improperly enhanced Brock's base
offense level pursuant to § 2A6.1(b)(2).6

An implication of our analysis is that a defendant whose relevant
conduct in violating 47 U.S.C.A. § 223(a)(1)(E) included at least one
threat to injure a person or property should be sentenced under
§ 2A6.1 using a base offense level of 12. If such a defendant made
more than two threats, it would be appropriate to enhance the base
offense level by two pursuant to § 2A6.1(b)(2). Here, however, the
Government did not cross-appeal the selection of base offense level
_________________________________________________________________
5 The Government argues that § 2A6.1(a)(2) and § 2A6.1(b)(2) are not
necessarily incompatible because § 2A6.1(a)(2) specifically references a
threat "to injure a person or property," while§ 2A6.1(b)(2) refers to
threats generally. Thus, the Government argues, it would not be inconsis-
tent to assign a base offense level of six pursuant to § 2A6.1(a)(2)
because there were no threats made to injure a person or property, and
then add two levels pursuant to § 2A6.1(b)(2) on the basis of a finding
that the defendant made more than two threats of another sort, for exam-
ple, to injure a person's reputation. This argument is irrelevant here
because the only threats Brock is alleged to have made were threats to
injure Dews.
6 Brock maintains in the alternative that the factual finding of the dis-
trict court that he made more than two threats was clearly erroneous.
Because we conclude that the enhancement was not legally permissible,
we need not address this argument.

Brock also contends that the district court erred in calculating his crim-
inal history score, see U.S.S.G. Ch. 4, Pt. A, maintaining that three points
were improperly added to his score based on a North Carolina assault
conviction that was vacated pending appeal. We decline to consider this
argument because, by the terms of the plea agreement, Brock waived the
right to appeal his sentence on this basis, and the Government has elected
to argue waiver with respect to this issue. See United States v. Marin,
961 F.2d 493, 496 (4th Cir. 1992) (holding that a knowing and voluntary
waiver in a plea agreement of the right to appeal a sentence will be
enforced).

                    8
six pursuant to § 2A6.1(a)(2), and Brock challenged only the applica-
tion of the two-level enhancement pursuant to § 2A6.1(b)(2). There-
fore, the only issue before us is whether the enhancement was
properly applied, given the selection of six for the base offense level.

III.

In sum, we conclude that a two-level enhancement pursuant to
U.S.S.G. § 2A6.1(b)(2) on the basis of a finding that the defendant
made more than two threats to injure a person may not consistently
be added to a base offense level of six selected pursuant to U.S.S.G.
§ 2A6.1(a)(2). Accordingly, we vacate Brock's sentence and remand
for resentencing without the improper enhancement.

VACATED AND REMANDED

                    9
