Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 06 CR 747-Amy J. St. Eve, Judge.
The opinion of the court was delivered by: Tinder, Circuit Judge.
ARGUED SEPTEMBER 24, 2008
Before POSNER, WOOD, and TINDER, Circuit Judges.
Omar Abbas challenges the application of U.S.S.G. § 2C1.1 (extortion under color of official right) to his sentence for impersonating an FBI agent and argues that he should be re-sentenced. While we agree that impersonation of a public official is not action "under color of official right" (and thus does not qualify for treatment under § 2C1.1), we find that the sentencing error was harmless and that Abbas's sentence was reasonable. Accordingly, we affirm.
Omar Abbas ran scams on several unsuspecting immigrants in the Chicago area, offering to make various immigration and criminal problems go away in return for cash. As part of his scheme, he occasionally claimed to be an FBI agent and even flashed a badge when one of his victims asked for proof. When a friend of one of his victims got suspicious, Abbas reported the friend to the FBI as a Hamas member, a claim the FBI debunked.
Abbas, however, had no relationship with the FBI or the Secret Service, the organization with which he claimed affiliation once he was taken into custody. In fact, he had no ability whatsoever to influence the outcome of the proceedings in which his victims were involved. Instead, he took the cash (on at least one occasion) to a casino in Indiana where he used the money to gamble.
He was eventually indicted on five counts: extortion under color of official right, in violation of the Hobbs Act, 18 U.S.C. § 1951, impersonation of an FBI Special Agent, 18 U.S.C. § 912, transporting in interstate commerce U.S. currency stolen or gained by fraud, 18 U.S.C. § 2314, and two counts of making false statements to FBI agents, 18 U.S.C. § 1001(a)(2).
Abbas pled guilty to the currency transportation charge and took the four other counts to trial. At trial, he was acquitted of the Hobbs Act charge, but convicted of impersonating an FBI agent and the two counts of making false statements. Per the Pre-Sentence Report and the government's recommendation, the district court calculated Abbas's sentence using U.S. Sentencing Guidelines § 2C1.1, pursuant to the cross reference found in U.S.S.G. § 2J1.4. It is the application of § 2C1.1 that forms the issue in this case.
The sentence for impersonating an FBI agent is determined by a judge according to § 2J1.4 of the Guidelines. Section 2J1.4(c)(1) contains a cross-reference that reads, "If the impersonation was to facilitate another offense, apply the guideline for an attempt to commit that offense, if the resulting offense level is greater than the offense level determined above." Even though the defendant was acquitted by the jury of extortion under color of official right, the sentencing judge found by a preponderance of the evidence that the defendant's impersonation was to facilitate color of official right extortion. The judge used § 2C1.1 (the color of official right guideline) to calculate the defendant's offense level. Applying this guideline, the judge sentenced the defendant to 29 months' imprisonment, and indicated that even if the Guidelines calculation was incorrect, she would impose the same sentence based on the factors listed in 18 U.S.C. § 3553.
II. Extortion Under Color of Official Right
We review both the district court's interpretation of the Guidelines and its application of the Guidelines to the facts de novo. United States v. Thomas, 520 F.3d 729, 736 (7th Cir. 2008); United States v. Haddad, 462 F.3d 783, 793 (7th Cir. 2006). The district court found, over Abbas's objection, that § 2C1.1 was an appropriate cross-reference to apply to his conviction, adopting a statement by this court in United States v. McClain, 934 F.2d 822, 831 (7th Cir. 1991), that private citizens who masquerade as public officials are subject to extortion "under color of official right" liability. In addition, the district court relied on what it referred to as the legislative history of the Hobbs Act to support its reading. On appeal, the government argues that we should adopt this rationale and affirm the dictum in McClain because the resulting liability for masqueraders under the Hobbs Act is consistent with the plain language of the statute. Abbas, of course, argues the exact opposite.
Section 2C1.1 applies to "Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under Color of Official Right; Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials; Conspiracy to Defraud by Interference with Governmental Functions." The phrase "Extortion Under Color of Official Right" at issue here matches the language of the Hobbs Act, 18 U.S.C. § 1951, which punishes anyone who "obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion" and 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." 18 U.S.C. § 1951(b)(2).
The government does not argue that Abbas used or threatened force, or made his victims afraid. Instead, Abbas's victims were already afraid when he met them. One was afraid of being removed from the country; ...