United States Court of Appeals
For the First Circuit
No. 11-1971
UNITED STATES OF AMERICA,
Appellee,
v.
JASON P. FIUME,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lynch, Chief Judge,
Souter,* Associate Justice,
and Selya, Circuit Judge.
Neil L. Fishman on brief for appellant.
Margaret D. McGaughey, Assistant United States Attorney, and
Thomas E. Delahanty II, United States Attorney, on brief for
appellee.
February 22, 2013
*
Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
SELYA, Circuit Judge. The principal issue in this
sentencing appeal is one of first impression at the federal
appellate level. The appeal is premised on the notion that a two-
level enhancement to the defendant's guideline sentencing range
(GSR) under USSG §2A6.2(b)(1)(A), when superimposed upon a base
offense level dictated by USSG §2A6.2(a), constitutes an
impermissible exercise in double counting. Viewed through the
mists of distance, this notion possesses a patina of plausibility;
on closer examination, however, its weaknesses are apparent. We
hold that the use in tandem of a base offense level dictated by
§2A6.2(a), and an upward adjustment under §2A6.2(b)(1)(A), does not
constitute impermissible double counting. Consequently, we affirm
the sentence imposed below.
In June of 2010, defendant-appellant Jason P. Fiume was
found guilty in a New York court of assaulting his wife Megan and
sentenced to time served. At around the same time, the court
entered a protection order, which was to be effective through June
22, 2015. Pertinently, the protection order prohibited the
defendant from either approaching or communicating with Megan, and
put him on notice that it would be a federal offense to cross state
lines in order to violate these conditions.
Unfazed by the protection order, the defendant undertook
a course of conduct that flouted its terms. This conduct included
attempts to communicate with Megan by telephone, mail, e-mail, text
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message, and Facebook. His campaign was not limited to remote
communicative efforts; on July 2, 2010, he traveled to his in-laws'
home in Maine (where Megan was staying) and left a message for
Megan on a tree in the yard.
In due season, a federal grand jury returned an
indictment that charged the defendant with violating 18 U.S.C.
§ 2262(a)(1), (b)(5), a statute that, with some conditions,
criminalizes interstate travel with the intent to engage in conduct
that transgresses a court-imposed protection order.1 After the
defendant entered a guilty plea to this charge, the probation
department prepared a presentence investigation report (PSI
Report). The PSI Report recommended that the court start with a
base offense level of 18, derived from USSG §2A6.2(a) — a guideline
applicable to an array of crimes involving stalking or domestic
violence. It further recommended that the court add a two-level
enhancement because the offense of conviction involved the
violation of a court protection order, see id. §2A6.2(b)(1)(A);
another two-level enhancement for a pattern of activity involving
stalking, threatening, harassing, or assaulting the same victim,
see id. §2A6.2(b)(1)(D); and applied a three-level reduction for
acceptance of responsibility, see id. §3E1.1. These calculations,
1
The indictment also contained a stalking count, see 18
U.S.C. §§ 115, 2261(b)(5), 2261A(2)(B), which was later dismissed
and is of no moment here.
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in concert with the defendant's criminal history category (II),
yielded a GSR of 33-41 months in prison.
At the disposition hearing, the district court, over the
defendant's objections, accepted the guideline calculations limned
in the PSI Report and imposed a top-of-the-range sentence of 41
months. This timely appeal ensued.
In this venue, the defendant renews an objection that he
unsuccessfully made below: he argues that the two-level upward
adjustment for violation of a court protection order constitutes
impermissible double counting because the violation of a court
order was also an element of the offense of conviction. Where, as
here, we are dealing with a preserved claim of error, we review de
novo a sentencing court's interpretation and application of the
sentencing guidelines. See United States v. Leahy, 668 F.3d 18, 21
(1st Cir. 2012); United States v. Pho, 433 F.3d 53, 60-61 (1st Cir.
2006).
In the world of criminal sentencing, "double counting is
a phenomenon that is less sinister than the name implies." United
States v. Zapata, 1 F.3d 46, 47 (1st Cir. 1993). Such arithmetic
"is often perfectly proper." Id. After all, sentencing facts are
not found "in hermetically sealed packages, neatly wrapped and
segregated one from another." United States v. Lilly, 13 F.3d 15,
19 (1st Cir. 1994). Multiple sentencing adjustments may derive
from "the same nucleus of operative facts while nonetheless
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responding to discrete concerns." Id. Thus, in the absence of an
express prohibition, this court routinely has permitted a single
underlying fact to be used more than once when that fact bears upon
two separate sentencing considerations.2 See, e.g., United States
v. Chiaradio, 684 F.3d 265, 283 (1st Cir. 2012); United States v.
McCarty, 475 F.3d 39, 46-47 (1st Cir. 2007); United States v.
Wallace, 461 F.3d 15, 36 (1st Cir. 2006); United States v. Rivera-
Maldonado, 194 F.3d 224, 235 (1st Cir. 1999); Lilly, 13 F.3d at 17-
20; Zapata, 1 F.3d at 49-50.
These principles are dispositive here. Neither the
guideline provision about which the defendant complains, USSG
§2A6.2, nor its associated commentary contains any textual
proscription against the use of a two-level upward adjustment under
§2A6.2(b)(1)(A). That is an important datum because "the
guidelines themselves are the most helpful aid in the task of
separating permissible double counting from its impermissible
counterpart." Lilly, 13 F.3d at 19. Courts ordinarily should
interpret and apply the guidelines as written, see Zapata, 1 F.3d
at 47, and "[t]he Sentencing Commission has not been bashful about
2
We add that the use of the term "double counting" to refer
to permissible multiple uses of a single sentencing fact carries
with it the misleading suggestion that something unfair or improper
has occurred. For that reason, courts and lawyers would be well-
advised to use less pejorative language and to speak only of
"multiple use" when the guidelines permit a given sentencing fact
to be considered at more than one step in determining the total
offense level that fits a defendant's conduct.
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explicitly banning double counting in a number of instances,"
Lilly, 13 F.3d at 19; see United States v. Newman, 982 F.3d 665,
673 (1st Cir. 1992) ("[T]he Commission's awareness of the
sentencing excesses which flow from impermissible 'double counting'
is plainly reflected in other guideline application notes expressly
forbidding it." (emphasis in original)).3 Given the Commission's
proclivity for indicating when double counting is forbidden, we are
reluctant to infer further such instances out of thin air.
In all events, USSG §2A6.2 offers inhospitable ground for
such an inference. The sentencing guideline under which the
defendant's base offense level was set targets three separate types
of crimes and lumps them within the rubric of "Stalking or Domestic
Violence" offenses. Only one of this trio contains as an element
the violation of a court protection order. See 18 U.S.C. § 2261
(interstate domestic violence); id. § 2261A (interstate stalking);
id. § 2262 (interstate violation of a protection order). The most
logical conclusion, therefore, is that the defendant's base offense
3
Examples of explicit prohibitions against double counting
abound. See, e.g., USSG §2K2.1, comment. (n.8(A)) (instructing
against application of stolen firearm enhancement under certain
statutes of conviction "because the base offense level takes into
account that the firearm or ammunition was stolen"); id. §3A1.1,
comment. (n.2) (instructing against application of vulnerable
victim enhancement "if the factor that makes the person a
vulnerable victim is incorporated in the offense guideline"); id.
§3A1.3, comment. (n.2) (instructing against application of
restraint of victim enhancement "where the offense guideline
specifically incorporates this factor, or where the unlawful
restraint of a victim is an element of the offense itself").
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level accounts for the general nature of the offense of conviction
as one of stalking or domestic violence, but does not account
specifically for the violation of a court protection order; the
two-level upward adjustment under USSG §2A6.2(b)(1)(A) bridges the
gap and accounts for this feature of the defendant's crime. In
other words, the presence of section 2262 within USSG §2A6.2 must
be read in light of §2A6.2(b)(1)(A), which makes available, without
limitation, an enhancement for a violation of a protection order.
This is an endorsement of the enhancement, not a prohibition. That
is single counting, not double counting.
The able district judge appreciated this distinction. He
specifically noted, at the disposition hearing, that the Sentencing
Commission may have rationally intended to punish a stalking-type
offense more seriously where it simultaneously involved the
violation of a court order. He therefore applied the guidelines as
written and enhanced the defendant's offense level accordingly. We
discern no error. Cf. Newman, 982 F.3d at 674-75 (explaining that
"[t]he carefully calibrated offense level adjustment scheme
. . . would be disarranged" if defendant's purported double
counting were prohibited, "as the base offense level could not be
increased [] in response to" various types of assault).
If more were needed — and we doubt that it is — this
result is fortified by the penalty provisions of 18 U.S.C. §§ 2261
and 2261A. These statutes prescribe a special minimum punishment
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for cases involving violations of court orders. See id.
§ 2261(b)(6) ("Whoever commits the crime of stalking in violation
of a temporary or permanent civil or criminal injunction,
restraining order, no-contact order, or other order described in
[18 U.S.C. § 2266] . . . shall be punished by imprisonment for not
less than 1 year."); id. § 2261A (incorporating by reference the
penalty provisions of § 2261(b)).
The defendant advances yet another argument against the
sentence imposed. He claims for the first time on appeal that the
purported double-counting scheme subjects him to "punish[ment]
twice for the exact same crime" in violation of the Double Jeopardy
Clause. We review this new argument only for plain error. United
States v. Olano, 507 U.S. 725, 731-32 (1993); United States v.
Duarte, 246 F.3d 56, 60 (1st Cir. 2001).
The Double Jeopardy Clause, U.S. Const. amend. V, cl. 2,
"forbids successive prosecution and cumulative punishment for a
greater and lesser included offense," Brown v. Ohio, 432 U.S. 161,
169 (1977), such that a court may not impose multiple punishments
for what is essentially the same offense, id. at 165. Here,
however, the defendant stands convicted of only a single offense
and received only a single sentence. By no stretch of even the
most active imagination is the Double Jeopardy Clause implicated.
The defendant makes passing references to a gallimaufry
of other theories. He suggests, for example, that his sentence
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comprises cruel and unusual punishment, see U.S. Const. amend.
VIII, and violates the rule of lenity. Because these allusions are
ethereal and unaccompanied by any developed argumentation, we deem
them waived. See United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990).
We need go no further.4 For the reasons elucidated
above, we uphold the defendant's sentence.
Affirmed.
4
The government has argued that the challenged enhancement
could have been predicated on the violation of any of three other
protection orders issued against the defendant (none of which was
charged in the indictment). The district court did not rely upon
this reasoning, nor do we.
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