                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-5145


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

BEDRI KULLA,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:09-cr-00278-NCT-1)


Submitted:   May 18, 2011                     Decided:   June 9, 2011


Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Matthew G. Kaiser, THE KAISER LAW FIRM PLLC, Washington, D.C.,
for Appellant.   Ripley Rand, United States Attorney, Anand P.
Ramaswamy, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Bedri      Kulla        appeals    his   twelve-month        sentence      for

deprivation of rights under color of law, in violation of 18

U.S.C. § 242 (2006).                 Finding no error, we affirm.

               In   calculating             Kulla’s   offense     level,    the    district

court applied U.S. Sentencing Guidelines Manual (“USSG”) § 2H1.1

(a)(1) (2009), which instructed it to apply “the offense level

from     the    offense          guideline        applicable      to     any   underlying

offense.”           The    court        identified      the    underlying      offense        as

blackmail, and Kulla was therefore assigned a base offense level

of nine pursuant to USSG § 2B3.3(a).                        The base offense level was

increased by six levels because Kulla was a public official at

the time of the offense and the offense was committed under

color    of    law,       see    USSG       § 2H1.1(b)(1),      and    decreased    by    two

levels for acceptance of responsibility, see USSG § 3E1.1(a),

for a total offense level of thirteen.                            Kulla was placed in

Criminal History Category I, which yielded a Guidelines range of

twelve    to    eighteen         months.         Because      Kulla   was   subject      to    a

statutory      maximum          of    one    year,    the     Guidelines    range     became

twelve months pursuant to USSG § 5G1.1(c)(1).

               Kulla challenges the district court’s conclusion that

blackmail was an appropriate underlying offense for purposes of

USSG § 2H1.1(a)(1).                  He argues that he merely sought access to

the victim to pursue a romantic relationship with her, and that

                                                 2
his communication with the victim did not satisfy the elements

of blackmail because he did not demand a “thing of value” from

her.      In       assessing   a    sentencing    court’s    application         of   the

Guidelines, this court reviews its legal conclusions de novo and

its factual findings for clear error.                   United States v. Mehta,

594 F.3d 277, 281 (4th Cir. 2010), cert. denied, 131 S. Ct. 279

(2010).

               “‘Blackmail’ . . . is defined as a threat to disclose

a violation of United States law unless money or some other item

of value is given.”                USSG § 2B3.3, comment. (n.1); accord 18

U.S.C. § 873 (2006).           The words “thing of value” “are found in

so many criminal statutes throughout the United States that they

have   in      a    sense   become     words     of   art.     The   word    ‘thing’

notwithstanding,         the   phrase    is    generally     construed      to    cover

intangibles as well as tangibles.”                United States v. Girard, 601

F.2d 69, 71 (2d Cir. 1979).                    Within the context of various

criminal statutes, federal appellate courts have found diverse

intangible items to be “things of value.”                    See United States v.

Townsend, 630 F.3d 1003, 1011 (11th Cir.) (freedom from jail and

greater freedom while on pretrial release), petition for cert.

filed (Apr. 12, 2011); United States v. Moore, 525 F.3d 1033,

1047-48 (11th Cir. 2008) (sexual intercourse); United States v.

Marmolejo, 89 F.3d 1185, 1191 (5th Cir. 1996) (conjugal visits);

Girard, 601 F.2d at 71 (amusement, sexual intercourse or the

                                           3
promise       of    sexual       intercourse,       a     promise       to     reinstate         an

employee, an agreement not to run in a primary election, or the

testimony of a witness).

              Based on our review of the record, we agree with the

district court that the time and attention of Ms. Blanco, a

woman much younger than Kulla, was a “thing of value.”                                         Kulla

persisted in trying to secure Blanco’s attention, from giving

her flowers to threatening her with deportation.                                   As noted by

the    Government,           Kulla’s     actions        show    “that        he     effectively

bargained for [Ms. Blanco’s time and attention], which is an

indication         of   its     value    to   him.”        (Appellee’s            Br.    at     10).

Accordingly, we conclude that the district court did not err in

finding that blackmail was an appropriate underlying offense for

purposes of USSG § 2H1.1(a)(1).

              Kulla next argues that the district court erred in

referring      to       both    his     and   Ms.   Blanco’s          physical       appearance

before    imposing             his    sentence.            He     contends              that     the

attractiveness of the parties is not a permissible sentencing

consideration and that sentencing in federal court cannot turn

on the attractiveness of the people involved.                            Of course, Kulla

is    right    that      a     sentencing     judge      may    not     rely       on    physical

attractiveness in reaching a sentencing decision.                                   The record

reveals, however, that the district court merely commented on

the    relative         attractiveness        of    Kulla       and    his        victim       while

                                               4
conducting its “thing of value” analysis.          We find nothing in

the record to support Kulla’s contention that the district court

took either Kulla’s or Ms. Blanco’s physical appearance into

account   in   imposing   the   sentence   in   this   case.      Kulla’s

arguments in this regard are simply unfounded.

          Accordingly, we affirm Kulla’s sentence.             We deny as

moot the motion to expedite the decision.        We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would

not aid the decisional process.

                                                                 AFFIRMED




                                   5
