United States v. Deluca

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

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

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

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

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.

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