FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

EUGENE DARRYL TEMKIN,

Defendant-Appellant.

No. 12-50103

D.C. No.

2:10-cr-00813-

SVW-1

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

EUGENE DARRYL TEMKIN,

Defendant-Appellee.

No. 12-50136

D.C. No.

2:10-cr-00813-

SVW-1

OPINION

Appeal from the United States District Court

for the Central District of California

Stephen V. Wilson, District Judge, Presiding

Argued and Submitted

December 11, 2014—Pasadena, California

Filed August 13, 2015
2 UNITED STATES V. TEMKIN

Before: Kim McLane Wardlaw and Marsha S. Berzon,

Circuit Judges, and William E. Smith, Chief District

Judge.*

Opinion by Judge Wardlaw

SUMMARY**

Criminal Law

The panel affirmed convictions for solicitation to commit

a crime of violence, attempted extortion in violation of the

Hobbs Act, and use of interstate commerce facilities in the

commission of murder-for-hire; vacated the sentence; and

remanded for resentencing.

The panel held that sufficient evidence supported the

defendant’s convictions and the district court’s rejection of

the entrapment defense.

On the government’s cross-appeal, the panel held that in

applying the Sentencing Guidelines to the defendant’s

conviction under 18 U.S.C. § 1958 for use of interstate

commerce facilities in the commission of murder-for-hire, the

district court erred by using the base offense level of 32 set

forth in U.S.S.G. § 2E1.4(a)(1) rather than the cross-

* The Honorable William E. Smith, Chief District Judge for the U.S.

District Court for the District of Rhode Island, sitting by designation.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. TEMKIN 3

referencing provision in U.S.S.G. § 2E1.4(a)(2), where the

unlawful conduct underlying that conviction was solicitation

to commit murder, which, under U.S.S.G. § 2A1.5, yields an

offense level (33) that is greater than 32. With a 4-level

increase for the “offer or receipt of anything of pecuniary

value for undertaking the murder,” U.S.S.G. §§ 2A1.5(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 of 32 to calculate the defendant’s Guidelines

range. The panel held that this error was not harmless.

COUNSEL

Michael Clough (argued), Oakland, California, for

Defendant-Appellant/Cross-Appellee.

Mark R. Yohalem (argued), Elizabeth R. Yang and E. Martin

Estrada, Assistant United States Attorneys; Robert E.

Dugdale, Chief Assistant United States Attorney; André

Birotte Jr., United States Attorney, Los Angeles, California,

for Plaintiff-Appellee/Cross-Appellant.
4 UNITED STATES V. TEMKIN

OPINION

WARDLAW, Circuit Judge:

Eugene Darryl Temkin challenges the sufficiency of the

evidence underlying his three counts of conviction for

(1) solicitation to commit a crime of violence; (2) attempted

extortion in violation of the Hobbs Act; and (3) use of

interstate commerce facilities in the commission of

murder-for-hire. Temkin also raises the defense of

entrapment. While we conclude that sufficient evidence

supports Temkin’s convictions and that Temkin was not

entrapped, we agree with the Government that the district

court materially erred in calculating the correct base offense

level at sentencing. Accordingly, we affirm Temkin’s

conviction but vacate his sentence and remand for

resentencing.

I. Factual and Procedural Background

This dark tale arises from a failed gambling venture in

Equatorial Guinea, which was formed by two former drug

trafficking associates, defendant Temkin, and his associate of

more than twenty years, Michael Hershman. In 2000,

Temkin mortgaged property to loan Hershman and another

partner $500,000 as his stake in the gambling venture. When

the venture failed in 2003, everyone lost their money, but

Temkin also ultimately lost his mortgaged property. Temkin

began demanding repayment of the loan, and became

dissatisfied when Hershman sent him only about $1,000 a

week. In 2004, Temkin began a campaign of harassment and

threats against Hershman to get his money back. Although

Hershman ultimately returned the money through the

settlement of a lawsuit in 2006, Temkin escalated his
UNITED STATES V. TEMKIN 5

demands for the ever-increasing amounts of money he

believed Hershman still owed him, bombarding Hershman

with harassing and threatening phone calls and emails. 

Temkin next began “acting out” his obsession with getting

even more money from Hershman. He broke into and

emptied a Hershman family storage unit containing family

possessions and financial documents, and tracked down

Hershman’s hospitalized daughter by pretending to be her

uncle. Temkin hacked into Hershman’s email account and

computer, tracked his whereabouts in foreign countries, and

personally threatened Hershman, at one point brandishing a

.45-caliber gun at him.

Then Temkin got serious. He attempted to recruit

associates to assist in extorting and murdering Hershman. In

around 2006, Temkin suggested to Larry Morrison, a

computer-savvy drug dealer who had helped hack

Hershman’s computer to track him down in Belgium, that he

poison Hershman. Having researched options to kill

Hershman by poison, Morrison suggested instead that they

use a poison that had an antidote—they could poison

Hershman, extort his money, and then let him live; a

proposition Temkin rejected out of hand. Before they could

proceed on this course, Morrison was arrested for drug

trafficking.

Temkin then turned to John Malpezzi, a former attorney

convicted of drug trafficking, offering him money to kill

Hershman. Malpezzi visited Hershman at his Dominican

Republic gaming operation, and warned him of Temkin’s

extortion/murder plan. Malpezzi and Hershman turned to an

attorney for advice; the attorney advised Malpezzi to begin

recording his conversations with Temkin. Malpezzi took the

recordings to Los Angeles Sheriff’s Department detectives
6 UNITED STATES V. TEMKIN

who asked him to introduce Temkin to “Chet,” an undercover

sheriff’s detective who would pose as a hitman.

On November 21, 2009, Malpezzi and Chet met with

Temkin. Temkin had given “a great deal of thought” to

killing Hershman, and he and Chet continued to meet over the

next few months to work out a plan. Temkin proposed

pushing Hershman off a boat hundreds of miles from shore or

staging a “suicide.” At one point, Temkin also instructed

Chet to rape Hershman’s wife and daughter, while Hershman

and his son watched, in order to extort more money from

Hershman.

The Sheriff’s Department apprised the FBI of the

situation in December of 2009. The Sheriff’s Department

indicated that Temkin had given Chet everything that a

hitman would need except money, but they did not have

enough to file charges without the exchange of money. 

Therefore, in March of 2010, the Sheriff’s Department and

the FBI decided to “burn” the investigation by warning

Temkin that they were aware of his interactions with a known

hitman. Law enforcement informed Temkin that he was

being watched and instructed him to leave Hershman and

Hershman’s family alone.

In May 2010, after Temkin showed signs that he did not

intend to follow these instructions, an undercover FBI agent,

posing as a different hitman named “Pavel,” contacted

Temkin. During the initial call, Temkin indicated that he may

have secured the “services” of someone else, so Pavel agreed

to call Temkin back in one week. On July 7, 2010, Pavel

called Temkin and stated, “I understand that you may need

my services after all.” Temkin responded, “Well strangely

enough, yes.” Meeting the next day, July 8th, 2010, Temkin
UNITED STATES V. TEMKIN 7

told Pavel to “very strongly persuade [Hershman and his

business partner] to move the money from the Colombian

account into myMontevideo account.” Temkin indicated that

Pavel should force Hershman to transfer $15 million into

Temkin’s bank account. Temkin gave Pavel an address for

Hershman’s apartment in Spain, information about a bank

account through which Pavel could transfer the money to

Temkin, and copies of the intended victims’ passports. 

Temkin also instructed Pavel that he wanted Hershman,

Hershman’s wife, and Hershman’s business partner to “go for

a very long boat ride. Yes. Out to sea.” Temkin gave Pavel

$3,000 in cash to cover expenses, noting “[t]hat’s as much as

I can move.” At the end of the meeting, Pavel said to

Temkin, “I walk out [of] here, the job is done. They’re not

going to come back from the trip. It’s all done. You

understand that?” Temkin responded, “I understand that.”

After their July 8th meeting, Temkin left two voicemail

messages for Pavel. In the first, left on the evening of July

8th, Temkin stated that “there is some strong interest” in him

from law enforcement, and therefore they “might have to

rethink.” In a second message left on the morning of July

9th, Temkin indicated, using coded language, that another

plan “may work equally as well.” The calls went unreturned,

and Temkin was arrested on July 14, 2010.

Following a bench trial, Temkin was convicted of three

counts: (1) solicitation to commit a crime of violence under

18 U.S.C. § 373(a); (2) attempt to interfere with commerce by

threats and violence under 18 U.S.C. § 1951(a); and (3) the

use of interstate commerce facilities in the commission of

murder-for-hire under 18 U.S.C. § 1958(a) (“murder-forhire”). The district court sentenced Temkin to six years of

imprisonment and three years of supervised release. In this
8 UNITED STATES V. TEMKIN

timely appeal, Temkin challenges the sufficiency of the

evidence for all three counts and argues that he was

entrapped. In a cross-appeal, the Government challenges the

sentence imposed by the district court as both procedurally

and substantively unreasonable.

II. Jurisdiction and Standard of Review

We have jurisdiction to review Temkin’s conviction and

sentence under 18 U.S.C. § 3742(b) and 28 U.S.C. § 1291. 

Following a bench trial, a district court’s conclusions of law

are reviewed de novo and findings of fact are reviewed for

clear error. OneBeacon Ins. Co. v. Haas Indus., Inc.,

634 F.3d 1092, 1096 (9th Cir. 2011). In reviewing a district

court’s judgment in a bench trial, sufficient evidence supports

a conviction if, “viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319

(1979); see United States v. Magallon-Jimenez, 219 F.3d

1109, 1112 (9th Cir. 2000). “We review a district court’s

construction and interpretation of the United States

Sentencing Guidelines Manual (‘Guidelines’) de novo and its

application of the Guidelines to the facts for abuse of

discretion.” United States v. Popov, 742 F.3d 911, 914 (9th

Cir. 2014).

III. Conviction

A. Solicitation of a Crime of Violence

Under Count 1, Temkin was convicted of solicitation to

commit a crime of violence, namelymurder-for-hire. Temkin

argues that there was insufficient evidence to establish that he
UNITED STATES V. TEMKIN 9

“actually intended that Pavel kill Hershman.” Temkin first

argues that he created a condition precedent at his July 8,

2010 meeting with Pavel. Temkin asserts he knew that this

condition precedent would never be satisfied, and thus there

was insufficient evidence of his intent to go through with the

murder. Second, Temkin argues that even if there were

sufficient evidence to establish a plan to kill Hershman, he

later abandoned that plan in his July 8th and 9th voicemails

for Pavel. The district court rejected both arguments, finding

that “[a]t the July 8th meeting, the defendant just reached a

boiling point and crossed the line.” The district court found

that during that meeting “the defendant knowingly solicited,

commanded, induced or otherwise persuaded another to travel

in interstate or foreign commerce to commit murder for hire.” 

Sufficient evidence supports the district court’s findings and

verdict.

1. Condition Precedent

At the outset of the July 8, 2010 meeting, Temkin stated

that he planned to check with a “relative who’s ex-FBI” that

evening to determine the FBI’s “level of interest” in him. 

Temkin characterizes this statement as creating “a condition

precedent that he knew would never be satisfied.” However,

as the district court correctly reasoned, the remainder of the

meeting and Temkin’s subsequent voicemails confirm that

Temkin and Pavel reached a concrete deal during this

meeting.

Immediately after Temkin said he planned to check with

his ex-FBI relative, Pavel said he normally does one meeting

only and then “get[s] it done” with a “success rate [of]

100%.” To this, Temkin responded: “Perfect. Well, I need

it done.” Temkin did not express any contingencies or
10 UNITED STATES V. TEMKIN

reservations. While he did express a desire to check with his

ex-FBI relative, his statement to that effect could be

understood as indicating that he planned to do so as a

precaution meant to avoid detection by law enforcement. 

Then, during the meeting, Temkin provided Pavel with an

address for Hershman’s Southern Spain apartment,

information about a bank account for transferring the

extortion money, and copies of the intended victims’

passports. Temkin also instructed Pavel that the extortion

money should be moved into his Montevideo account, and

that the victims should be taken on a boat ride and lost at sea. 

Pavel, in turn, advised Temkin that the job would be done

when he left and confirmed that Temkin understood. Thus,

Temkin’s argument that the only permissible finding was that

checking with his ex-FBI relative was “a condition precedent

that he knew would never be satisfied” is unpersuasive. The

evidence is sufficient to allow any rational trier of fact to

find, beyond a reasonable doubt, that Temkin intended at the

July 8th meeting that Pavel kill Hershman. See Jackson,

443 U.S. at 319.

2. Abandonment

Next, Temkin argues that even if there were sufficient

evidence of his intent to solicit murder based on the July 8th

meeting, in his subsequent voicemails he abandoned the plan. 

The “voluntary and complete renunciation” of criminal intent

is an affirmative defense to the charge of solicitation. 

18 U.S.C. § 373(b). Section 373(b) provides, however, that

“[a] renunciation is not ‘voluntary and complete’ if it is

motivated in whole or in part by a decision to postpone the

commission of the crime until another time or to substitute

another victim or another but similar objective.” Id.
UNITED STATES V. TEMKIN 11

Temkin failed to meet his burden of proving a voluntary

and complete renunciation “by a preponderance of the

evidence.” Id. The district court correctly found that the July

8th and 9th voicemails indicate Temkin’s desire to avoid

detection by law enforcement and, at most, a decision to

delay—not to stop—the murder-for-hire. Viewing this

evidence in the light most favorable to the prosecution,

Jackson, 443 U.S. at 319, sufficient evidence supports the

district court’s rejection of Temkin’s renunciation defense.

B. Interference with Commerce by Threats or Violence

The Hobbs Act provides: “Whoever in any way or degree

obstructs, delays, or affects commerce or the movement of

any article or commodity in commerce, by . . . extortion or

attempts or conspires so to do, . . . shall be fined under this

title or imprisoned not more than twenty years, or both.” 

18 U.S.C. § 1951(a). Section 1951(b)(2) 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.” Under

Count 2, Temkin was convicted of knowingly attempting “to

intentionally obstruct, delay, and affect commerce, and the

movement of articles and commodities in commerce, by

extortion” in violation of the Hobbs Act. See 18 U.S.C.

§ 1951(a).

Sufficient evidence supports the district court’s

conclusion that Temkin took a substantial step toward

carrying out his plan to extort and kill Hershman. While

Temkin argues that he did not take a substantial step toward

extortion because his plan was based on fictions invented by

Malpezzi, factual impossibility is not a defense to an inchoate

offense, such as the attempt for which Temkin was convicted. 
12 UNITED STATES V. TEMKIN

See United States v. Fleming, 215 F.3d 930, 936 (9th Cir.

2000). Additionally, Temkin’s abandonment argument fails

because abandonment is not a defense when an attempt, as

here, “has proceeded well beyond preparation.” United States

v. Bussey, 507 F.2d 1096, 1098 (9th Cir. 1974). Temkin met

with Pavel, who he believed was a hitman, and gave him the

intended victims’ address and personal information, details

about a bank account where Pavel could transfer the money

he was to extort from Hershman, and $3,000 in cash. This

evidence supports the district court’s conclusion that

Temkin’s actions constituted a “substantial step,” as a

reasonable observer could conclude beyond a reasonable

doubt that Temkin gave Pavel all that was necessary to

provide him with the means of extorting and killing

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 the district’s court’s

conclusion that interstate commerce “would have been

affected in some way” by Temkin’s acts. To prove that

interstate commerce would have been affected for purposes

of the Hobbs Act, “the government need only establish that

a defendant’s acts had a de minimis effect on interstate

commerce.” United States v. Lynch, 437 F.3d 902, 908 (9th

Cir. 2006) (en banc) (per curiam). Furthermore, “[t]he

government need not show that a defendant’s acts actually

affected interstate commerce.” Id. at 909. Rather, proof of

a potential impact on interstate commerce is sufficient. Id.

Temkin’s conduct involved phone calls, emails, hacking into

email accounts, and the exchange of money; his extortion

plan would have involved international travel and an overseas

wire transfer. This evidence is more than sufficient to satisfy

the requirement of a de minimis effect on interstate

commerce. See United States v. Lee, 818 F.2d 302, 305 (4th
UNITED STATES V. TEMKIN 13

Cir. 1987).1 Viewing the evidence in the light most favorable

to the prosecution, the district court could have found the

essential elements of attempt to obstruct commerce by

extortion beyond a reasonable doubt. See Jackson, 443 U.S.

at 319.

C. Murder-for-Hire

Under Count 3, Temkin was convicted of using interstate

commerce facilities in the commission of murder-for-hire

under 18 U.S.C. § 1958(a). The statute includes, as an

element, that a defendant “travel[] in or cause[] another

(including the intended victim) to travel in interstate or

foreign commerce, or use[] or cause[] another (including the

intended victim) to use the mail or any facility of interstate or

foreign 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 July 7, 2010 phone call with

Pavel satisfies this requirement.

1 Temkin raises two additional arguments in connection with Count 2 of

the indictment, both of which are meritless. First, Temkin argues that

Count 2 is “fatally flawed” because it added the words “hire an

individual,” which are not included in the statute. The insertion of these

words could not have interfered with Temkin’s understanding of the

elements of the charged offense. See United States v. Woodruff, 50 F.3d

673, 676 (9th Cir. 1995) (“[A]n indictment is sufficient if it sets forth the

elements of the charged offense so as to ensure the right of the defendant

not to be placed in double jeopardy and to be informed of the offense

charged.”). If anything, Temkin was more informed of the charge against

him due to the added words. Temkin also argues that there is no federal

jurisdiction over Count 2 because his conduct could not have affected

commerce in the United States. As explained above, Temkin’s

threatening and harassing activities—phone calls, paying money to Pavel,

and use ofthe internet—easilysatisfy the interstate commerce requirement

of the federal statute.
14 UNITED STATES V. TEMKIN

The July 7th telephone call qualifies as use of a facility of

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, Temkin must have used the telephone “with intent

that a murder be committed.” 18 U.S.C. § 1958(a). The July

7th call reflects not only Temkin’s desire to hire Pavel but

also a strong sense of urgency. During the phone call,

Temkin expressed his desire to hire a hitman, agreed to

provide identifying information for the intended victims,

agreed to bring money to pay Pavel, and also expressed a

desire that Pavel execute the plan quickly. Viewing the

evidence in the light most favorable to the prosecution, a

rational trier of fact could have found beyond a reasonable

doubt that Temkin used the telephone, a facility of interstate

commerce, with the intent that a murder be committed. See

Jackson, 443 U.S. at 319.

D. Entrapment

The district court properly rejected Temkin’s entrapment

defense:

When a defendant asserts an entrapment

defense, the government must prove beyond a

reasonable doubt that he was not entrapped by

showing either: (1) the defendant was

predisposed to commit the crime before being

contacted by government agents; or (2) the

defendant was not induced by the government

agents to commit the crime.

United States v. Mejia, 559 F.3d 1113, 1116 (9th Cir. 2009)

(internal quotation marks omitted). The district court

correctly found predisposition. While we review entrapment,
UNITED STATES V. TEMKIN 15

a matter of law, de novo, we defer to credibility

determinations made by the factfinder, unless, viewing the

evidence in the light most favorable to the government, no

reasonable factfinder could have concluded the defendant was

either predisposed or not induced to commit the charged

offenses. See United States v. Si, 343 F.3d 1116, 1124–25

(9th Cir. 2003).

The district court correctly found that Temkin was

predisposed to commit the charged crimes, in part, because of

“the way he dealt with Malpezzi, and the way he acted with

‘Chet,’ the first hitman.”

In evaluating predisposition, we consider five

factors: (1) the character and reputation of the

defendant; (2) whether the government made

the initial suggestion of criminal activity;

(3) whether the defendant engaged in the

activity for profit; (4) whether the defendant

showed any reluctance; and (5) the nature of

the government’s inducement.

United States v. Jones, 231 F.3d 508, 518 (9th Cir. 2000). Of

these five factors, “the most important is the defendant’s

reluctance to engage in criminal activity.” Id. (internal

quotation marks omitted).

Long before Temkin came into contact with either the

Sheriff’s Department or FBI undercover hitmen, Temkin

became obsessed with getting even more money than

Hershman owed him. Temkin stole from Hershman’s storage

unit and fraudulently gained information regarding

Hershman’s hospitalized daughter. As the district court

noted, Temkin “is no stranger to law breaking as evidenced
16 UNITED STATES V. TEMKIN

by the breaking into the storage facility.” Temkin initiated

his first plan, to have Morrison poison Hershman, a plan

interrupted byMorrison’s arrest. Temkin then offered money

to Malpezzi to kill Hershman. Unbeknownst to Temkin,

Malpezzi,reluctant to participate in Temkin’s murder-for-hire

scheme, recorded their conversations and gave the recordings

to the Sheriff’s Department. It was only then that first “Chet”

and then “Pavel” entered the picture. But, with their

appearance on the scene, Temkin remained in charge of the

plan, giving detailed instructions, and acting more urgently. 

In an early meeting, Temkin instructed Chet that he wanted

Hershman killed and his family taken “as leverage.” Temkin

admitted he had given this plan “a great deal of thought.” At

one point, Temkin instructed Chet to rape Hershman’s wife

and daughter while Hershman and his son watched. Temkin

again took the lead in planning the extortion and murder in

his meetings with Pavel. Temkin did not show any reluctance

to engage in criminal activity. See United States v.

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

Law enforcement not only did not initiate the extortion

and murder plot; they became involved onlywhen it appeared

that Temkin was taking substantial steps toward carrying it

out. Moreover, besides revenge for a perceived wrong,

Temkin was determined to carry out this scheme to obtain

money, even after he had been repaid his initial loan. 

Because the district court correctly found that Temkin was

predisposed to commit the crimes charged, we need not

address inducement. See United States v. Williams, 547 F.3d

1187, 1197–99 (9th Cir. 2008). Sufficient evidence supports

the district court’s rejection of Temkin’s entrapment defense.
UNITED STATES V. TEMKIN 17

IV. Procedural Sentencing Error

The district court sentenced Temkin to six years of

imprisonment and three years of supervised release on each

of his three counts of conviction, to be served concurrently. 

The district court, relying on the guidance of the Probation

Office, calculated an offense level of 32 under U.S.S.G.

§ 2E1.4(a)(1), which governs the sentencing range for

murder-for-hire. However, Temkin’s correct offense level is

37 under U.S.S.G. § 2A1.5, which governs the sentencing

range for conspiracy or solicitation to commit murder. The

district court materially erred by using an offense level of 32,

rather than 37, to calculate Temkin’s sentencing range under

the Guidelines.

A. Base Offense Level for Count 1

In Count 1, Temkin was convicted of soliciting a crime of

violence under 18 U.S.C. § 373.2 Appendix A to the

Guidelines provides the offense guideline sections that are

applicable to the statute of conviction. See U.S. Sentencing

Guidelines Manual 541–63 (2010). The base offense level

for a violation of 18 U.S.C. § 373 is dictated by either

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

governs “Conspiracy or Solicitation to Commit Murder.” 

Section 2X1.1 governs solicitation offenses not covered by

other specific offense guidelines.

2 The parties agree that Count 2, attempted extortion in violation of the

Hobbs Act, yields a lower base offense level than does either Count 1 or

Count 3. To determine the offense level applicable to Temkin’s group of

offenses, the court must determine the count with the highest base offense

level. U.S.S.G. § 3D1.3(a). Therefore, we discuss calculation of the base

offense level for only Counts 1 and 3.
18 UNITED STATES V. TEMKIN

In Count 1, the “crime of violence” Temkin was

convicted of soliciting was murder-for-hire in violation of

18 U.S.C. § 1958(a). Solicitation to commit murder-for-hire

is a solicitation offense not specifically covered by its own

Guidelines section. Thus, U.S.S.G. § 2X1.1 is the correct

starting point for Count 1. Section 2X1.1 provides that the

base offense level from the guideline for the “substantive

offense” should be used to calculate the offense level. 

Section 2X1.1, Application Note 2 defines “substantive

offense” as “the offense that the defendant was convicted of

soliciting, attempting, or conspiring to commit,” here,

18 U.S.C. § 1958(a). Appendix A to the Guidelines indicates

that U.S.S.G. § 2E1.4 applies to determine the sentencing

range for a conviction under 18 U.S.C. § 1958. U.S.

Sentencing Guidelines Manual 554 (2010). Thus U.S.S.G.

§ 2E1.4 controls the base offense level for Count 1.

The Government argues 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 was not convicted of

solicitation to commit murder. Temkin was convicted of

solicitation to commit murder-for-hire in violation of

18 U.S.C. § 1958, and no Guidelines section expressly covers

solicitation to violate 18 U.S.C. § 1958. While it is true that

Temkin’s underlying conduct in Count 1 would include

solicitation to commit murder, U.S.S.G. § 2X1.1 instructs

courts to look to the underlying “substantive offense” and not

the underlying unlawful conduct.

Thus, in line with the Probation Office’s instructions and

the district court’s analysis, U.S.S.G. § 2X1.1, which in turn

leads to U.S.S.G. § 2E1.4, guides the base offense level

calculation for Count 1. Section 2E1.4 is also the applicable
UNITED STATES V. TEMKIN 19

Guidelines section for determining the sentencing range 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 greater of “(1) 32; or (2) the

offense level applicable to the underlying unlawful conduct.” 

Section 2E1.4, unlike U.S.S.G. § 2X1.1, instructs courts to

apply the offense level applicable to the underlying unlawful

conduct, not the underlying substantive offense. 

Accordingly, the district court erred by using the base offense

level of 32 set forth in U.S.S.G. § 2E1.4(a)(1). The district

court should have used the cross-referencing provision in

U.S.S.G. § 2E1.4(a)(2), because the unlawful conduct

underlying Temkin’s murder-for-hire conviction was

solicitation to commit murder, which yields an offense level

greater than 32. Under U.S.S.G. § 2A1.5, the base offense

level for solicitation to commit murder is 33, plus a 4-level

enhancement for the exchange of money. Thus, the correct

offense level for Temkin’s conviction is 37.

In 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 for conspiracy or solicitation to commit murder
20 UNITED STATES V. TEMKIN

was increased from 28 to 33.3 However, U.S.S.G. § 2E1.4,

which falls in the category of “offenses involving criminal

enterprises and racketeering,” remained unchanged. Before

the 2004 amendments, solicitation to commit murder

involving the exchange of money resulted in an offense level

of 32 under U.S.S.G. § 2A1.5. Section 2A1.5 set forth a base

offense level of 28 and provided a 4-level enhancement for

the exchange of money. The offense level for the use of

interstate commerce 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 exchange of money jumped

to 37 under U.S.S.G. § 2A1.5, which set forth the new base

offense level of 33, and, as before, added the 4-level

enhancement for the exchange of money. The two

subsections of U.S.S.G. § 2E1.4(a) enable the Guidelines

section to keep pace with changes to U.S.S.G. § 2A1.5, while

also maintaining a floor base offense level of 32. That 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 pace

with changes to U.S.S.G. § 2A1.5 and related Guidelines

sections by incorporating the offense level applicable to the

underlying unlawful conduct.

While we have not addressed the interplay between

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. 

In United States v. Vasco, the defendant, like Temkin, was

convicted of using interstate commerce facilities in the

3

See U.S. SENTENCING COMMISSION, Amendments to the Sentencing

Guidelines 6–7 (May 10, 2004), http://www.ussc.gov/sites/default/

files/pdf/amendment-process/reader-friendly-amendments/

20040430_RF_Amendments.pdf.
UNITED STATES V. TEMKIN 21

commission of murder-for-hire in violation of 18 U.S.C.

§ 1958. 564 F.3d 12, 15, 22 (1st Cir. 2009). At 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 found that the “‘underlying unlawful conduct’ was

solicitation to commit murder.” Id. Section 2A1.5(b)(1),

which corresponds to solicitation to commit murder,

establishes a base offense level of 33, increased by 4 levels

for the exchange of money. Accordingly, Vasco’s offense

level for his murder-for-hire conviction was 37 under

U.S.S.G. § 2A1.5. Vasco, 564 F.3d at 22. The First Circuit

noted that

[t]he reference in § 2E1.4 to a [base offense

level] of the greater of thirty-two or ‘the

offense level applicable to the underlying

conduct’ is curious, as virtually every time a

defendant is charged with the use of interstate

commerce facilities in the commission of

murder-for-hire, the underlying unlawful

conduct will be solicitation to commit murder.

Id. at 23. Nonetheless, the court concluded that “[w]e see no

impropriety in the district court’s having used the

cross-reference” in U.S.S.G. § 2E1.4(a)(2). Id.

In United States v. Dotson, the defendant was also

convicted of violating 18 U.S.C. § 1958 and was sentenced

using an offense level of 37. 570 F.3d 1067, 1069 (8th Cir.

2009). As in Vasco, the “district court cross-applied U.S.S.G.

§ 2A1.5 for Conspiracy or Solicitation to Commit Murder,

which has a base offense level of 33, and a 4-level increase if

the offense involved the offer or receipt of anything of

pecuniary value for undertaking the murder.” Id. Dotson
22 UNITED STATES V. TEMKIN

argued that the cross-reference in U.S.S.G. § 2E1.4(a)(2)

“should be applied onlyif the crime encompassed ‘underlying

unlawful conduct’ in addition to that required to violate

18 U.S.C. § 1958.” Id. The Eighth Circuit rejected this

argument, noting that it “is contrary to the plain language of

§ 2E1.4(a), which does not contain an additional conduct

requirement.” Id.; see also United States v. Smith, 755 F.3d

645, 647 (8th Cir. 2014). The Eighth Circuit held that the

district court did not err in calculating an offense level of 37.

Dotson, 570 F.3d at 1070.4

We agree with the First and Eighth Circuits; the best

interpretation of U.S.S.G. § 2E1.4(a) is its plain meaning. 

Section 2E1.4(a) instructs the use of the greater of “(1) 32; or

(2) the offense level applicable to the underlying unlawful

conduct.” Solicitation to commit murder is the unlawful

conduct underlying Temkin’s conviction under 18 U.S.C.

§ 1958(a), and the offense level for solicitation to commit

murder involving the exchange of money is greater than 32. 

It may be true that solicitation to commit murder is routinely

the unlawful conduct underlying a murder-for-hire

conviction. Thus, in determining the base offense level for

4 The United States District Court for the District of New Mexico has

also addressed the interplay between U.S.S.G. § 2A1.5 and U.S.S.G.

§ 2E1.4, reaching the same conclusion as the First and Eighth Circuits. 

United States v. Summers, 506 F. Supp. 2d 686, 695 (D.N.M. 2007). In

Summers, the United States Probation Office contacted the United States

Sentencing Commission “in an effort to obtain clarification on the

application of § 2E1.4, as this guideline is not commonly applied in the

District of New Mexico.” Id. at 692. A Sentencing Commission

representative confirmed that it was proper to calculate an offense level of

37 for a violation of 18 U.S.C. § 1958, using U.S.S.G. § 2E1.4(a)(2)’s

cross-reference to incorporate U.S.S.G. § 2A1.5’s base offense level of 33

and adding four levels for the exchange of money. Id.
UNITED STATES V. TEMKIN 23

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

cross-reference to U.S.S.G. § 2A1.5 will typically control

given that § 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. § 2E1.4(a)(1). Rather, the Sentencing

Commission uses the cross-referencingprovision in U.S.S.G.

§ 2E1.4(a) to ensure this Guidelines section keeps pace with

increases to the base 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 language of

U.S.S.G. § 2E1.4(a) indicates that a sentencing judge should

“[a]pply the greater” of the two methods, and the crossreference method results in the greater offense level. 

Therefore, the district court committed procedural error by

failing to apply the cross-referencing provision in U.S.S.G.

§ 2E1.4(a)(2).

* * *

In sum, under either Count 1 or Count 3, Temkin’s

offense level should have been set by U.S.S.G. § 2A1.5. The

offense level for solicitation to commit murder under

U.S.S.G. § 2A1.5 is 37—33, with a 4-level increase for the

“offer or the receipt of anything of pecuniary value for

undertaking the murder.” U.S.S.G. §§ 2A1.5(a), (b)(1). 

Accordingly, Temkin’s offense level is 37.5 Thus, the district

 

5 An offense level of 37 corresponds to a Guidelines range of 210–262

months for Temkin’s criminal history category of I. The statutory

maximum for Count 3, 18 U.S.C. § 1958(a), is ten years (120 months) if

no personal injury results. However, the statutory maximum under Count

2, 18 U.S.C. § 1951(a), is twenty years (240 months). When sentencing

on multiple counts of conviction, the total sentence imposed may be

greater than the statutory maximum for a particular count. See U.S.S.G.

§ 5G1.2(b); see also id., Application Note 3. Under U.S.S.G. § 5G1.2(d),
24 UNITED STATES V. TEMKIN

court erred in using an offense level of 32 to calculate

Temkin’s Guidelines range.

The district court’s error in calculating the offense level

was not harmless. The district court must begin its

sentencing analysis with the correct Guidelines range. See

United States v. Munoz-Camarena, 631 F.3d 1028, 1030 (9th

Cir. 2011) (per curiam). We cannot deem this error harmless

because the district court did not perform any alternative

analysis or provide any explanation for what the sentence

would have been under an offense level of 37. See id. at 1030

n.5. We must therefore vacate Temkin’s sentence and

remand for resentencing. Because the district court erred in

calculating the proper Guidelines range, we do not reach the

question of whether the sentence is substantively reasonable. 

See United States v. Kilby, 443 F.3d 1135, 1140 (9th Cir.

2006).

V. Conclusion

Sufficient evidence supports Temkin’s conviction. 

However, at sentencing, the district court materially erred in

calculating the proper Guidelines range. Accordingly, we

affirm all three counts of Temkin’s conviction, but vacate his

sentence and remand for resentencing.

AFFIRMED in part, VACATED in part, and

REMANDED.

“[i]f the sentence imposed on the count carrying the highest statutory

maximum is less than the total punishment, then the sentence imposed on

one or more of the other counts shall run consecutively, but only to the

extent necessary to produce a combined sentence equal to the total

punishment.”