Case Information
*3
WARDLAW, Circuit Judge:
Eugene Darryl Temkin challenges the sufficiency of the evidence underlying his three counts of conviction for (1) solicitation to commit a crime of violence; (2) attempted extortion in violation of the Hobbs Act; and (3) use of interstate commerce facilities in the commission of murder-for-hire. Temkin also raises the defense of entrapment. While we conclude that sufficient evidence supports Temkin’s convictions and that Temkin was not entrapped, we agree with the Government that the district court materially erred in calculating the correct base offense level at sentencing. Accordingly, we affirm Temkin’s conviction but vacate his sentence and remand for resentencing.
I. Factual and Procedural Background This dark tale arises from a failed gambling venture in Equatorial Guinea, which was formed by two former drug trafficking associates, defendant Temkin, and his associate of more than twenty years, Michael Hershman. In 2000, Temkin mortgaged property to loan Hershman and another partner $500,000 as his stake in the gambling venture. When the venture failed in 2003, everyone lost their money, but Temkin also ultimately lost his mortgaged property. Temkin began demanding repayment of the loan, and became dissatisfied when Hershman sent him only about $1,000 a *4 week. In 2004, Temkin began a campaign of harassment and threats against Hershman to get his money back. Although Hershman ultimately returned the money through the settlement of a lawsuit in 2006, Temkin escalated his demands for the ever-increasing amounts of money he believed Hershman still owed him, bombarding Hershman with harassing and threatening phone calls and emails. Temkin next began “acting out” his obsession with getting even more money from Hershman. He broke into and emptied a Hershman family storage unit containing family possessions and financial documents, and tracked down Hershman’s hospitalized daughter by pretending to be her uncle. Temkin hacked into Hershman’s email account and computer, tracked his whereabouts in foreign countries, and personally threatened Hershman, at one point brandishing a .45-caliber gun at him.
Then Temkin got serious. He attempted to recruit associates to assist in extorting and murdering Hershman. In around 2006, Temkin suggested to Larry Morrison, a computer-savvy drug dealer who had helped hack Hershman’s computer to track him down in Belgium, that he poison Hershman. Having researched options to kill Hershman by poison, Morrison suggested instead that they use a poison that had an antidote—they could poison Hershman, extort his money, and then let him live; a proposition Temkin rejected out of hand. Before they could proceed on this course, Morrison was arrested for drug trafficking.
Temkin then turned to John Malpezzi, a former attorney convicted of drug trafficking, offering him money to kill Hershman. Malpezzi visited Hershman at his Dominican Republic gaming operation, and warned him of Temkin’s extortion/murder plan. Malpezzi and Hershman turned to an attorney for advice; the attorney advised Malpezzi to begin recording his conversations with Temkin. Malpezzi took the recordings to Los Angeles Sheriff’s Department detectives *5 6 U NITED S TATES V . T EMKIN who asked him to introduce Temkin to “Chet,” an undercover sheriff’s detective who would pose as a hitman.
On November 21, 2009, Malpezzi and Chet met with Temkin. Temkin had given “a great deal of thought” to killing Hershman, and he and Chet continued to meet over the next few months to work out a plan. Temkin proposed pushing Hershman off a boat hundreds of miles from shore or staging a “suicide.” At one point, Temkin also instructed Chet to rape Hershman’s wife and daughter, while Hershman and his son watched, in order to extort more money from Hershman.
The Sheriff’s Department apprised the FBI of the situation in December of 2009. The Sheriff’s Department indicated that Temkin had given Chet everything that a hitman would need except money, but they did not have enough to file charges without the exchange of money. Therefore, in March of 2010, the Sheriff’s Department and the FBI decided to “burn” the investigation by warning Temkin that they were aware of his interactions with a known hitman. Law enforcement informed Temkin that he was being watched and instructed him to leave Hershman and Hershman’s family alone.
In May 2010, after Temkin showed signs that he did not intend to follow these instructions, an undercover FBI agent, posing as a different hitman named “Pavel,” contacted Temkin. During the initial call, Temkin indicated that he may have secured the “services” of someone else, so Pavel agreed to call Temkin back in one week. On July 7, 2010, Pavel called Temkin and stated, “I understand that you may need my services after all.” Temkin responded, “Well strangely enough, yes.” Meeting the next day, July 8th, 2010, Temkin told Pavel to “very strongly persuade [Hershman and his business partner] to move the money from the Colombian account into my Montevideo account.” Temkin indicated that Pavel should force Hershman to transfer $15 million into Temkin’s bank account. Temkin gave Pavel an address for Hershman’s apartment in Spain, information about a bank account through which Pavel could transfer the money to Temkin, and copies of the intended victims’ passports. *6 Temkin also instructed Pavel that he wanted Hershman, Hershman’s wife, and Hershman’s business partner to “go for a very long boat ride. Yes. Out to sea.” Temkin gave Pavel $3,000 in cash to cover expenses, noting “[t]hat’s as much as I can move.” At the end of the meeting, Pavel said to Temkin, “I walk out [of] here, the job is done. They’re not going to come back from the trip. It’s all done. You understand that?” Temkin responded, “I understand that.”
After their July 8th meeting, Temkin left two voicemail messages for Pavel. In the first, left on the evening of July 8th, Temkin stated that “there is some strong interest” in him from law enforcement, and therefore they “might have to rethink.” In a second message left on the morning of July 9th, Temkin indicated, using coded language, that another plan “may work equally as well.” The calls went unreturned, and Temkin was arrested on July 14, 2010.
Following a bench trial, Temkin was convicted of three counts: (1) solicitation to commit a crime of violence under 18 U.S.C. § 373(a); (2) attempt to interfere with commerce by threats and violence under 18 U.S.C. § 1951(a); and (3) the use of interstate commerce facilities in the commission of murder-for-hire under 18 U.S.C. § 1958(a) (“murder-for- hire”). The district court sentenced Temkin to six years of imprisonment and three years of supervised release. In this timely appeal, Temkin challenges the sufficiency of the evidence for all three counts and argues that he was entrapped. In a cross-appeal, the Government challenges the sentence imposed by the district court as both procedurally and substantively unreasonable.
II. Jurisdiction and Standard of Review
We have jurisdiction to review Temkin’s conviction and
sentence under 18 U.S.C. § 3742(b) and 28 U.S.C. § 1291.
Following a bench trial, a district court’s conclusions of law
are reviewed de novo and findings of fact are reviewed for
clear error.
OneBeacon Ins. Co. v. Haas Indus., Inc.
,
III. Conviction
A. Solicitation of a Crime of Violence Under Count 1, Temkin was convicted of solicitation to commit a crime of violence, namely murder-for-hire. Temkin argues that there was insufficient evidence to establish that he “actually intended that Pavel kill Hershman.” Temkin first argues that he created a condition precedent at his July 8, 2010 meeting with Pavel. Temkin asserts he knew that this condition precedent would never be satisfied, and thus there was insufficient evidence of his intent to go through with the murder. Second, Temkin argues that even if there were sufficient evidence to establish a plan to kill Hershman, he later abandoned that plan in his July 8th and 9th voicemails for Pavel. The district court rejected both arguments, finding that “[a]t the July 8th meeting, the defendant just reached a boiling point and crossed the line.” The district court found that during that meeting “the defendant knowingly solicited, commanded, induced or otherwise persuaded another to travel in interstate or foreign commerce to commit murder for hire.” Sufficient evidence supports the district court’s findings and verdict.
1. Condition Precedent
At the outset of the July 8, 2010 meeting, Temkin stated that he planned to check with a “relative who’s ex-FBI” that evening to determine the FBI’s “level of interest” in him. Temkin characterizes this statement as creating “a condition precedent that he knew would never be satisfied.” However, as the district court correctly reasoned, the remainder of the meeting and Temkin’s subsequent voicemails confirm that Temkin and Pavel reached a concrete deal during this meeting.
Immediately after Temkin said he planned to check with
his ex-FBI relative, Pavel said he normally does one meeting
only and then “get[s] it done” with a “success rate [of]
100%.” To this, Temkin responded: “Perfect. Well, I need
it done.” Temkin did not express any contingencies or
*8
10
U NITED S TATES V . T EMKIN
reservations. While he did express a desire to check with his
ex-FBI relative, his statement to that effect could be
understood as indicating that he planned to do so as a
precaution meant to avoid detection by law enforcement.
Then, during the meeting, Temkin provided Pavel with an
address for Hershman’s Southern Spain apartment,
information about a bank account for transferring the
extortion money, and copies of the intended victims’
passports. Temkin also instructed Pavel that the extortion
money should be moved into his Montevideo account, and
that the victims should be taken on a boat ride and lost at sea.
Pavel, in turn, advised Temkin that the job would be done
when he left and confirmed that Temkin understood. Thus,
Temkin’s argument that the only permissible finding was that
checking with his ex-FBI relative was “a condition precedent
that he knew would never be satisfied” is unpersuasive. The
evidence is sufficient to allow any rational trier of fact to
find, beyond a reasonable doubt, that Temkin intended at the
July 8th meeting that Pavel kill Hershman.
See Jackson
,
2. Abandonment
Next, Temkin argues that even if there were sufficient evidence of his intent to solicit murder based on the July 8th meeting, in his subsequent voicemails he abandoned the plan. The “voluntary and complete renunciation” of criminal intent is an affirmative defense to the charge of solicitation. 18 U.S.C. § 373(b). Section 373(b) provides, however, that “[a] renunciation is not ‘voluntary and complete’ if it is motivated in whole or in part by a decision to postpone the commission of the crime until another time or to substitute another victim or another but similar objective.” Id. *9 Temkin failed to meet his burden of proving a voluntary and complete renunciation “by a preponderance of the evidence.” Id. The district court correctly found that the July 8th and 9th voicemails indicate Temkin’s desire to avoid detection by law enforcement and, at most, a decision to delay—not to stop—the murder-for-hire. Viewing this evidence in the light most favorable to the prosecution, Jackson , 443 U.S. at 319, sufficient evidence supports the district court’s rejection of Temkin’s renunciation defense.
B. Interference with Commerce by Threats or Violence The Hobbs Act provides: “Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by . . . extortion or attempts or conspires so to do, . . . shall be fined under this title or imprisoned not more than twenty years, or both.” 18 U.S.C. § 1951(a). Section 1951(b)(2) defines extortion as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” Under Count 2, Temkin was convicted of knowingly attempting “to intentionally obstruct, delay, and affect commerce, and the movement of articles and commodities in commerce, by extortion” in violation of the Hobbs Act. See 18 U.S.C. § 1951(a).
Sufficient evidence supports
the district court’s
conclusion that Temkin took a substantial step toward
carrying out his plan to extort and kill Hershman. While
Temkin argues that he did not take a substantial step toward
extortion because his plan was based on fictions invented by
Malpezzi, factual impossibility is not a defense to an inchoate
offense, such as the attempt for which Temkin was convicted.
See United States v. Fleming
,
Sufficient evidence also supports the district’s court’s
conclusion that interstate commerce “would have been
affected in some way” by Temkin’s acts. To prove that
interstate commerce would have been affected for purposes
of the Hobbs Act, “the government need only establish that
a defendant’s acts had a
de minimis
effect on interstate
commerce.”
United States v. Lynch
,
C. Murder-for-Hire
Under Count 3, Temkin was convicted of using interstate commerce facilities in the commission of murder-for-hire under 18 U.S.C. § 1958(a). The statute includes, as an element, that a defendant “travel[] in or cause[] another (including the intended victim) to travel in interstate or foreign commerce, or use[] or cause[] another (including the intended victim) to use the mail or any facility of interstate or foreign commerce, with intent that a murder be committed.” 18 U.S.C. § 1958(a). Sufficient evidence supports the district court’s conclusion that Temkin’s July 7, 2010 phone call with Pavel satisfies this requirement.
[1] Temkin raises two additional arguments in connection with Count 2 of the indictment, both of which are meritless. First, Temkin argues that Count 2 is “fatally flawed” because it added the words “hire an individual,” which are not included in the statute. The insertion of these words could not have interfered with Temkin’s understanding of the *11 elements of the charged offense. See United States v. Woodruff , 50 F.3d 673, 676 (9th Cir. 1995) (“[A]n indictment is sufficient if it sets forth the elements of the charged offense so as to ensure the right of the defendant not to be placed in double jeopardy and to be informed of the offense charged.”). If anything, Temkin was more informed of the charge against him due to the added words. Temkin also argues that there is no federal jurisdiction over Count 2 because his conduct could not have affected commerce in the United States. As explained above, Temkin’s threatening and harassing activities—phone calls, paying money to Pavel, and use of the internet—easily satisfy the interstate commerce requirement of the federal statute.
The July 7th telephone call qualifies as use of a facility of
interstate commerce.
See
18 U.S.C. § 1958(b)(2);
United
States v. Nader
,
D. Entrapment
The district court properly rejected Temkin’s entrapment defense:
When a defendant asserts an entrapment defense, the government must prove beyond a reasonable doubt that he was not entrapped by showing either: (1) the defendant was predisposed to commit the crime before being contacted by government agents; or (2) the defendant was not induced by the government agents to commit the crime.
United States v. Mejia
,
U NITED S TATES V . T EMKIN
15
a matter of law, de novo, we defer to credibility
determinations made by the factfinder, unless, viewing the
evidence in the light most favorable to the government, no
reasonable factfinder could have concluded the defendant was
either predisposed or not induced to commit the charged
offenses.
See United States v. Si
,
The district court correctly found that Temkin was predisposed to commit the charged crimes, in part, because of “the way he dealt with Malpezzi, and the way he acted with ‘Chet,’ the first hitman.”
In evaluating predisposition, we consider five factors: (1) the character and reputation of the defendant; (2) whether the government made the initial suggestion of criminal activity; (3) whether the defendant engaged in the activity for profit; (4) whether the defendant showed any reluctance; and (5) the nature of the government’s inducement.
United States v. Jones
,
Long before Temkin came into contact with either the
Sheriff’s Department or FBI undercover hitmen, Temkin
became obsessed with getting even more money than
Hershman owed him. Temkin stole from Hershman’s storage
unit and fraudulently gained
information regarding
Hershman’s hospitalized daughter. As the district court
noted, Temkin “is no stranger to law breaking as evidenced
by the breaking into the storage facility.” Temkin initiated
his first plan, to have Morrison poison Hershman, a plan
interrupted by Morrison’s arrest. Temkin then offered money
to Malpezzi to kill Hershman. Unbeknownst to Temkin,
*13
Malpezzi, reluctant to participate in Temkin’s murder-for-hire
scheme, recorded their conversations and gave the recordings
to the Sheriff’s Department. It was only then that first “Chet”
and then “Pavel” entered the picture. But, with their
appearance on the scene, Temkin remained in charge of the
plan, giving detailed instructions, and acting more urgently.
In an early meeting, Temkin instructed Chet that he wanted
Hershman killed and his family taken “as leverage.” Temkin
admitted he had given this plan “a great deal of thought.” At
one point, Temkin instructed Chet to rape Hershman’s wife
and daughter while Hershman and his son watched. Temkin
again took the lead in planning the extortion and murder in
his meetings with Pavel. Temkin did not show any reluctance
to engage in criminal activity.
See United States v.
McClelland
,
Law enforcement not only did not initiate the extortion and murder plot; they became involved only when it appeared that Temkin was taking substantial steps toward carrying it out. Moreover, besides revenge for a perceived wrong, Temkin was determined to carry out this scheme to obtain money, even after he had been repaid his initial loan. Because the district court correctly found that Temkin was predisposed to commit the crimes charged, we need not address inducement. See United States v. Williams , 547 F.3d 1187, 1197–99 (9th Cir. 2008). Sufficient evidence supports the district court’s rejection of Temkin’s entrapment defense. IV. Procedural Sentencing Error The district court sentenced Temkin to six years of imprisonment and three years of supervised release on each of his three counts of conviction, to be served concurrently. The district court, relying on the guidance of the Probation Office, calculated an offense level of 32 under U.S.S.G. § 2E1.4(a)(1), which governs the sentencing range for murder-for-hire. However, Temkin’s correct offense level is 37 under U.S.S.G. § 2A1.5, which governs the sentencing range for conspiracy or solicitation to commit murder. The district court materially erred by using an offense level of 32, rather than 37, to calculate Temkin’s sentencing range under the Guidelines.
A. Base Offense Level for Count 1 *14 In Count 1, Temkin was convicted of soliciting a crime of violence under 18 U.S.C. § 373. [2] Appendix A to the Guidelines provides the offense guideline sections that are applicable to the statute of conviction. See U.S. Sentencing Guidelines Manual 541–63 (2010). The base offense level for a violation of 18 U.S.C. § 373 is dictated by either U.S.S.G. § 2A1.5 or § 2X1.1. Id. at 546. Section 2A1.5 governs “Conspiracy or Solicitation to Commit Murder.” Section 2X1.1 governs solicitation offenses not covered by other specific offense guidelines.
[2] The parties agree that Count 2, attempted extortion in violation of the Hobbs Act, yields a lower base offense level than does either Count 1 or Count 3. To determine the offense level applicable to Temkin’s group of offenses, the court must determine the count with the highest base offense level. U.S.S.G. § 3D1.3(a). Therefore, we discuss calculation of the base offense level for only Counts 1 and 3.
In Count 1, the “crime of violence” Temkin was convicted of soliciting was murder-for-hire in violation of 18 U.S.C. § 1958(a). Solicitation to commit murder-for-hire is a solicitation offense not specifically covered by its own Guidelines section. Thus, U.S.S.G. § 2X1.1 is the correct starting point for Count 1. Section 2X1.1 provides that the base offense level from the guideline for the “substantive offense” should be used to calculate the offense level. Section 2X1.1, Application Note 2 defines “substantive offense” as “the offense that the defendant was convicted of soliciting, attempting, or conspiring to commit,” here, 18 U.S.C. § 1958(a). Appendix A to the Guidelines indicates that U.S.S.G. § 2E1.4 applies to determine the sentencing range for a conviction under 18 U.S.C. § 1958. U.S. Sentencing Guidelines Manual 554 (2010). Thus U.S.S.G. § 2E1.4 controls the base offense level for Count 1.
The Government argues that the applicable Guidelines section for determining the base offense level for Count 1 is U.S.S.G. § 2A1.5, which covers “Conspiracy or Solicitation to Commit Murder.” However, Temkin was not convicted of solicitation to commit murder. Temkin was convicted of solicitation to commit murder-for-hire in violation of 18 U.S.C. § 1958, and no Guidelines section expressly covers solicitation to violate 18 U.S.C. § 1958. While it is true that Temkin’s underlying conduct in Count 1 would include solicitation to commit murder, U.S.S.G. § 2X1.1 instructs courts to look to the underlying “substantive offense” and not the underlying unlawful conduct.
Thus, in line with the Probation Office’s instructions and the district court’s analysis, U.S.S.G. § 2X1.1, which in turn leads to U.S.S.G. § 2E1.4, guides the base offense level calculation for Count 1. Section 2E1.4 is also the applicable Guidelines section for determining the sentencing range for Count 3.
B. Base Offense Level for Count 3 Under Count 3, Temkin was convicted of using interstate commerce facilities in the commission of murder-for-hire, in violation of 18 U.S.C. § 1958. As for Count 1, Appendix A to the Guidelines indicates that U.S.S.G. § 2E1.4 supplies the applicable base offense level for sentencing. U.S. Sentencing Guidelines Manual 554 (2010). Section 2E1.4(a) provides that the base offense level is the greater of “(1) 32; or (2) the offense level applicable to the underlying unlawful conduct.” Section 2E1.4, unlike U.S.S.G. § 2X1.1, instructs courts to apply the offense level applicable to the underlying unlawful conduct , not the underlying substantive offense. Accordingly, the district court erred by using the base offense level of 32 set forth in U.S.S.G. § 2E1.4(a)(1). The district court should have used the cross-referencing provision in U.S.S.G. § 2E1.4(a)(2), because the unlawful conduct underlying Temkin’s murder-for-hire conviction was solicitation to commit murder, which yields an offense level greater than 32. Under U.S.S.G. § 2A1.5, the base offense level for solicitation to commit murder is 33, plus a 4-level enhancement for the exchange of money. Thus, the correct offense level for Temkin’s conviction is 37.
In 2004, U.S.S.G. § 2A1.5 was amended as part of an effort to increase the penalty for homicide offenses; the base offense level for conspiracy or solicitation to commit murder *16 20 U NITED S TATES V . T EMKIN was increased from 28 to 33. [3] However, U.S.S.G. § 2E1.4, which falls in the category of “offenses involving criminal enterprises and racketeering,” remained unchanged. Before the 2004 amendments, solicitation to commit murder involving the exchange of money resulted in an offense level of 32 under U.S.S.G. § 2A1.5. Section 2A1.5 set forth a base offense level of 28 and provided a 4-level enhancement for the exchange of money. The offense level for the use of interstate commerce facilities in the commission of murder- for-hire under U.S.S.G. § 2E1.4(a)(1) was also 32. However, after the 2004 amendments, the offense level for solicitation to commit murder involving the exchange of money jumped to 37 under U.S.S.G. § 2A1.5, which set forth the new base offense level of 33, and, as before, added the 4-level enhancement for the exchange of money. The two subsections of U.S.S.G. § 2E1.4(a) enable the Guidelines section to keep pace with changes to U.S.S.G. § 2A1.5, while also maintaining a floor base offense level of 32. That is, U.S.S.G. § 2E1.4(a)(1) ensures the base offense level does not drop below 32, while U.S.S.G. § 2E1.4(a)(2) keeps pace with changes to U.S.S.G. § 2A1.5 and related Guidelines sections by incorporating the offense level applicable to the underlying unlawful conduct.
While we have not addressed the interplay between U.S.S.G. § 2A1.5 and U.S.S.G. § 2E1.4 since the 2004 amendments to the Guidelines, two of our sister circuits have. In United States v. Vasco , the defendant, like Temkin, was convicted of using interstate commerce facilities in the [3] See U.S. S ENTENCING C OMMISSION , Amendments to the Sentencing Guidelines 6–7 (May 10, 2004), http://www.ussc.gov/sites/default/ f i l e s/pd f/amend ment-p r o cess/r ead er -fr i e n d l y- a me n d me n t s / 20040430_RF_Amendments.pdf.
commission of murder-for-hire in violation of 18 U.S.C.
§ 1958.
[t]he reference in § 2E1.4 to a [base offense level] of the greater of thirty-two or ‘the offense level applicable to the underlying conduct’ is curious, as virtually every time a defendant is charged with the use of interstate commerce facilities in the commission of murder-for-hire, the underlying unlawful conduct will be solicitation to commit murder.
Id. at 23. Nonetheless, the court concluded that “[w]e see no impropriety in the district court’s having used the cross-reference” in U.S.S.G. § 2E1.4(a)(2). Id.
In
United States v. Dotson
, the defendant was also
convicted of violating 18 U.S.C. § 1958 and was sentenced
using an offense level of 37.
argued that the cross-reference in U.S.S.G. § 2E1.4(a)(2)
“should be applied only if the crime encompassed ‘underlying
unlawful conduct’
in addition to
that required to violate
18 U.S.C. § 1958.”
Id.
The Eighth Circuit rejected this
argument, noting that it “is contrary to the plain language of
§ 2E1.4(a), which does not contain an additional conduct
requirement.”
Id.
;
see also United States v. Smith
, 755 F.3d
645, 647 (8th Cir. 2014). The Eighth Circuit held that the
district court did not err in calculating an offense level of 37.
Dotson
,
We agree with the First and Eighth Circuits; the best
interpretation of U.S.S.G. § 2E1.4(a) is its plain meaning.
Section 2E1.4(a) instructs the use of the greater of “(1) 32; or
(2) the offense level applicable to the underlying unlawful
conduct.” Solicitation to commit murder is the unlawful
conduct underlying Temkin’s conviction under 18 U.S.C.
§ 1958(a), and the offense level for solicitation to commit
murder involving the exchange of money is greater than 32.
It may be true that solicitation to commit murder is routinely
the unlawful conduct underlying a murder-for-hire
*18
conviction. Thus, in determining the base offense level for
[4]
The United States District Court for the District of New Mexico has
also addressed the interplay between U.S.S.G. § 2A1.5 and U.S.S.G.
§ 2E1.4, reaching the same conclusion as the First and Eighth Circuits.
United States v. Summers
,
* * *
In sum, under either Count 1 or Count 3, Temkin’s offense level should have been set by U.S.S.G. § 2A1.5. The offense level for solicitation to commit murder under U.S.S.G. § 2A1.5 is 37—33, with a 4-level increase for the “offer or the receipt of anything of pecuniary value for undertaking the murder.” U.S.S.G. §§ 2A1.5(a), (b)(1). Accordingly, Temkin’s offense level is 37. [5] Thus, the district [5] An offense level of 37 corresponds to a Guidelines range of 210–262 months for Temkin’s criminal history category of I. The statutory maximum for Count 3, 18 U.S.C. § 1958(a), is ten years (120 months) if no personal injury results. However, the statutory maximum under Count 2, 18 U.S.C. § 1951(a), is twenty years (240 months). When sentencing on multiple counts of conviction, the total sentence imposed may be greater than the statutory maximum for a particular count. See U.S.S.G. *19 § 5G1.2(b); see also id. , Application Note 3. Under U.S.S.G. § 5G1.2(d), court erred in using an offense level of 32 to calculate Temkin’s Guidelines range.
The district court’s error in calculating the offense level
was not harmless. The district court must begin its
sentencing analysis with the correct Guidelines range.
See
United States v. Munoz-Camarena
,
V. Conclusion
Sufficient evidence supports Temkin’s conviction. However, at sentencing, the district court materially erred in calculating the proper Guidelines range. Accordingly, we affirm all three counts of Temkin’s conviction, but vacate his sentence and remand for resentencing.
AFFIRMED in part, VACATED in part, and REMANDED.
“[i]f the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment.”