United States v. Abbas, Omar ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3866
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
O MAR A BBAS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CR 747—Amy J. St. Eve, Judge.
A RGUED S EPTEMBER 24, 2008—D ECIDED M ARCH 26, 2009
Before P OSNER, W OOD , and T INDER, Circuit Judges.
T INDER, Circuit Judge. 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 sen-
tence was reasonable. Accordingly, we affirm.
2 No. 07-3866
I. Background
Omar Abbas ran scams on several unsuspecting immi-
grants 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 calcu-
lated Abbas’s sentence using U.S. Sentencing Guidelines
No. 07-3866 3
§ 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 deter-
mined 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 preponder-
ance 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
4 No. 07-3866
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 extor-
tion” 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;
another was afraid for his son, who was incarcerated.
No. 07-3866 5
Abbas sought to capitalize on this fear and did so by
pretending to be an FBI agent who could solve his vic-
tims’ problems.1 The question is whether, when Abbas
stepped into this role, he committed extortion “under
color of official right.”
At the outset, we should note that McClain did not
directly address this issue and therefore does not deter-
mine the outcome of Abbas’s appeal. McClain, 934 F.2d
at 836 (Easterbrook, J., concurring) (noting that “panels of
this court will consider it their duty to examine the
subject anew when finally seized of a concrete contro-
versy”). McClain is factually very different from this
case. McClain involved not an impersonator but a
private citizen involved in a scheme to bribe Chicago
officials who, like Abbas, was acquitted of the “official
right” charge. However, at the same time McClain was
convicted of several conspiracy charges with separate non-
extortion predicate offenses. He appealed those convic-
tions, arguing that statements admitted against him to
prove the “official right” charge had unfairly prejudiced
the jury on these other charges. It was against this back-
drop that we noted that “as a general matter and with
caveats as suggested here, proceeding against private
citizens on an ‘official right’ theory is inappropriate
under the literal and historical meaning of the Hobbs
Act.” Id. at 831.
1
This is not to say that impersonators can never be con-
victed under the fear prong of the Hobbs Act definition of
extortion. See United States v. Ward, 914 F.2d 1340, 1347 (9th
Cir. 1990).
6 No. 07-3866
One of the caveats we suggested was that McClain’s
“analysis does not apply, for example, to a private
person actually masquerading as a public official.” Id. at
830. It was this limiting phrase in McClain that led the
district court here to believe that application of § 2C1.1 was
appropriate for Abbas, who was convicted of such a
masquerade. While we agree with the analysis in
McClain that private citizens generally cannot be con-
sidered to act “under color official right,” we disagree
that masqueraders are the exception to this general rule.
We disagree based on our reading of the statute and
the well-reasoned approach to the issue taken by our
sister circuits.
Remarkably, there appears to be no source for the
undisputed meaning of the term “under color of official
right.” The Supreme Court conducted a rigorous exegesis
of the term in Evans v. United States, 504 U.S. 255 (1992),
and reached the conclusion that extortion under color
of official right did not require an official to solicit a
bribe to incur criminal liability. More relevant to our
purposes, however, is that the Supreme Court made it
clear that “the portion of the [Hobbs Act] that refers to
official misconduct continues to mirror the common-law
definition” of extortion.2 Evans, 504 U.S. at 264. See also
2
Neither party seriously argues that we should interpret the
term “under color of official right” as used in § 2C1.1 differently
than we interpret the same phrase in the context of the Hobbs
Act. Abbas does argue that the approach taken by the Sen-
tencing Commission to the crime of extortion under color
(continued...)
No. 07-3866 7
Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393, 402
(2003).
Thus, the government’s argument that we can look to a
plain reading of the “under color of official right” lan-
guage, informed only by the dictionary definition of the
word, is unavailing. “[W]here Congress borrows terms
of art in which are accumulated the legal tradition and
meaning of centuries of practice, it presumably knows
and adopts the cluster of ideas that were attached to
each borrowed word.” Evans, 504 U.S. at 259-60 (altera-
tion in the original). “Or, as Justice Frankfurter advised,
‘if a word is obviously transplanted from another legal
source, whether the common law or other legislation, it
brings the old soil with it.’” Id. at 260 n.3 (quoting Frank-
furter, Some Reflections on the Reading of Statutes, 47 Colum.
L. Rev. 527, 537 (1947)). The term “under color of official
right” has been around for centuries. It appeared in Magna
Carta-era England, was imported into New York state
law, codified in the Hobbs Act, 3 and was subsequently
2
(...continued)
of official right supports his argument that the term does not
apply to impersonators. As noted below, we agree.
3
As support for its position, the government points to a
statement, relied upon by the district court, by Representative
Samuel F. Hobbs during debate on an earlier version of the
Hobbs Act where he defined “under color of official right” as
“absence of right but pretended assertion of right.” When
pressed to explain, Rep. Hobbs said, “In other words, you
pretend to be a police officer, you pretend to be a deputy
(continued...)
8 No. 07-3866
interpreted by the Supreme Court. See Scheidler, 537 U.S.
at 402-03; James Lindgren, “The Elusive Distinction
Between Bribery and Extortion: From the Common Law
to the Hobbs Act,” 35 UCLA L. Rev. 815 (1988). Extracting
meaning from the phrase requires an examination of
precedent and traditions of interpretation, rather than a
sort of tabula rasa consideration of the words themselves.
In Evans, the Court explained that “[a]t common law,
extortion was an offense committed by a public official
who took ‘by colour of his office’ money that was not due
to him.” Evans, 504 U.S. at 260 (footnote omitted). The
Court cited Blackstone, who defined extortion as “an
abuse of public justice, which consists in an officer’s
unlawfully taking, by colour of his office, from any man, any
money or thing of value, that is not due him, or more
than is due, or before it is due.” Id. n.4.
Our understanding of “under color of official right”
liability, then, must begin with the notion that ordinarily
3
(...continued)
sheriff, but you are not.” 89 Cong. Rec. H3228-29 (1943). We
agree with the Eighth Circuit that this does not decide the
issue before us, namely because the Representative’s statement
is completely at odds with the accepted interpretation of the
term both before and after the Hobbs Act was enacted. See
United States v. French, 628 F.2d 1069, 1073 n.4 (8th Cir. 1980)
(“The brief debate that occurred . . . was not clear enough to be
determinative of the scope of the ‘color of official right’ lan-
guage, especially in light of the confusing reference to false
pretenses type crimes, which would seem out of place in an
extortion statute.”). See also McCormick v. United States, 500
U.S. 257, 268 n.6 (1991).
No. 07-3866 9
the phrase applies to public officials who misuse their
office. This is what we determined in McClain and is the
view unanimously adopted across the circuits that have
addressed the issue. See United States v. Saadey, 393
F.3d 669, 675 (6th Cir. 2005); United States v. Boggi, 74 F.3d
470, 476 (3d Cir. 1996); United States v. Tomblin, 46 F.3d
1369, 1382-83 (5th Cir. 1995); United States v. Freeman,
6 F.3d 586, 593 (9th Cir. 1993). We think the rationale
that animates these decisions is the fact that extortion
under color of official right, then and now, is a crime
against the public trust. Victims of this type of extortion
are vulnerable based on the authority that their victimizer
wields. And what makes extortion under color of official
right so pernicious is that the state (generally for good
purposes; not evil) has given the offender the power to
harm his victims. For this reason, such an offender is
singled out for a special brand of criminal liability.
What then of someone who cloaks himself in the
state’s authority and uses it to intimidate and coerce his
victims, as Abbas did here? Isn’t such a criminal indistin-
guishable in the eyes of the public (and thus his victim)
from the official he claims to represent and, if so, shouldn’t
the law treat him the same? As a practical matter, for
the men paying Abbas, it made no difference whether he
was or was not an actual FBI agent. They just wanted
their problems to go away. But, we should note that a
foundational notion of our criminal code is that crimes
that have identical effects can be punished differently,
and appropriately so, based on the intent and manner
of the crime. See Model Penal Code § 2.02 (General Re-
quirements of Culpability). Criminal liability has never
turned solely on the crime’s effect on its victim.
10 No. 07-3866
Ultimately, the crime of extortion under color of official
right, and its previous state and common law analogues, is
appropriately considered an “ethics in government act.”
See Lindgren, supra, at 887-88. Early commentators listed
extortion as a crime against public justice, not a crime
against the person or property. Id. (referring specifically
to Blackstone and Hawkins). Section 2C1.1 of the U.S.
Sentencing Guidelines is similarly found under the part of
the Guidelines (Part C) which deals with “Offenses In-
volving Public Officials and Violations of Federal Election
Campaign Laws.” Furthermore, § 2C1.1 itself applies to
a number of crimes in addition to “extortion under color
of official right” including “offering, giving, soliciting, or
receiving a bribe; . . . fraud involving the deprivation of
the intangible right to honest services of public officials;
conspiracy to defraud by interference with govern-
mental functions.” This categorization of § 2C1.1 as
punishing those involved in government dishonesty
matches the roots of under color of official right liability.
We see no reason to extend it for the first time to private
citizens who masquerade as public officials.
And, importantly, no other court has either. The gov-
ernment can point to no other case where an impostor was
successfully convicted or sentenced for extortion under
color of official right. In fact, as the government con-
cedes, the Sixth Circuit found otherwise in Saadey, 393
F.3d at 674-75. In Saadey, the defendant had been con-
victed of an attempted “under color of official right”
violation of the Hobbs Act on the basis of an extensive
scheme he had undertaken to “fix” cases as part of his
employ in the Mahoning County Prosecutor’s Office.
Saadey continued this scheme after he left the office, and
No. 07-3866 11
the conviction for attempted extortion “under color of
official right” was for money he tried to extort after he
left the office.
The question the Sixth Circuit faced in Saadey, then, was
whether the defendant could be liable under the Hobbs
Act for pretending to be still in the employ of the pros-
ecutor’s office. If not, the court had to establish whether
he could still be liable for aiding and abetting a public
official in the act of extortion based on his relationship
to those still working for the prosecutor. Contrary to the
government’s argument, in considering Saadey’s potential
as a masquerader, the Sixth Circuit stated, “[I]n this
circuit, a private citizen who is not in the process of
becoming a public official may be convicted of Hobbs
Act extortion under the ‘color of official right’ theory only
if that private citizen either conspires with, or aids and
abets, a public official in the act of extortion.” Saadey, 393
F.3d at 675. That statement was critical to the Sixth Cir-
cuit’s ultimate decision to overturn Saadey’s conviction
on the attempted extortion charge—he was liable neither
as a masquerader as a matter of law nor as an aider
and abetter as a matter of fact.
The Sixth Circuit’s analysis in Saadey is in accord with
the reasoning of other circuits. See Boggi, 74 F.3d at 476(finding § 2C1.1 inapplicable when defendant “was not a
public official and he did not accept money in exchange
for action involving any official duties”); Tomblin, 46 F.3d
at 1382-83 (overturning “extortion under color of official
right” conviction where defendant “was not a public
official, nor was he in the process of becoming one”);
Freeman, 6 F.3d at 593 (“We conclude that the Hobbs Act
12 No. 07-3866
reaches anyone who actually exercises official powers,
regardless of whether those powers were conferred by
election, appointment, or some other method.”).
We think this is the correct approach and the one that
matches the interpretation of the term “under color of
official right” in our above discussion. Extortion under
color of official right is a crime that punishes those who
betray the public trust. But the term presumes that
the “official” has actually been entrusted with authority
by the public. Abbas’s conduct assuredly damaged in
some way the trust in the FBI of some members of Chi-
cago’s immigrant community, but this is not the correct
inquiry. The question is whether he misused the cloak of
official authority invested in him by the state. He had no
such authority and therefore § 2C1.1 cannot be applied
to him.
III. Harmless Error
We now reach the second issue in this case—whether the
district court’s sentencing error requires remand under
the appellate review procedures outlined in Gall v. United
States, 128 S. Ct. 586 (2007).
Regardless of whether the sentence imposed is
inside or outside the Guidelines range, the appel-
late court must review the sentence under an
abuse-of-discretion standard. It must first ensure
that the district court committed no significant
procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to
No. 07-3866 13
consider the § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to
adequately explain the chosen sentence—including
an explanation for any deviation from the Guide-
lines range.
128 S. Ct. at 597. “Assuming that the district court’s
sentencing is procedurally sound, the appellate court
should then consider the substantive reasonableness of
the sentence imposed under an abuse-of-discretion stan-
dard.” Id.As we have detailed, the district court here improperly
applied U.S.S.G. § 2C1.1 to Abbas’s sentence and there-
fore miscalculated the Guidelines range, a mistake that
is specifically listed as a significant procedural error in
Gall. But what Gall does not tell us is whether such an
error can be harmless. If such an error is harmless, then
it would not require remand and we could proceed
under the two-step process to assess its reasonableness.
Abbas urges us to adopt the position that under the
review procedures established in Gall, a district court’s
procedural error can never be harmless and therefore
always requires remand.
But after Gall, we have found that sentencing errors
were harmless in certain circumstances.4 See, e.g., United
4
One issue that militates against a finding of harmless error
is the inability of the government to challenge, in a petition
for certiorari, our determination that U.S.S.G. § 2C1.1 does not
apply to impersonators. Given, however, that the govern-
ment did not ask for a remand in the event we reached this
(continued...)
14 No. 07-3866
States v. Quinlan, No. 08-1388, 2008 WL 5395981, at *2
(7th Cir. Dec. 23, 2008) (not selected for publication)
(finding harmless error in the event that the defendant
was improperly denied credit for acceptance of responsi-
bility); United States v. Jackson, 549 F.3d 1115, 1118 (7th
Cir. 2008) (finding harmless error under a more lenient
standard of review of a sentence for violation of super-
vised release); United States v. White, 519 F.3d 342, 349 (7th
Cir. 2008) (finding harmless error despite district court’s
failure to exercise its discretion in considering the Guide-
lines’ crack/powder disparity).
In United States v. Anderson, 517 F.3d 953, 965-66 (7th
Cir. 2008), we upheld a defendant’s sentence on appeal,
despite the district court’s miscalculation of the “benefit
received” in return for a bribe, a calculation made pursuant
to § 2C1.1. Because of recent amendments to the Guide-
lines, the proper sentencing calculation would have
resulted in the same sentencing range on remand even
under a correct calculation of the Guidelines. Id. at 966.
And at sentencing, the trial judge had expressed his
determination to impose the same sentence even if he
had gotten the calculations wrong. Id. at 965. Therefore,
4
(...continued)
ruling, and instead argued forcefully for a finding of harmless
error, we conclude the government will not be particularly
prejudiced by an inability to challenge our holding. As noted
above, the government offered no support for the notion that
an impersonator has ever been successfully prosecuted for
extortion under color of official right.
No. 07-3866 15
we were confident that the error did not affect the defen-
dant’s sentence, id., and proceeded to reasonableness
review.
It is important to emphasize that, as we noted in Ander-
son, our harmless error determination and review of the
sentence’s reasonableness are separate steps. Id. at 966
(“Because the district judge would apply the same sen-
tence, we now ask only whether it is a reasonable one.”). A
finding of harmless error is only appropriate when the
government has proved that the district court’s sen-
tencing error did not affect the defendant’s substantial
rights (here—liberty). To prove harmless error, the gov-
ernment must be able to show that the Guidelines error
“did not affect the district court’s selection of the sentence
imposed.” Id. at 965 (quoting Williams v. United States,
503 U.S. 193, 203 (1992) (applying harmless error pre-Gall)).
This is not the same thing as proving that the sentence
was reasonable.
“A judge must correctly understand what the Guide-
lines recommend.” United States v. Alldredge, 551 F.3d 645,
647 (7th Cir. 2008). “After getting the Guidelines right,
the district judge possesses discretion” to take the de-
fendant’s circumstances into account under 18 U.S.C.
§ 3553(a). Id. The recognition that some Guidelines miscal-
culations can be harmless does not change these basic
principles. It merely removes the pointless step of return-
ing to the district court when we are convinced that the
sentence the judge imposes will be identical to the one we
remanded. We are still bound to review that sentence
for reasonableness. Because the Guidelines, while not
16 No. 07-3866
binding, are still “the product of careful study based on
extensive empirical evidence derived from the review of
thousands of individual sentencing decisions,” Gall, 128
S. Ct. at 594, we may “take the degree of variance into
account and consider the extent of a deviation from the
Guidelines,” id. at 595. Therefore, on review it is crucial
to understand just what the correct Guidelines sen-
tence should be even if we are certain that the sentence
imposed in the district court would have been the
same absent the error. The correct sentence provides the
launching point for our review under Gall’s substantive
reasonableness prong.
Turning to Abbas, we note that our harmless error
determination is simplified by the fact that the sentencing
judge expressly stated that she would have imposed the
same sentence even if § 2C1.1 did not apply to the defen-
dant’s sentence. The issue was clear—whether Abbas
was subject to extortion under color of official right
liability; the judge ruled that he was, but then indicated
that, even if he was not, she would have exercised her
discretion to apply the same enhancement based on the
§ 3553(a) factors. And she did so with a detailed explana-
tion of the basis for the parallel result; this was not just a
conclusory comment tossed in for good measure. The
error was harmless.
But was the sentence reasonable? In other words, was
the district judge’s explanation sufficient to justify an
upward departure from what is the appropriate guide-
No. 07-3866 17
line range of 15-21 months? 5 Variance from the Guide-
lines “should be explained and supported with com-
pelling justifications for such deviations.” United States
v. Gordon, 513 F.3d 659, 666 (7th Cir.), cert. denied, 129 S. Ct.
346 (2008). See also United States v. Wachoviak, 496 F.3d
744, 748-49 (7th Cir. 2007).
At sentencing, the trial judge found Abbas’s crime
“serious” because he assumed the guise of law enforce-
ment and “impaired the reputation of law enforcement,”
and thus “threatened the public trust in that law enforce-
ment, which threatens our whole law enforcement struc-
ture.” Furthermore, as the judge put it, Abbas’s false
report to the FBI involved “explosive” allegations
which diverted resources from the FBI’s pursuit of bona
fide terrorists. She further noted Abbas’s history of
fraud and his lack of remorse. She finally concluded that
the § 3553(a) factors, particularly the need to promote
respect for the law and the need to protect the public
from Abbas, justified the sentence.
Where, as here, the judge has made a searching evalua-
tion of a defendant’s case, applied the statutorily man-
5
We base our calculations on Abbas’s suggestion here and at
sentencing that the fraud guideline, § 2B1.1, is more applicable
to his conduct. According to his calculations, which we adopt,
his offense level (after appropriate enhancements) would
have been 13, which combined with his criminal history level II
would have resulted in a recommended range of 15 to
21 months, rather than the enhanced offense level of 16 which
resulted in a recommended range of 24-30 months.
18 No. 07-3866
dated factors to the sentence and clearly articulated why
the given defendant warrants a sentence that would be
a departure from the correct range, the sentence is rea-
sonable. Her searching and thorough analysis of the
§ 3553(a) factors provided a substantial justification for
an upward departure from the correctly calculated range.
The defendant’s sentence is therefore A FFIRMED.
3-26-09