Juan Hacha and his wife, Ixchel Solano, extorted money from Solano’s “friend” and former boyfriend, Juan Carlos Tenorio. Hacha told Tenorio that he had kidnapped Solano and her children and would harm
He appeals, challenging the length of his sentence, but his appointed counsel has concluded that the appeal wholly lacks merit, and has therefore moved to withdraw from his representation of the appellant. Anders v. California,
One issue is the amount that Hacha extorted from Tenorio. Because the judge found that it exceeded $50,000 (by $4,834), he added two levels to Haeha’s guidelines range. U.S.S.G. ■ §§ 2B3.2(b)(2), 2B3.1(b)(7)(C). Hacha had disputed the loss amount in both a memorandum that he submitted at sentencing and a “defendant’s version of the offense” that he had submitted to his probation officer (and that was included in the presentence report also submitted at sentencing), claiming that a large part of Tenorio’s payments to him represented repayment of money that Solano had lent Tenorio before the extortion. Tenorio denied this account at the sentencing hearing, testifying that he had borrowed only $500 from Solano, and on only one occasion, and had repaid the loan a week later.
The dispute over the amount extorted is actually beside the point. The two-level guidelines enhancement in extortion cases is based on the greater of the amount demanded or the loss to the victim, U.S.S.G. § 2B3.2(b)(2), and Hacha had demanded $75,000, plus a new Chrysler, from Tenorio. And anyway extortionate methods such as threats of violence are not excused just because they are employed to collect a debt, e.g., United States v. Brika,
The judge added another three offense levels to Hacha’s base offense level on the ground of his “demonstrated ability to carry out” his threat to harm Solano and the others. U.S.S.G. § 2B3.2(b)(3)(B) provides that “if (i) the offense involved preparation to carry out a threat of (I) death; (II) serious bodily injury; or (III) kidnapping ... or (ii) the participant(s) otherwise demonstrated the ability to carry out a threat described in any of subdivisions (i)(I) through (i)(V), increase [the offense level] by 3 levels” (emphasis added).
The record contains threats against Solano, her children, Tenorio, and Tenorio’s parents. But Solano was not a hostage; she was Hacha’s accomplice. Her children were in no danger either. So far as she and the children were concerned, Hacha’s
Some meaning must be given to the word “demonstrated” in the guideline, as otherwise quite harmless threats would earn the three-levej enhancement. Most people have the physical ability to injure a person, but not all threats to injure earn the enhancement. But surprisingly we’ve found only one published appellate decision that deals with the meaning of “demonstrated ability” to carry out threats: United States v. Mussayek,
The defendant in Mussayek argued that since his threats had been made in the course of a sting, there was no way he could have carried them out. That was true, but, the court correctly found, irrelevant. The purpose of a sting is to arrange for the target to commit a crime (usually an attempt) in circumstances in which the police can prevent the target from doing any actual harm. In a common type of drug sting, for example, he’s induced by a police informant or undercover agent to attempt to rob a nonexistent stash house.
Hacha’s brief in opposition to his lawyer’s Anders motion challenges none of the evidence that he had had a demonstrated ability to carry out the threats that he uttered to Tenorio. Because he prepared the opposition without a lawyer’s assistance we won’t treat this omission as a waiver. United States v. Wagner,
Although we discount the threats against Solano and her children, Hacha does appear to have had a demonstrated ability (within the meaning of the guideline) to carry out his threats against Tenorio and Tenorio’s parents. He told Tenorio: “Then after I am done with them [Solano and her children], it will be you. I am going to keep you alive in a bag and in a box and I am going to take you to the D.F. [Distrito Federal — Mexico City.] Wherever your family is at, where your mom and your dad are at ... I am going to make them suffer.” We know that Hacha knew Tenorio’s address and other personal information — he wrote it all down for another detainee at the jail in which Hacha was held awaiting trial, as we’re about to see. Also Tenorio testified at Hacha’s sentencing hearing that Hacha knew where Tenorio’s parents lived in Mexico City: “He told m'e that my parents — my father’s name and my mother’s name.... He g[a]ve me the address and the color [of their house] and everything.” The facts are close to the example of demonstrated ability in Application Note 6 to the extor
He challenges the district judge’s decision not to award him a sentencing discount for accepting responsibility for his criminal activity. See U.S.S.G. § 3E1.1. He admitted to having engaged in the activity and had cooperated with the FBI and the probation officer who prepared the presentence report. But he also obstructed justice. See U.S.S.G. § 3C1.1. That other detainee we mentioned testified that Hacha had offered to pay him to have Tenorio either intimidated into not testifying against Hacha or kidnapped and taken to Mexico, flacha denied having attempted to prevent Tenorio from testifying, but faced with conflicting testimony the sentencing judge was entitled to believe the informant over the extortionist. The judge was ultimately swayed by a note that the informant had given the FBI. It was in Hacha’s handwriting and contained Tenorio’s name, cell phone number, and address, plus information about his employer.
Hacha had, however, abandoned his effort to obstruct'justice before he pleaded guilty, and we said in United States v. Lallemand,
Moreover, Hacha told the judge at the hearing at which he changed his plea from not guilty to guilty that “we never received—we didn’t receive a dollar that day or prior to that day from [Tenorio],” though the government had shown that he’d received nearly $55,000. Application Note 1(A) to U.S.S.G. § 3E1.1 states that “a defendant who falsely denies ... relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility.” That’s Hacha. See United States v. Kumar,
In general a defendant who obstructs justice must, to obtain the discount nevertheless, show either that the obstruction was trivial, putting the government to no added expense (in United States v. Buckley,
Only the Ninth Circuit has gone so far as to hold that a routine showing of acceptance of responsibility can wipe out a nontrivial obstruction of justice: “we hold the relevant inquiry for determining if a case is an extraordinary case [warranting the acceptance of responsibility discount despite an obstruction of justice] is whether the defendant’s obstructive conduct is not inconsistent with the defendant’s acceptance of responsibility. Cases in which obstruction is not inconsistent with an acceptance of responsibility arise when a defendant, although initially attempting to conceal the crime, eventually accepts responsibility for the crime and abandons all attempts to obstruct justice.” United States v. Hopper,
We have rejected the Ninth Circuit’s position, remarking in United States v. Buckley, supra,
Motion Granted and Appeal Dismissed.