Professional Documents
Culture Documents
_______________
A. John Pappalardo, United
___________________
appellee.
on brief,
for
_________________________
February 25, 1994
_________________________
extortion more
person,
therefore, as a
offense
specified
march
beneath the
The
banner
appeal
poses
of
the
only
one
that defines
U.S.S.G.
that
sentencing guidelines.1
question:
against
appeals
as
in
"crime
terms of
of
(a
and,
offenses
are
guideline which
consequently,
committed
provides
greater
by a
person
threats
violence,"
2K2.1(a)
level,
qualify
broadly than
for
purview of
a higher
punishment,
with
and,
if
prior
of violence")?
rounds of
thereafter indicted
possession
of
dispute.
of defendant-appellant
five hundred
discovered approximately
live ammunition.
appellant on
ammunition,
see 18
___
A federal
a charge of
U.S.C.
being a
grand jury
felon in
922(g)(1) (1990).
sentencing, the
district
court embraced
U.S.S.G.
____________________
That guideline
defendant
dictates a higher
or a controlled
DeLuca had
court.
of
substance offense."
been convicted of
violence,
the
Id.
___
district
"crime
the reader to
of violence"
court
conviction
came
determination
U.S.S.G.
and
determined
within
resulted
the
in
2K2.1(a)(4)(A) (providing
"has one prior
Since
guideline
the
for an
Island state
BOL
the
U.S.S.G.
Sentencing
2K2.1, comment.
4B1.2 for a
definition of
that DeLuca's
extortion
definition.
of
20,
enhanced BOL
see
___
if a
This
U.S.S.G.
defendant
sentencing
district
determination
followed
indicated
a
In 1977,
2K2.1(a).
extortion in a Rhode
if a
range applicable
court
adversely
sentenced
affected
to
within
DeLuca's
the
appellant's
case.
range,
sentence.
the
This
appeal ensued.
II
II
In prosecuting
narrow issue.
governed by
his
appeal,
presents
very
DeLuca
cross-referencing, by
4B1.2.
He nevertheless
Laws
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
III
A
crime of
violence
is defined
for purposes
of the
____________________
any material
person of another, or
4B1.2(1).
the actual
whether a felony
facts
an approach
the method of
of this definition."
F.2d at 3;
(1990) (adopting
categorical approach
the
facts
for similar
Criminal Act).
and
circumstances
an inquiring court,
in the usual
575, 600
definitional
each
earlier
situation,3 looks
another
way,
formulation of the
that
crime is
the
court examines
only
the
statutory
a crime of
of the federal
sentencing guidelines.
Appellant accepts this body of
persuade us that,
prior
law.
But he strives to
conviction cannot
be called
crime of
approach, his
violence.
The
____________________
of violence,
appellant's
see U.S.S.G.
___
view,
only describes
more
against
4B1.2(1)(ii),
broadly
that
in
involve threats
it encompasses,
in addition
to threats
crimes
that term,
Island
crime
defamation, or
could
have
economic harm.
involved
On this
11-42-2
threat,
view of
say,
his
of
the sentencing
We
his thesis.
First:
First:
_____
provision specifically
extortion,
violence.
that
by its
__ ___
A
the
threat of harm
unequivocally
implies
Sentencing
nature, should
______
defendant who
seeks
be classified
to
exclude a
believed
as a
that
crime of
specifically
enumerated
Appellant
positing that
seeks
the term
4B1.2(1)(ii),
is
to
carry
this
weighty
"extortion," as it
federal
in
is used
character
and
state.
that, for
where
factor
the
We agree.
See Taylor,
___ ______
purposes of the
offense
predicate
be
offenses);
single,
495 U.S. at
cannot
by
in U.S.S.G.
590-92 (ruling
was committed
in identifying
has
burden
the place
the determinative
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
their
application
depend
on
state
law,
absent
some
to make
plain
in
characterization of prior
state
conviction for
purposes of
United States v.
______________
the federal
Unger, 915
_____
F.2d 759,
sentencing guidelines);
762-63 (1st
Cir. 1990)
1104 (1991).
related assertion
Nonetheless,
we
that extortion,
guideline, is limited
disagree with
as that word
is used
appellant's
in the
parameters of
1951 (1988).4
____________________
We
can envision
Hobbs
Act to
term.
In
sentencing
borrow a
the
first
guidelines
no sound
definition of
place, terms
and
not
reason for
a fairly
used
looking to
well understood
within
specifically
common usage.
the
the
federal
defined
therein
States v. Butler, 988 F.2d 537, 542 (5th Cir.), cert. denied, 114
______
______
_____ ______
(E.D.
320 (3d
is
second
desirable
"extortion," we
Code.5
of reference
This
in
place, even
order
think that,
features extortion in
point
4B1.2(1)(ii).
to
if resort
explicate
to an
the
meaning
Hobbs Act
section 223.4
definition is widely
of the
external
of
which
a better
Model Penal
Black's
____________________
Circuit seems
Law Dictionary
tenor of the
585 (6th
18 U.S.C.
also
it
(proscribing, inter
_____
Hence, defining
makes
crime, extortionate
876 (1988)
the property
another").
with the
mailing of threatening
"to injure
is consistent
extension of credit,
see also
___ ____
clear
extortion in
that
section
alia, the
____
purposes
the addressee,
or of
this commonsense
4B1.2(1)(ii)
way
subsumes
Even if we were
appellant importunes,
Hobbs
Act can
we believe
be satisfied
by
the "fear"
threats other
element under
than threats
as
the
of
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
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).
_____ ______
although the Rhode Island extortion statute does not
for
word, the
Hobbs Act
sufficiently similar
definition of
both in
import and
Thus,
track, word
extortion, the
two are
application to
defuse
appellant's argument.
Third:
Third:
_____
We have
often
said that,
"[a]ll
words and
no construction should be
render
words
statutory
or phrases
meaningless,
redundant
or
superfluous."
Lamore v.
______
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
45 (5th Cir.
See
___
1992); United
______
States v. McGann, 960 F.2d 846, 847 (9th Cir.), cert. denied, 113
______
______
_____ ______
S. Ct. 276
word is used
reference to mere
the same
"has
surplusage.
guideline makes a
as an element
against the
4B1.2(1)(i).
the . .
person of
Thus,
After all, a
different clause in
another" a crime
crime that
of physical force
of violence.
reduce the
U.S.S.G.
in the cramped
way
serves no purpose.
In other
______
Anderson, 989
________
Anderson
________
involved
Criminal
Act, 18
relied
U.S.C.
under
924(e) (ACCA).
the
The
is mislaid.
Armed Career
Anderson court
________
of the
whether one
convicted
whether
attempt
counts
the
id.
___
of which
"attempted
as
it does
extortion."
are
not
appellant stands
completed offense
sentencing guidelines
Here, however,
the crime
"extortion"
an
purposes,
point:
sentence imposed
Cir. 1993),
was for an
matter
Regardless
for
ACCA
transpicuous on
this
attempting to
__________
commit
Manual that
authoritative
statute, or is
of, that
such
offenses,"
supplied).
interprets or
unless it violates
U.S.S.G.
4B1.2,
Because "commentary
explains
in the
a guideline
the Constitution or
is
a federal
guideline," Stinson v.
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
________
____________________
IV
IV
We need go no further.
lower
court
conviction
correctly
as
categorized
"crime
of
violence"
Affirmed.
Affirmed.
________
appellant's 1977
under
extortion
U.S.S.G.
____________________
1992),
we
find