United States v. Abbas, Omar

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