F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v

.

E U G E N E D A R R Y L T E M K

I N , Defendant-Appellant

. N o. 12-50103

D.C. No. 2:10-cr-00813- SVW -1

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellant

,

v

.

E U G E N E D A R R Y L T E M K

I N , Defendant-Appellee

. N o. 12-50136

D.C. No. 2:10-cr-00813- SVW -1

OPI NI ON

A ppeal from the United States District Court for the Central District of California Stephen V. W ilson, District J u dg e, Presiding

Arg ued and Submitted D ecember 11, 2014—Pasadena, California

F iled Aug ust 13, 2015U N I T E D S T A T E S V

. T E M K I N 2

B efore: Kim McL a

ne W ardlaw and Marsha S. B erz o n, Circuit J u d g es, and W illiam E. Smith, Chief District

J udg e. *

Opinion by

J udg e W ardlaw

SUMMARY * *

Crim inal Law

The panel a ffirmed convictions for solicitation to commit

a crime of violence, attempted e x tortion in violation o f the Hobbs A ct, a n d use of interstate commerce facilities in the commission o f murder-for-hire; vacated the se n t e n ce; a nd remanded for resentencing

.

The panel held t h at sufficient evidence supported the d e f e ndant’s convictions and the district court’s rejection o f the entrapment defense.

On the g overnment’s c ross-appeal, the panel held that in apply ing the Sentencing G uidelines to the defendant’s conviction u nder 18 U.S.C. § 195 8 for use of interstate

commerce facilities i n t

he commission o f murder-for-hire, the distri ct court erred by u sing the base o ffense level of 32 set forth in U.S.S.G. § 2E1.4(a)(1) rather than the cross-

* T h e H o n o r a b le W illiam E. Sm ith

, Ch ief District J u d g e f or th e U .S. District Co u

rt f o r th e District o f

Rh o d e Islan d , sittin g b y

d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. T E M K I N 3

r e ferencing provision in U.S.S.G. § 2E1.4(a)(2), where th e unlawful conduct underly ing that conviction was solicitation
to commit murder, which, under U.S.S.G. § 2 A1.5, y ields an offense level (33) that is g r e at e r than 32. W ith a 4-level increase for the “offer o r receipt of any thing of pecuniary

v alue for undertaking the murder,” U.S.S.G. §§ 2 A1.5(a), (b)(1), the panel concluded that the defendant’s offense level

was 37, and that the district court therefore erred in using an offense level o f 3 2 to calculate the defendant’s Guidelines
rang e . The panel held that this error was not harmless.

COUNSEL

M ichael Cloug h (arg

ued), O akland, Califor n i a , f o r Defendant-Appellant/Cross-Appellee.

Mark R. Yohalem (arg

ued), Eliz abeth R. Yang and E. Martin Estrada, A ssistant United States Attorney s; Robert E. Dug dale

, Chief Assistant U nited States Attorney ; André B irotte J r., United States A ttorney , L o s Ang ele s, California, for Plaintiff-Appellee/Cross-Appellant.U N I T E D S T A T E S V

. T E M K I N 4

OP INION

W A RDL AW , Circuit J udg e:

Eugene Darry

l Temkin challeng es the sufficiency o f the evidence u n d e r l y ing his three counts of conviction for (1) solicitation to commit a crime of violence; (2) attempted

ex tortion in violation of the Hobbs Act; and (3) use o f interstate commerce facilities in the commissi o n o f murder-f o r -hire. T emkin also r aises the defense o f

en t rapment. W hile we conclude that sufficient evidence supports Temkin’s convictions and that Temkin was not entrapped, we ag ree with the Gov e r n m e n t that the district
court materially e rred in calculating the correct base offense level at sentencin g. According ly

, we affirm T e mkin’s

co n v iction but vacate h is sentence and remand for resentencing

.

I. F actual and P rocedural Background

This dark tale a

rises from a failed g ambling v enture in Equatorial Gui n ea , which was formed by two former d rug trafficking associates, defendant Temkin, and his associate o f

more than twenty y ears, Michael Hersh m a n

. I n 2000, Temkin mortg ag ed property to loan H e rshman and another partner $500,000 as his stake in the g ambling venture. W h en the venture f

ailed in 2003, eve r y o ne lost their money , but Temkin a lso ultimately lost his mortg ag ed property

. Temkin beg an demanding repay ment o f t he loan, and became dissatisfied when Hershman sent him only a b o ut $1,000 a week. I n 2004, Temkin beg an a campaig n of harassment a nd threats ag ainst Hershman to g e t his money back. A l t h o u gh Hershman u ltimately r e turned the money throug h the settlement o f a lawsuit in 200 6
, T emkin escalated hisU N I T E D S T A T E S V

. T E M K I N 5

demands f

or the ever-increasing amounts of m o n ey he believe d Hershman still owed h im, bombarding Hershman with harassing and threatening phone calls a n d emails. Temkin nex t beg an “acti n g o ut” h is obsession with g etting

even more m o n e y from Hershman. He broke into a nd

e m p t i ed a Hershman family storag e u nit containing family
p o s s e ssions and f

inancial documents, and tracked d ow n Hershm a n ’s hospitaliz ed daug hter by p retending to be her uncle. Temkin hacked into Hershman’s email acc o u n t a nd computer, t racked his whereabouts in foreig n countries, a nd personally threatened H ershman, at one point br a n d ishing a .45-caliber g

un at him.

Then Temkin g ot s e rious. He attempted to recruit associates to assist in ex torting and murdering Hershman. I n around 2006, Temkin sug g ested to L arry Mor r i s o n, a computer-savvy d

rug d ealer who had helped hack Hershman’s computer to track him down in B elg ium, that he poison Hershman. H avin g r esearched options to k ill Hershman by poison, Morrison sug g ested ins t e a d that they

use a poison that had an antidote—they could poison Hershman, ex tort his money , and then let him l i ve; a proposition Temkin rejected out of hand. B efore they could proceed o n this course, Morr i s o n w as arrested for d rug trafficking

.

Temkin then turned to J ohn Malpez z i, a former attorney convicted of d

rug trafficking

, offering him mon ey to k ill Hershman. Malpez z i visited Hershman a t his D ominican Republic g aming operation, and w arned him of T e mkin’s

ex tortion/murder plan. Malpez zi a nd Hershman turned to an att o rney for advice; the attorney advised Malpez zi to beg in recording h is conversations with Temkin. Malpez z i took the

r ecording s to L os Ang eles Sheriff’s Department detect i v e sU N I T E D S T A T E S V

. T E M K I N 6

who asked him to introduce Temkin to “Chet,” an u ndercover sheriff’s detective who would pose as a hitman.

On November 21, 2009, Malp e z z i and Chet met with Tem k i n

. Temkin had g iven “a g r e a t deal of thoug ht” to killing Hershman, and h e and Chet continued to meet over the

nex t few months to work out a plan. T emkin proposed pushing Hershman off a b oat hundreds of miles from shore o r stag ing a “suicide.” At one point, Temkin also i n s t r u c t ed Chet to rape Hershman’s wife a nd daug hter, while Hershman

an d h i s son w atched, in order to ex tort more money from Hershman.

The Sheriff’s Department a pprised the F B I o f the situation in December of 20 0 9

. The Sheriff’s Department indicated that Temkin had given Chet every thing that a hitman would need ex c ept money , but they did n ot have
enoug h to file charg e s without the ex chang e o f m oney

. Therefore, in March of 2010, the Sheri ff ’s D epartment a nd
t h e FB I d ecided to “burn” the investig ation by warning Temkin that they were aware of his interactions with a known hitman. L a

w enforcement informed T emkin tha t h e was being watched and ins t r u c t e d him to leave Hershman a nd Hershman’s family a lone.

I n May 2010, after Temkin showed sig ns tha t he did not intend to f

ollow these instructions, an undercover F B I ag ent, posing as a d ifferent h itman n am ed “Pavel,” contacted Temkin. During the initial call, Temkin indicated that he may have secured the “services” of someone else, so Pavel ag reed
to call Temkin back i n one week. On J uly 7, 2010, Pavel called Temkin and stated, “I understand that y ou ma y need
my services after all.” T emkin responded, “W e ll strang ely
enoug h, y es.” Meeting the nex t day

, J uly 8th, 2010, TemkinU N I T E D S T A T E S V

. T E M K I N 7

told Pa v e l t o “very strong ly p ersuade [ Hershman and his business partner] to move the money f r o m the Colombian
account into my Montevideo account.” Temkin indicated that P a v el should force Hershman to transfer $15 millio n i n t o T e m k in’s bank account. Temkin g ave Pavel an address f o r Hershman’s apartment in Spain, i n f o rmation a

bout a bank
account throug h which Pavel could tra n s f e r the money to Temkin, and copies of th e i n t e nded victims’ p assports. Temkin also instr u cted Pavel that he wanted Hershman, Hershman’s wife, and Hershman’s business partner to “g o for

a very long boat r ide. Yes. Out to sea.” Temkin g ave Pavel $3,000 in cash to cover ex p enses, n oting “[ t] hat’s as much a s I can m o v e

. ” At the end of the meeting

, Pavel said to Temkin, “I w a l k o u t [ of] h ere, the job is done. They ’re not g oing to come back f

rom the trip. I t’s all done. Y ou understand that? ” Temkin responded, “I understand that.”

After their J uly 8th meeting

, Temkin l e f t two voicemail

m e s s a ges for Pavel. I n the first, left on the evening of J uly 8th, Temkin stated that “there is some strong interest” in him f rom law enforcement, and therefore they “mig ht have t o rethink.” I n a second messag e left o n t he morning of J uly 9th, Temkin indicated, using coded lang uag e, that another plan “may work equally as w ell.” The calls went u n returned, and Temkin was arrested on J uly 14, 2010.

F ollowing a bench trial, Temkin w as convicted of t h r ee

co u n t s: ( 1) solicitation to commit a crime of violence under 18 U.S.C. § 373(a); (2) attempt to interfere with commerce b y threats a n d v iolence under 18 U.S.C. § 1951(a); and (3) the

use of interstate commerce f a c ilities in the commission o f murder-for-hire under 18 U.S.C. § 1958(a) (“murder-forhire”). The district c ourt sentenced T e m kin to six y ears o f imprisonment and three y ears of s u p e rvised release. I n thisU N I T E D S T A T E S V

. T E M K I N 8

timely appeal, Temkin challeng es the sufficiency o f the evidence for all three counts an d arg ues that h e was entrapped. I n a cross-appeal, the Government challeng es the
sentence imposed by the dist r i c t court a s both procedurally and substantively

unreasonable.

II. Jurisdiction and Stan dard of Review

W e have jurisdiction to review Temkin’s conviction a nd
sentence u nd e r 1 8 U .S.C. § 3742(b) and 28 U.S.C. § 1291. F ollowing a bench trial, a district court’s conclusions of law

are reviewed de novo and finding s of fact are r ev i ewed for clear e rror. OneBeacon I ns. Co. v

. Haas Indus., Inc.
, 634 F .3d 1092, 1096 (9th Cir. 2011). I n reviewing a district court’s judg ment in a bench trial, sufficient evidence supports

a conviction if, “viewing the e v i d e n ce in the lig ht most favorable to the pr o s ecution, any rational trier of fact could have found the essential elements of t h e crime bey o nd a reasonable doubt.” Jackson v. Virginia
, 4 4 3 U.S. 307, 319 (1979); see United States v. Magallon-Jimenez

, 2 19 F .3d 1109, 1112 ( 9th Cir. 2000). “W e review a district court’s construction and interpretation o f the Unite d S tates Sentencing Guidelines Manual (‘Guidelines’) de novo a nd its application of the Guidelines to the facts for abuse o f discretion.” Uni ted S

tates v. Popov
, 742 F .3d 911, 914 (9th Cir. 2014).

III. Conviction

A. Solicitation of a Crime of Violence

Under Count 1, Temkin was conv i c t e d of solicitation to commit a crime of v iolence, namely murder-for-hire. Temkin
arg ues that there w as insufficient evidence to establish that heU N I T E D S T A T E S V

. T E M K I N 9

“actually intended that Pavel kill He r shman.” Temkin first
arg ues that he created a condition precedent at his J u ly 8, 2010 meeting with Pavel. Temkin a sserts he knew that t h is condition precedent would never be satisfied, and thus there

was insufficient evidence of his intent to g o throug h w ith the murder. S e cond, Temkin arg ues that even if there were sufficient evidence to establish a p lan to kill H e rshman, he later abandoned that p lan in his J uly 8th a n d 9 th voicemails for Pavel. The district c ourt r ejected both arg uments, finding that “[ a ] t the J uly 8th meeting

, the defendant just reac h ed a boiling point and crossed the line.” The district court f ound that during that meeting “the defendant knowing ly solicited,

c o m m a n d e d

, i n d uced or otherwise persuaded another to travel in interstate or foreig n c ommerce to commit murder for hire.” Sufficient evidence supports the district court’s f inding s a nd verdict.

1. Condition Precedent

At the outset of the J uly

8, 2010 meeting , Temkin stated that he planned to check with a “relative who’s ex -F B I ” that evening to determine the F B I ’s “leve l of interest” in him. Temkin characteriz es this statement as creating “a condition precedent that he knew would never be satisfied.” However,

as the di s t ri ct court correctly r e a soned, the remainder of the meeting and Temkin’s s u b s e q uent v oicemails confirm that T emkin and Pavel reached a concrete deal during t h i s meeting

.

I mmediately after Temkin said he planned to check with his e x -F B I r elative, Pavel said he normally does one meeting only a nd then “g et[ s] i t d o n e ” with a “success rate [ of] 100%.” To this, Temkin r e s p o n d e d: “Perfect. W ell, I need it done.” Temkin d id not ex press any contin g encies o rU N I T E D S T A T E S V

. T E M K I N 10

reservations. While he did ex press a desire to c heck with his

ex

- F B I r elative, h is statement to th a t e f f ect could be understood as indicating that he planned to do so as a precaution meant to av o i d detection by law enforcement. Then, during the meeting

, T e mkin provided Pavel with an address for Hershman’s Southern Spain apartment, information about a bank account for transferring th e

ex tortion money , and copies of the intended vi c t i m s ’ passports. T e mkin a lso instructed Pavel that the ex tortion
money should be moved into his Montevi d e o a c count, a nd that the victims should be taken o n a boat ride and lost at sea. Pavel, in turn, advised Temkin t h a t the job would be done when he left and confirmed that T e m k in understood. Thus, Temkin’s arg ument that the only permissible finding w as that checking w ith his ex -F B I relative w as “a condition p recedent that he knew w ould n ever b e satisfied” is unpersuasive. The evidence is sufficient to allow any rational trier of fact to find, bey ond a reasonable doubt, that Temkin intended at the J uly 8th meeting that Pavel kill Hershm an. See J ackson

, 443 U.S. at 319.

2. Abandonment

Nex t, Temkin a

rg ues that eve n i f there were sufficient evidence of his intent to solicit murder based on the J uly 8th meeting

, in his subsequent voicemails he abandoned the plan. The “voluntary and complete renunciation” of criminal intent is an affi r m ative defense to the c harg e of solicitation. 18 U.S.C. § 3 73(b). Section 373(b) provides, however, that “[ a] renunciation is not ‘vo l u n t ary and complete’ if it is motiva t e d i n whole or in part by a d ecision to postpone the

com m i s s i o n o f the crime u ntil another time or to substitute another victim or another but similar objective.” Id.U N I T E D S T A T E S V

. T E M K I N 11

Temkin failed to meet his burden of proving a voluntary and complete renunciation “by a p reponderance of the evidence.” Id. The district court correctly found that the J uly 8th and 9th v oicemails indicate Temkin’s desire to avoid detection by law enforcement and, a t most, a decision to delay —not to stop—the murder-for-hire. Viewing this evi dence in the lig ht most favorable to the prosecution, Jackson

, 443 U.S. at 319, sufficient e v idence supp o r t s t he district court’s rejection of Temkin’s renunciation defense.

B . Interference with Commerce by Threats or Violence

The Hobbs Act provides: “W hoever in any way or deg r ee obstructs, delay s, or affects commerce or the movement o f

a n y article o r commodity in commerce, by

. . . ex torti o n o r attempts o r conspires so to do,

. . . shall b e f i n e d under this title or imprisoned not more than tw e n t y y ears, or b oth.” 18 U.S.C. § 1951(a). Section 1951(b)(2) defines ex tortion a s “the obtaining of property f rom another, with his consent, induced by w rong ful use of a ctual or threatened force, violence, o r f

ear, or under color of o f ficial rig ht.” Under Count 2, Temkin was convicted of knowing ly attempting “to intentionally obstruct, delay

, an d affect commerce, and the
movement of ar t icles and commodities in commerce, b y

e x t o r t i on” in violation of the H obbs A ct. See 1 8 U .S.C. § 1951(a).

Sufficient evidence supports the district court’s conclusion that Temkin took a substant i a l step toward
carry ing o ut his plan to ex tort and kill Hershman

. W hile Temkin arg ues that he did not take a substantial step toward

ex tortion because his p lan was based on fictions invented b y Malpez z i, factual impossibility is not a defense to an inchoate offense, such as the attempt for which Temkin was convicted.U N I T E D S T A T E S V

. T E M K I N 12

See United States v. F

l e ming
, 215 F

. 3d 930, 936 (9th Cir. 2000). Additionally

, Temkin’s abandonment arg ument f ails because abandonment is not a defense when a n at t e m p t , a s here, “has proceeded w ell b e y ond preparation.” United States

v. Bussey
, 507 F .2d 1096, 1098 ( 9 th Cir. 1974). Temkin met with Pavel, who he believed was a hitman, and g ave him the intended victims’ ad d ress and personal information, d etails about a b ank account where P a v e l c ould transfer the money he was to ex tort from Hershm a n , and $3,000 in cash. This evidence supports the district court’s conclusion that Te m kin’s actions constituted a “substantial step,” as a reasonable observer c ould conclude bey ond a reasonable doubt t hat Temkin g ave Pavel all that was necessary to provide h i m w i t h the means o f ex torting and k illing Hershman, in violation of the Hobbs Act. See United States v. Scott , 767 F .2d 1308, 1311–13 (9th Cir. 1985).

Sufficient evidence also supports th e district’s court’s conclusion that interstate commerce “would have been

a f f e c ted in some way ” by T e mkin’s a cts. To p rove that interstate commerce would have been affe c t e d for purposes of the Hobbs Act, “the g o vernment ne ed o n l y establish that

a defendant’s acts had a de m inimis effect on inter s t a te commerce.” United States v. Lynch , 437 F .3d 902, 908 (9th Cir. 2006) ( en ba n c ) ( per curiam). F urthermore, “[ t] he
g overnment need not show that a defendant’s a c t s a ctually

a f f ected interstate commerce.” Id. a t 909. Rather, proof o f

a potential impact on interstate commerce is suffici e n t

. Id. Temkin’s conduct involved p hone calls, emails, hacking into email accounts, a n d t h e ex chang e of money ; his ex tortion plan w ould h ave involved international travel and an overseas wire transfer. This e v idence is more than sufficient to satisfy the requi r e m e n t of a de minimis effect on interstate

commerce. See United States v. Lee
, 818 F .2d 3 0 2, 305 (4thU N I T E D S T A T E S V

. T E M K I N 13

Cir. 1987). 1 Viewing the evidence in the lig ht most favorable
to the prosecution, the district co u r t could have found the essential elements of attempt to obstruct commerce b y

ex tortion bey ond a reasonable doubt. See Jackson

, 443 U.S. at 319.

C. Murder-for-Hire

Under Count 3, Temkin was convicted o f using interstate

commerce fac i l ities in the c ommission of murder-for-hire

un d e r 1 8 U.S.C. § 1958(a). The statute includes, a s an element, that a defendant “travel[ ] in or cause[ ] another (including the intended victim) to travel in i n terstate o r foreig n commerce, or use[ ] or cause[ ] another (including the intended victim) to use the mail o r any facility of interstate o r foreig n commerce, with intent that a murder be committed.” 18 U.S.C. § 1958(a). Sufficient evidence supports the district court’s conclusion that Temkin’s J uly 7, 2 010 phone call with Pavel satisfies this requirement.

1 T em k in raises tw o ad d itio n al arg u m en ts in co n n ectio n w ith Co u n t 2 of th e in d ictm en t, b o th o f w h i ch are m eritless. First, T e m k i n a r g u es th at Co u n t 2 is “ f

atally f law ed ” becau se it ad d ed th e w o rd s “ h ire an in d iv i d u al,” w

h ich are n o t in clu d ed in th e statu te. T h e in sertio n o f th ese

w o rd s c o uld n o t h av e in terf ered w ith T em

k in ’ s u n d erstan d in g o f th e elem en ts o f th e ch arg ed o f f en se. S ee Un ited S ta tes v. W

o o d ru ff

, 5 0 F.3 d 6 7 3
, 6 7 6 (9 th Cir. 1 99 5 ) (“ [A ]n in dictm en t is su f f icien t if it sets f

o rth th e elem en ts o f th e ch arg ed o f f en s e so as to en s u re th e rig h t o f t h e d ef en d an t

n o t to b e p l aced in d o u

b le j eo p ard y an d to b e in f o rm ed o f th e o f

f en se ch arg ed .”). If an y

th in g , T em

k in w as m o re in f

orm ed o f th e ch arg e ag ain st h im d u e t o th e ad d ed w o rd s. T em k in also arg u es th at th ere is n o f ed eral j u risd ict i o n o v er Co u n t 2 b ecau se h is co n d u ct co u ld n o t h av e af f ected

co m m erce in th e Un ited States. A s ex plain ed ab o v e, T em k in ’ s th reaten in g an d h arassin g activ ities—p h o n e calls, p ay i n g m o n ey to P av el,

an d u se o f th e i n tern et—easily satisf y th e i n terstate co m

m erce req u irem en t

o f th e f ed eral statu te.U N I T E D S T A T E S V

. T E M K I N 14

The J uly 7th telephone call qualifies as use of a f acility o f interstate commerce. See 18 U.S.C. § 1958(b)(2); United States v

. Nader

, 542 F .3d 713, 720 (9th Cir. 2008). Under the statute, T emkin must h a v e u sed the telephone “with intent that a murder b e committed.” 18 U.S.C. § 1958(a). The J uly 7th call reflects not o nly Temkin’s desire to hire P a v el b u t also a strong sense of urg ency

. Duri n g t h e phone call, Temkin ex pressed his desire to hire a hitm a n , ag r eed to provide identify ing informat i o n for the intended victims,
ag reed to bring money to pay Pavel, and also ex pressed a desire that Pav e l e x e c ute the plan quickly

. Viewing the evidence in the lig ht most favorable to the pr o s e c u tion, a

r a t i o n al trier of fact could h a v e found bey ond a reasonable doubt that Temkin used the telephone, a facility of interstate
commerce, with the intent that a murder be c o m m itted. See Jackson , 443 U.S. at 319.

D. Entrapment

The d istrict court properly rejected Temkin’s entrapment defense:

W h en a d efendant a sserts a n entrapment defense, the g overnment must prove bey ond a reasonable doubt that he w as not entrapped b y showing either: (1) the de fendant was predisposed to commit the crime before being

co n tacted by g overnment ag ents; or (2) the defendant was not induced by the g overnment ag ents to commit the crime.

United S tates v

. Mejia
, 559 F .3d 1113, 1116 (9th Cir. 2 009) (i n t ernal quotation marks omitted). The district court correctly found predisposition. W h ile we review entrapment,U N I T E D S T A T E S V

. T E M K I N 15

a matter of law, de novo, we defer to cre d i b ility d eterminations made by the factfinder, unless, viewing t h e evidence in the lig ht most favorable to the g overnment, n o

re a s o n a b l e factfinder could have concluded the defendant was either p r edisposed o r not i n d u ced to commit the charg ed

o ffenses. S

e e United States v. Si
, 343 F .3d 1116, 1 1 2 4

– 2 5 (9th Cir. 2003).

The district court correctly found th a t T e mkin was predisposed to commit the charg ed crimes, in part, because o f “the way he dealt w ith Malpez z i, and the way he a c t e d w i th ‘Chet,’ the first hitman.”

I n evaluating predisposition, we consider five factors: (1) the character and reputation of the defendant; (2) whether the g overnment made the initial s u g g estion of criminal activity ; (3) whether the defendant eng ag ed in the

a ct i v ity for profit; (4) w hether the defendan t showed a ny reluctance; and (5) the nature o f the g overnment’s inducement.

United S tates v

. Jones
, 231 F .3d 5 08, 518 (9th Cir. 2000). Of these five factors, “the most impo r t a nt is the defendant’s reluctance to eng ag e in criminal a ctivity .” Id. (internal quotation marks omitted).

L ong b efore Temkin c ame into contact with either the Sheriff’s Department or F B I undercover hitmen, Temkin became obsessed with g etting even more money t h a n Hershman owed him. Temkin stole from Hershman’s storag e unit and fraudulently g ained inf o r mation reg arding Hershman’s hospitaliz ed d a ug h ter. As the d istrict court noted, Temkin “is n o str a n g e r to law breaking as evidencedU N I T E D S T A T E S V

. T E M K I N 16

by the breaking into the storag e facility .” Temkin initia ted his first plan, to have Morrison poison Hershman, a p lan interrupted by Morrison’s arrest. Temkin then offered money to Malpez z i to k ill Hersh m a n

. Unbeknownst to T emkin, Mal p e zzi

, r e l u c t a

n t t o p a r t icipate in Temkin’s murder-for-hire scheme, recorded their conversations and g ave the r e cording s to the Sheriff’s Department. I t w as only then that f irst “Chet” and then “Pavel” entered t h e picture. B ut, with their
appearance on the scene, T em k i n remained in charg e o f the
p lan, g iving detailed instructions, and acting more u rg e n t l y

. I n an early meeting

, Temkin instructed Chet tha t h e wanted Hershman killed and his family taken “as leverag e.” Temkin admitted h e h ad g iven this p lan “ a g reat deal of thoug ht.” At

one point, Temkin instructed Chet t o r a pe Hershman’s wife and daug hter while Hershman and his son watched. Temkin
ag ain took the lead in planning the e x tortion and m u r d e r i n his meeting s with Pavel. Temkin d id not show any reluctance
to eng ag e in criminal activity

. See United S t a t es v

. McClelland , 72 F .3d 717, 723 (9th Cir. 1995).

L aw enforcement not only did n ot initiate the ex tortion and murder plot; they became involved only when it a ppeared that Temkin was taking substan t i al steps toward carry ing it
out. Moreover, besides reve n ge for a perceived wrong , Temkin w as determined to carry out this scheme to obtain
money , even after he had been repaid his initial loan. B ecause the district court correctly found that Temkin was predisposed to commit the cri m e s charg ed, we need not address inducement. See United States v. W illiams

, 547 F .3d 1187, 1 197–99 (9th Cir. 2008). Sufficient evidence supports the district court’s r ejection o f T e mkin’s entrapment defense.U N I T E D S T A T E S V

. T E M K I N 17

IV. P rocedural Sentencing Error

The district court s e n t e nced Temkin to six y e ars o f imprisonment and three y ears of supervised release o n e ach of his three counts of conviction, to be served concurrently

. The district c ourt, rely ing on the g uidance of the P ro b ation Off i ce, calculated an offense level o f 32 under U.S.S.G. § 2E1.4(a)(1), which g overns the sentencing rang e for murder-for-hire. However, Temkin’s correct offense level is 37 under U.S.S.G. § 2 A1.5, which g overns the sentencing
rang e f o r c onspiracy or solicitation to commit murder. The district court materially erred by u sing an offense level of 32, rather than 37, to calculate Temkin’s sentencing rang e under the Guidelines.

A. Base Offense Level for Count 1

I n Count 1, Temkin was convicted o f soliciting a crime o f

v i o lence u nder 18 U.S.C. § 373. 2 A ppendix A to the Guidelines provides the offense g uideli n e s e ctions that a re applicable to the statute of conviction. S e e U.S. Sentencing Guidelines Manual 541–63 (2010). T he base offen s e level f o r a violation o f 18 U.S.C. § 373 is dictated by e i t h e r U

. S

. S

. G. § 2A1.5 or § 2X1.1. Id. at 546. Section 2A1

. 5
g overns “Conspiracy or Solicitation t o Commit Murder.” Section 2X1.1 g overns solicitati o n offenses not covered b y other specific offense g

uidelines.

2 T h e p arties ag ree th at C o u n t 2
, attem p ted ex to rtio n in v io latio n o f th e Ho b b s A ct, y ield s a lo w er b ase o f f en se lev el th an d o es eith er Co u n t 1 o r Co u n t 3

. T o d eterm in e th e o f f en se lev el ap p licab le to T em k in ’ s g ro u

p of

o f f en ses, th e co u rt m

u st d eterm in e th e co u

n t w ith th e h ig h est base o f f en s e lev el. U.S.S.G. § 3 D1 .3 (a). T h eref o re, w e d iscu s s calcu latio n o f th e base

o f f en se lev el f

o r o n ly Co u n ts 1 an d 3

.U N I T E D S T A T E S V

. T E M K I N 18

I n Count 1, the “crim e o f violence” Temkin was convicted of soliciting was murder -for-hire in violation o f 18 U.S.C. § 1958(a). Solicitation to commit murder-for-hire is a solicitation offense not specifi c a l l y c overed by its o wn Guidelines section. Thus, U.S.S.G. § 2X1.1 is the co r rect starting point f

or Count 1. Section 2X1.1 provides t h a t the base o ffense level from the g uideline for the “subs t an t ive offense” should be used to calculate the o f f e n se level. Section 2X1.1, Application Note 2 defines “ substantive offense” as “the offense that the defendant was convicted of

so l iciting

, attempting

, o r conspiring to commit,” h ere, 18 U.S.C. § 1958(a). Appendix A to the Guidelines indicates that U.S.S.G. § 2E1.4 a

pplies to d etermine the sentencing
rang e fo r a c o n viction under 18 U.S.C. § 1958. U.S. Sentencing Guidelines M a n u al 554 (2010). Thus U.S.S.G. § 2E1.4 controls the base offense level for Count 1.

The Government arg ues that the applicable Guidelines section for determining

the base offense level for Count 1 is U.S.S.G. § 2A1.5, which covers “Conspiracy or Solicitation
to Commit Murder.” However, Temkin w as not convicted o f

so licitation to commit murder. Temkin was convicted o f solicitation to commi t murder-for-hire in violation o f 18 U.S.C. § 1958, a

nd n o Guidelines section ex pressly covers solicitation to violate 18 U.S.C. § 1 958. W hile it is true that Temkin’s underly ing conduct in Count 1 would include solicitation to commit murder, U.S.S.G. § 2X1.1 instructs
courts to look to the underly ing “ substantive offense” and not the underly

ing unlawful conduct.

Thus, in line with the Probation Office’s instructions a nd the district court’s a

naly sis, U .S.S.G. § 2X1.1, which in turn leads to U.S.S.G. § 2 E 1 .4
, gu i d e s the base offense level calculation for Count 1. Section 2E1.4 is also the applicableU N I T E D S T A T E S V

. T E M K I N 19

Guidelines section for determining th e s e n tencing rang e for Count 3.

B. Base Offense Level for Count 3

Under Count 3, Temkin was convicted of using interstate

commerce facilities in the commission of murder-for-hire, in violation of 18 U.S.C. § 1958. As for Count 1, Appendix A
to the Guidelines indicates that U.S.S.G. § 2E1.4 supplies the applicable base offense level for sentencing

. U.S. Sentencing Guidelines Manual 554 (2010). Section 2E1.4(a) provides that the base offense level is the g reater o f “(1) 32; or ( 2) the offense level applicable to the underly ing unlawful conduct.” Section 2E1.4, unlike U.S.S.G. § 2X1.1, instructs courts t o apply the offense level applicable to the underlying unlawful

c o n d u c t , n o t t h e u n d e r l yi n g s u b s t a n t i v e o f f e n s e

. According ly

, the district c ourt erred by using the base offense level o f 3 2 s e t forth in U.S.S.G. § 2E1.4(a)(1). The district
court should have used the cross-refer e ncing provision in U.S.S.G. § 2E1.4(a)(2)

, because the unlawful conduct underly ing Temkin ’ s murder-for-hire conviction was solicitation to commit murder, which y ields an offense level
g reater than 32. Under U .S.S.G. § 2 A1

. 5
, t he base offense level f or solicitat i o n to c ommit murder is 33, plus a 4-level enhancement for the ex chang e o f money

. Thus

, t h e c orrect offense level for Temkin’s conviction is 37.

I n 2004, U.S.S.G. § 2A1.5 was amended as part of an effort to increase the penalty for homicide offenses; the base offense level f

or conspiracy or solicitation to commit murderU N I T E D S T A T E S V

. T E M K I N 20

was increased from 2 8 to 33. 3 Howe v e r , U.S.S.G. § 2 E1.4, which falls in the categ o ry of “of f e n s e s involving criminal

e n terprises and racketeering ,” remained unchang ed. B ef o r e the 2004 ame n d m e nts, solicitation to commit murder involving the ex chang e of money resulted in an offense level of 32 u nder U .S.S.G. § 2 A1.5. Section 2A1.5 set forth a base offense level o f 28 and p rovided a 4-level enhancem e n t f o r the ex chang e of money

. The o ffense level f or the use o f interstate co m m e r ce facilities in the commission of murderfor-hire under U.S.S.G. § 2E1.4(a)(1) was also 32. However, after the 2004 amendments, the offense level for solicitation to commit murder involving the ex chang e of money jumped
to 37 under U.S.S.G. § 2A1.5, which set forth t h e n ew base offense leve l o f 3 3, and, a s before, added the 4-level enhance m ent for the ex chang e of money

. The two subsections of U.S.S.G. § 2 E1. 4 (a) e nable the Guidelines section to keep pace with chang es to U.S.S.G. § 2A1.5, while also maintaining a floor base offense level of 32. T h at is, U.S.S.G. § 2E1.4(a)(1) ensures the base offense level does
not drop below 32, while U.S.S.G. § 2E1.4(a)(2) keeps p ace with chang es to U.S.S.G. § 2 A1.5 and related Guideli n e s sections by incorporating the off ense level applicable to the underly ing unlawful conduct.

W h ile w e h ave not addressed the interplay b etween U.S.S.G. § 2A1.5 and U.S.S.G. § 2E1. 4 since the 2004 amendments to the Guidelines, two of our sister circuits have. I n United States v. Vasco
, the defendant, like Temkin, was convicted of u s ing interstate c ommerce facilities in the

3 S ee U.S. S E NT E NCI

NG C OMMI SSI ON , Amen dmen ts to th e S en ten cin g Gu id elin es 6

– 7 (M ay 1 0
, 2 0 0 4), h t tp ://w w w .u ssc.g o v /sites/d ef

au l t / f i l e s / p d f

/ a m e n d m e n t

- p r o c e s s / r e a d e r

- f r i e n d l y

- a m e n d m e n t s / 2 0 0 4 0 4 3 0

_ RF_

A m en dm en ts.p d f

.U N I T E D S T A T E S V

. T E M K I N 21

commiss i o n o f murder-for-hire in violation of 18 U .S.C. § 1958. 564 F .3d 12, 15, 22 (1st Cir. 2009). A t sentencing in Vasco
, the district court applied the cross-referencing provision in U

. S .S.G. § 2E1.4(a)(2). Id. at 22. The district
court f ound that the “ ‘unde r l y ing unlawful conduct’ was solicitation to commit murder.” Id. Section 2A1.5( b ) (1 ), which corresponds to s o licitation to commit murder, establish e s a base offense level of 33, increased by 4 levels for the e x c h ang e of money

. According ly

, Vasco’s offense level f or his murder-for-h i r e conviction was 37 under U.S.S.G. § 2A1.5. Vasco
, 564 F .3d at 22. The F irst Circuit noted that

[ t] he refere n c e in § 2 E1.4 to a [ base offense level] of the g reater of thirty -t wo or ‘the offense l e v el applicable to the underly ing

c o nduct’ is curious, as virtually every time a defendant is charg ed with the u se of interstate

commerce facilities in the c o m mission o f murder-for-hire, the u nderly ing unlawful conduct will b e solicitation to c ommit murder.

Id. at 23. Nonetheless, the court concluded that “[ w ] e see no impropriety in the district court’s h a v i n g used the cross-reference” in U.S.S.G. § 2E1.4(a)(2). Id.

I n Unit e d States v. Dotson
, the defendant was also convicted of v iolating 18 U.S.C. § 1958 and was sentenced using an offense level of 3 7

. 5 70 F

. 3d 1 067, 1069 (8th C i r. 2009). As in Vasco
, the “district court c r oss-applied U.S.S.G. § 2A1.5 for Conspir a c y or Solicitation to Commit Murder, which has a base offense level of 33, and a 4-level increase if the offense involved the o f f er o r receipt of any

thing o f pecuniary value for undertaking the murder.” Id. Do t sonU N I T E D S T A T E S V

. T E M K I N 22

arg ued that the cros s

- r eference in U.S.S.G. § 2E1.4(a)(2) “should b e applied only if the crime encompassed ‘underly ing unlawful c onduct’ in a d d i t i on to that required to violate 18 U.S.C. § 1958.” I

d. T he E ig h th Circuit rejected this
arg ument, noting that it “is contrary to the plain lang uag e o f § 2E1.4(a), which does not contain an additional conduct requirement.” Id. ; see also United States v. Smith

, 755 F .3d 645, 647 (8th Ci r

. 2 0 1 4 ). The Eig hth Circuit h eld that the district court d id not err in calculating an offense level of 37. Dotson , 570 F .3d at 1070. 4

W e ag ree with the F irst and Eig hth Circuits; t h e b e st i nterpretation of U.S.S.G. § 2E1.4(a) is its plain meaning

. Section 2E1.4(a) instructs the use of the g reater of “(1) 32; o r (2) the offense level a

pplicable to the underlying unl awful conduct.” Solicitation to com mit murder is the unlawful conduct underly ing Temkin’s convi c tion under 18 U .S.C. § 1958(a), and the offense level for solicita t ion to commit murder involving the ex chang e of money i s gr eater than 32. I t may be true that solicitation to commit murder is routinely the u nlawful conduct underly ing a murd e r

- f o r

- h ire conviction. Thus, in determinin g t h e base offense level for

4 T h e Un i ted States District Co u rt f o r t h e District of New Mex ico h as also ad d ressed th e in terp lay b etw een U.S.S.G. § 2 A 1 .5 an d U.S.S.G. § 2 E1 .4
, reach in g th e sam e co n clu s i o n as th e First an d Eig h th Circu its. Un ited S ta tes v. S

u mmers , 50 6 F

. S u

p p . 2 d 6 8 6 , 6 9 5 (D.N.M. 2 0 0 7 ). In S u mmers , t h e Un ited States P ro b atio n O f f ice co n tacted th e Un ited States Sen ten cin g Co m

m i ssio n “ i n an ef

f o rt to o b t ain clarif

icatio n o n th e

a p p licatio n of § 2 E1 .4
, as th is g u id elin e is n o t co m m o n ly ap p lied in t h e District of New Mex ico .” Id

. at 6 9 2

. A Sen ten cin g Co m m issio n rep resen tativ e co n f

irm ed th at it w as p ro per to calcu late an o f f en se lev el of 3 7 f o r a v io latio n o f 1 8 U.S.C. § 19 5 8
, u sin g U .S.S.G. § 2 E1 .4 ( a )(2 )’ s

cro ss- ref eren ce to in co rp o rate U.S.S.G. § 2 A 1 .5 ’ s b ase o f f en se lev el o f 3 3

an d ad d in g f

o u r lev els f

o r th e ex ch an g e o f

m o n ey

. Id

.U N I T E D S T A T E S V

. T E M K I N 23

murder- f o r -hire under U.S.S.G. § 2E1.4, § 2E1.4(a)(2)’s

c r o s s-reference to U.S.S.G. § 2A1.5 will ty pically contr o l
g iven t h a t § 2A1.5’s base offense level has increased to 33. However, this does not “read out” the base offense level of 32 in U.S.S.G. § 2 E1.4(a)(1). R a t h e r, the Sentencing Commission u ses the cross-referencing provision in U.S.S.G. § 2E1.4(a) to ensure this Guidelines section keeps pace with increases to the b ase offense level set forth in U.S.S.G. § 2A1.5 and related Guidelines sections, while maintaining a minimum base offense level of 32. The plain lang uag e o f U.S.S.G. § 2E1.4(a) indicates that a sentencing judg e should “[ a] pply the g reater” of the two methods, and the crossreference method r e sults in the g reater offense level. T herefore, the district court committed procedural error b y failing to apply the cross-referencing provision in U.S.S.G. § 2E1.4(a)(2).

* * *

I n sum, under either Count 1 or Count 3, T e mkin’s offense level should have been set by U.S.S.G. § 2A1.5. The offense level for solicitati o n t o commit murder under U.S.S.G. § 2A1.5 is 37—33, with a 4

- level increase for the

“ offer or the receipt of any thing of p ecuniary value f o r undertaking the murder.” U.S.S.G. §§ 2A1.5(a), ( b)(1). According ly

, Temkin’s offense level is 37. 5 Thus, the district

5 A n o f f en se lev el o f 3 7 co rresp o n ds to a Gu id elin es ran g e o f 2 1 0

– 2 6 2

m o n th s f o r T em k in ’ s cr i m i n a l histo ry categ o ry o f I. T h e statu to ry

m ax im u m f or Co u n t 3
, 1 8 U.S.C. § 1 9 5 8 (a), is ten y ears (1 2 0 m o n t h s) if

n o p erso n al in

j u ry resu lts. Ho w ev er, th e statu t o ry m ax im u m u n d er Co u n t 2
, 1 8 U.S.C. § 1 9 5 1 (a), is tw en ty y ears (2 4 0 m o n th s). W h en sen ten cin g

o n m u ltip le co u n ts o f co n v ictio n , th e t o tal sen ten ce im p o sed m ay b e g reater th an

th e statu to ry m ax im

u m f o r a p articu lar co u n t. S

ee U.S.S.G. § 5 G1 .2 (b ); see a lso id

. , A p plicatio n No te 3

. Un d er U.S.S.G. § 5 G 1 .2 (d ),U N I T E D S T A T E S V

. T E M K I N 24

court erred in using a

n offense level of 3 2 to calculate Temkin’s Guidelines rang e.

The d istrict court’s error i n ca l c u lating the offense level

was not h arml e s s. The district c ourt must beg in its sentencing analy sis w i t h t h e correct Guidelines rang e

. See United S tates v. Munoz-Camarena
, 631 F .3d 1028, 1030 (9th Cir. 2011) (per curiam). W e cannot d eem this e rror harmless because the district court did not p erform any al t e r n ative analy sis or provide a

n y ex pla n at i o n for what the sentence would have been under an offense level of 37. See id. at 1030 n.5. W e must therefore vacate T e mkin’ s sentence a nd remand for resentencing

. B ecause t h e d istrict court e rred in calculatingthe proper Guidelines rang e, we do not reach the question of whether the sentence is substantively reasonable. See United States v. Kilby

, 443 F .3 d 1135, 1140 (9th Cir. 2006).

V. Conclusion

Sufficient evidence supports Temkin’s conviction. However, a t sentencing , the district court materially erred in calculating the proper Guidelines rang e. According ly

, we affirm all three counts of Temkin’s conviction, but vacate his sentence and remand for resentencing

.

AF F IRMED in part, V ACATED in part, a nd REMANDED.

“ [i]f th e sen ten ce im

p o sed o n th e co u

n t carry i n g th e h ig h est statu to ry

m ax im u m is less t

h an th e to t al p u

n i sh m en t, t

h en th e sen ten ce im

p o sed on

o n e o r m o re o f th e o th er co u n ts sh all ru n co n secu tiv ely

, bu t o n ly to t h e

ex ten t n ecessary to p ro d u ce a co m b i n ed sen t en ce eq u al to th e t o t al
p u n ish m en t.”