United States v. Abbas, No. 07-3866 (7th Cir. 03/26/2009)

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.

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). 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.

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).

At the outset, we should note that McClain did not directly address this issue and therefore does not determine the outcome of Abbas's appeal. McClain, 934 F.2d at 836 (Easterbrook, J., concurring). 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.

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.  Evans, 504 U.S. at 264. 

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. 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

Our understanding of "under color of official right" liability, then, must begin with the notion that ordinarily 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). 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.

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). § 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 governmental 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.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 Chicago'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.

As we have detailed, the district court here improperly applied U.S.S.G. § 2C1.1 to Abbas's sentence and therefore 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.

A finding of harmless error is only appropriate when the government has proved that the district court's sentencing error did not affect the defendant's substantial rights (here-liberty). To prove harmless error, the government must be able to show that the Guidelines error "did not affect the district court's selection of the sentence imposed.” United States v. Anderson, 517 F.3d 953, 965 (7th Cir. 2008).

"A judge must correctly understand what the Guidelines recommend." United States v. Alldredge, 551 F.3d 645, 647 (7th Cir. 2008). 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 defendant's sentence.

AFFIRMED.

 For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about Chicago Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com.


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