U.S. v. Byrd

• Decision Date: 23 January 1992
• Docket Number: No. 91-50578,91-50578
• Citation: 954 F.2d 586
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert John BYRD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 586

954 F.2d 586

UNITED STATES of America, Plaintiff-Appellee, v. Robert John BYRD, Defendant-Appellant.

No. 91-50578.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 4, 1991.

Decided Jan. 23, 1992.

D. Wayne Brechtel, Solana Beach, California, for the defendant-appellant.

Roger W. Haines, Jr., Asst. U.S. Atty., San Diego, Cal., argued (Linda F. Thome, U.S. Dept. of Justice, Washington, D.C., on the brief), for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before BROWNING, BOOCHEVER and REINHARDT, Circuit Judges.

PER CURIAM:

Robert John Byrd and his co-conspirators were responsible for three years of threatening, anti-Semitic telephone calls to a Jewish business owner in National City, California. Byrd pled guilty to one misdemeanor count of conspiring to interfere with federally protected activities, see 18 U.S.C. §§ 245, 371 (1988), and was sentenced to 10 months in prison. Byrd appeals his sentence, and we affirm.

The district court determined the Sentencing Guidelines [U.S.S.G.] section most applicable to Byrd's offense of conviction is § 2H1.3:

Use of Force or Threat of Force to Deny Benefits or Rights in Furtherance of Discrimination; Damage to Religious Real Property

(a) Base Offense Level (Apply the greatest):

(1) 10, if no injury occurred; or

(2) 15, if injury occurred; or

(3) 2 plus the offense level applicable to any underlying offense

....

Because Byrd made a telephone call threatening to harm the business owner and his wife, the district court found Byrd was responsible for an underlying offense covered by U.S.S.G. § 2A6.1 (Threatening Communications), which provides for a base offense level of 12. Since "2 plus the offense level applicable to" this underlying offense equals 14, the district court applied a base offense level of 14 to Byrd, pursuant to § 2H1.3(a)(3). Byrd disputes this calculation of a base offense level, arguing he should have received a base offense level of 10, pursuant to § 2H1.3(a)(1).

A

The first step in calculating a sentence under the Guidelines is to determine the section "most applicable to the offense of conviction." U.S.S.G. § 1B1.2(a). Byrd agrees the district court correctly selected § 2H1.3. Byrd argues, however, that because this section is the one most applicable to his offense of conviction, it was improper for the district court to look to the base offense level for any other Guidelines section. This argument rests on a misunderstanding of the Guidelines. Looking to the base offense level for an underlying offense was necessary to apply § 2H1.3(a) and entirely consistent with § 2H1.3 being the applicable section.

Byrd also argues that under § 1B1.2(a) he may not be punished based on a Guidelines section applicable to an underlying offense unless he has stipulated in his plea agreement to the facts necessary to prove the underlying offense. Section 1B1.2(a), however, governs only the initial selection of the Guidelines section most applicable to the offense of conviction. ¹ Byrd concedes the sentencing court performed this initial step correctly by selecting § 2H1.3.

Section 1B1.2(b) states: "After determining the appropriate offense guideline section pursuant to [§ 1B1.2(a) ], determine the applicable guideline range in accordance with § 1B1.3 (Relevant Conduct)." Section 1B1.3 (Relevant Conduct) provides that:

the base offense level where the guideline specifies more than one base offense level ... shall be determined on the basis of ... all acts and omissions committed ... by the defendant ... that occurred during the commission of the offense of conviction....

(emphasis added). Because § 2H1.3 specifies more than one base offense level, the sentencing court was required to select the appropriate base offense level on the basis of Byrd's relevant conduct.

Consideration of the threatening telephone call as an underlying offense was not in any way inconsistent with Byrd's plea agreement. The one-count information to which Byrd agreed to plead guilty describes the threatening phone call as an act performed in furtherance of the conspiracy. ² The Guidelines explain that "the offense of conviction" is "the offense conduct charged in the count of the indictment or information of which defendant was convicted," § 1B1.2(a), so the threatening telephone call was a part of Byrd's offense of conviction. Moreover, Byrd acknowledged during his plea allocution that he had made a threatening telephone call.

United States v. McCall, 915 F.2d 811 (2d Cir.1990), relied upon by Byrd, does not support his argument. In McCall, the court stated it was consistent with a plea agreement to look to a Guidelines section for an underlying offense based on the offense of conviction and facts alleged in the information. 915 F.2d at 815. The information in this case describes the threatening telephone call made by Byrd, and it was part of his offense of conviction. The enhancement of Byrd's sentence on the basis of underlying conduct did not deprive Byrd of the benefit of his plea bargain. By pleading guilty to a misdemeanor violation of 18 U.S.C. § 371, Byrd assured himself of a maximum sentence of one year. See United States v. Bos, 917 F.2d 1178, 1181 n. 2 (9th Cir.1990). The plea agreement offered no other guarantee as to sentence length, and Byrd stated during his plea allocution that he understood he could receive a sentence of up to one year in prison.

B

Byrd argues that making a threatening telephone call does not constitute an underlying offense covered by § 2A6.1 (Threatening Communications). Among the statutes to which § 2A6.1 applies is 18 U.S.C. §...