UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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