17 F.3d 6 (1st Cir. 1994), 93-1773, United States v. DeLuca

Docket Nº:93-1773.
Citation:17 F.3d 6
Party Name:UNITED STATES of America, Appellee, v. Vito DeLUCA, Defendant, Appellant.
Case Date:February 25, 1994
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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17 F.3d 6 (1st Cir. 1994)

UNITED STATES of America, Appellee,


Vito DeLUCA, Defendant, Appellant.

No. 93-1773.

United States Court of Appeals, First Circuit

February 25, 1994

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Heard Jan. 3, 1994.

Richard H. Wynn, East Boston, MA, for appellant.

Brian T. Kelly, Assistant United States Attorney, with whom A. John Pappalardo, United States Attorney, Boston, MA, was on brief, for appellee.

Before BREYER, Chief Judge, SELYA and BOUDIN, Circuit Judges.

SELYA, Circuit Judge.

This is another in the long line 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. Sec. 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.


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. Sec. 922(g)(1) (1990). Appellant pled guilty to this charge on April 20, 1993.

At sentencing, the district court embraced U.S.S.G. Sec. 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. Sec. 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. Sec. 2K2.1, comment. (n. 5) refers the reader to U.S.S.G. Sec. 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. Sec. 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. Sec. 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.


In prosecuting his appeal, DeLuca presents a very narrow issue. He acknowledges that the imposition of sentence is governed by U.S.S.G. Sec. 2K2.1, and, through cross-referencing, by the definitions contained in U.S.S.G. Sec. 4B1.2. He also admits the authenticity of the prior extortion conviction. He nevertheless challenges the classification of that prior conviction as a crime of violence, saying that the language of the state statute under which he was charged, R.I.Gen.Laws Sec. 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);

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United States v. Fiore, 983 F.2d 1, 2 (1st Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1830, 123 L.Ed.2d 458 (1993); United States v. St. Cyr, 977 F.2d 698, 701 (1st Cir.1992).


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 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. Sec. 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, 110 S.Ct. 2143, 2159, 109 L.Ed.2d 607 (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 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. Sec. 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 Sec. 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 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.

Appellant seeks to carry this weighty burden by positing that the term "extortion," as it is used in U.S.S.G. Sec. 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, 110 S.Ct. at 2153-55 (ruling that, for purposes of the Armed Career

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Criminal Act, the place where the offense was...

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