U.S. v. Devorkin

• Decision Date: 03 November 1998
• Docket Number: No. 97-30318,97-30318
• Citation: 159 F.3d 465
• Parties: 98 Daily Journal D.A.R. 11,353 UNITED STATES of America, Plaintiff-Appellee, v. Daniel Paul DEVORKIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 465

159 F.3d 465

98 Daily Journal D.A.R. 11,353

UNITED STATES of America, Plaintiff-Appellee, v. Daniel Paul DEVORKIN, Defendant-Appellant.

No. 97-30318.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 8, 1998.

Decided Nov. 3, 1998.

Michael Donahoe, Assistant Federal Defender, Helena, Montana, for defendant-appellant.

Richard A. Friedman, United States Department of Justice, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the District of Montana; Donald W. Molloy, District Judge, Presiding. D.C. No. CR-97-00016-1-DWM.

Before: CANBY and TASHIMA, Circuit Judges, and TAKASUGI, District Judge. ^*

TASHIMA, Circuit Judge:

Daniel Paul Devorkin pled guilty to a charge of solicitation of murder-for-hire in violation of 18 U.S.C. § 373 and was sentenced to a 108-month term of imprisonment. He appeals his sentence, contending that the statutory maximum term of imprisonment is five years, not 20 years, as the district court held. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1292, and we affirm.

I.

Devorkin, a Montana resident, contacted a confidential informant and asked him to kill Karen Ramsey, Devorkin's former spouse, who lived in Seattle, Washington. In return, Devorkin offered to kill the informant's former son-in-law. The informant contacted law enforcement officials and, after several monitored conversations with Devorkin, he introduced Devorkin to Special Agent Gunderson of the Bureau of Alcohol, Tobacco, and Firearms, who posed as a "hit man." At a motel in Montana, Devorkin gave Gunderson $500, one-half of the $1,000 price to commit the murder, and photographs of Ramsey. Devorkin was arrested at a second meeting with Gunderson at which Gunderson falsely told Devorkin that he had murdered Ramsey.

Devorkin eventually pled guilty to a charge of solicitation of a crime of violence in violation of 18 U.S.C. § 373(a). Under that section, whoever solicits another person with the intent that the person

engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against ... the person of another in violation of the laws of the United States ... shall be imprisoned not more than one-half the maximum term of imprisonment or ... if the crime solicited is punishable by life imprisonment or death, shall be imprisoned for not more than twenty years.

18 U.S.C. § 373(a). The underlying felony Devorkin solicited was murder-for-hire, under 18 U.S.C. § 1958. Section 1958 provides a sliding scale of punishment that depends on the outcome of the intended crime. If no injury occurs, the maximum term of imprisonment is 10 years. If personal injury results, the maximum sentence is 20 years' imprisonment. If death results, the offense is punishable by death or life imprisonment. See id.

Devorkin contends that since Ramsey was unharmed, the maximum sentence for violating § 373 is five years. He argues that the relevant maximum term of imprisonment under § 1958 is 10 years because Ramsey suffered no bodily injury as a result of the solicitation. Under this theory, one-half the maximum term for the underlying offense would be five years. The district court, while noting that Devorkin's interpretation of the statute was plausible, nonetheless agreed with the government that the correct interpretation of the statute called for a 20-year maximum sentence. We agree.

II.

The question of § 373's maximum sentence as applied to Devorkin is one of statutory interpretation, which is a question of law reviewed de novo. See United States v. Jarvouhey, 117 F.3d 440, 441 (9th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 866, 139 L.Ed.2d 764 (1998).

III.

Devorkin urges us to adopt a case-by-case, fact-based approach, under which the court would consider the actual result of the defendant's crime, rather than the crime solicited, to determine the maximum sentence. He first points out that §§ 373 and 1958 do not direct the sentencing court to assume that the murder occurred. Second, he argues that the legislative history of § 373 supports his interpretation. Third, he contends that the rule of lenity should apply because the statute is susceptible to two reasonable interpretations.

We begin with the statute's language. Section 373 uses as its reference point "the crime solicited." 18 U.S.C. § 373(a). For example, § 373 imposes a maximum sentence of 20 years if "the crime solicited" is punishable by life imprisonment or death. The maximum prison term for all other solicitations prohibited under § 373 is one-half of the prison term for "the crime solicited." Thus, § 373 does not instruct us to look at the actual sentence that would be imposed for the underlying violation according to the particular facts of each case. ¹

The structure of §§ 373 and 1958 buttresses our reading of the statute. The highest maximum sentence under § 373 is 20 years' imprisonment. See 18 U.S.C. § 373(a). Under § 1958, the maximum sentence is death or life imprisonment. See 18 U.S.C. § 1958(a). The government persuasively argues that Devorkin's interpretation would render § 373's 20-year maximum superfluous in the only cases to which Devorkin contends it should apply--those in which the solicitation results in death. For if the purported hit man had killed Ramsey, Devorkin could have been charged under § 1958 and 18 U.S.C. § 2, which provide for a sentence of death or life imprisonment, instead of under § 373, which provides a maximum sentence of only 20 years. Because, if the crime is completed and results in death, the solicitor would be charged with the completed, substantive crime solicited, § 373's maximum for crimes punishable by life imprisonment or death would never be used; this part of the statute would become a useless appendage. Thus, a categorical interpretation fits better within the statutory framework than Devorkin's interpretation.

The legislative history of § 373 also supports a categorical interpretation. The Senate Judiciary Committee's report clearly indicates that the provision was intended to reach persons who solicited crimes, but were unsuccessful, and that other provisions were in place to deal with the situation when the crime solicited was completed:

The Committee believes that a person who makes a serious effort to induce another person to commit a crime of violence is a clearly dangerous person and that his act deserves criminal sanctions whether or not the crime of violence is actually committed. The principal purpose of the new section is to allow law enforcement officials to intervene at an early stage where there has been a clear demonstration of an individual's criminal intent and danger to society. Of course, if the person solicited actually carries out the crime, the solicitor is punishable as an aider and abettor.

S.Rep. No. 98-225, at 308 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3487.

In sum, the language and structure of the statute, in conjunction with its legislative history, clearly confirm that Congress intended to provide a significant penalty for solicitation, even if the underlying crime was not brought to fruition.

Interpreting § 373 categorically is also in accord with the admittedly meager case law on this issue. We have previously reasoned that the court examines, not the result, but the defendant's intent, in determining whether a violation of § 373 has occurred. See United States v. Korab, 893 F.2d 212, 215 (9th Cir.1989) (noting that § 373 "requires a finding, not that a federal offense resulted, but that [the defendant] intended that acts constituting a federal offense result"). Although the issue of whether the statute has been violated differs from the question of the maximum authorized sentence, Korab indicates that in interpreting § 373, the court should look, not at the result of the underlying crime, but at the defendant's intended crime--that is, the crime solicited. ² See also United States v. Schmidt, 105 F.3d 82 (2d Cir.1997) (adopting a categorical approach to § 373 for solicitation of the murder of a federal officer under 18 U.S.C. § 1114, although without discussion). ³

Our categorical approach is also consistent with the interpretation of many sentence enhancement statutes. For example, in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the Supreme Court adopted a categorical approach to determine whether a prior offense is a "violent felony" for purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e). See Taylor, 495 U.S. at 600, 110 S.Ct. 2143. Under that provision, a defendant who has previously been convicted of a violent felony and who is found in possession of a firearm is subject to an enhanced sentence. See 18 U.S.C. § 922(e), (g). The Court declined to examine the underlying facts of Taylor's prior convictions; instead, it held that the sentencing court should follow "a formal categorical approach, looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions." Id. at 600, 110 S.Ct. 2143. We have followed this approach:

To discourage extensive fact-finding regarding past criminal activity, sentencing courts may only consider "the statutory definition of the crime, any conduct charged in the indictment or information, the defendant's guilty plea or plea agreement, and any jury instructions."

United States v. Wofford, 122 F.3d 787, 792 (9th Cir.) (quoting United States v. Wood, 52 F.3d 272, 275 (9th Cir.1995)), cert. denied, --- U.S. ----, 118 S.Ct. 233, 139 L.Ed.2d 164 (1997).

We have also applied the categorical approach to the Sentencing Guidelines' career offender provision, U.S.S.G. § 4B1.1. In United States v. Becker, 919 F.2d 568 (9th Cir.1990), we adopted Taylor 's categorical approach under U.S.S.G. § 4B1.1. We noted that, as in Taylor, the statute in question referred to a defendant's prior "convictions"...