United States Court of Appeals

For the First Circuit

No. 07-1520

UNITED STATES,

Appellee,

v.

GUILLERMO FREDERICO VASCO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

 Lynch, Chief Judge,

Lipez and Howard, Circuit Judges.

Melvin Norris with whom Richard J. Farrell, Jr. was on brief,

for appellant.

Sandra S. Bower, Assistant United States Attorney, with whom

Michael J. Sullivan, United States Attorney, and Mark T. Quinlivan,

Assistant United States Attorney, were on brief, for appellee.

April 17, 2009
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HOWARD, Circuit Judge. Guillermo Vasco was convicted of

five counts of using interstate commerce facilities in the

commission of murder-for-hire of his wife and daughter. See 18

U.S.C. § 1958. He appeals his convictions, arguing both that the

district court erred in failing to give an entrapment instruction

and that there was insufficient evidence to conclude that he

intended to hire someone to murder his daughter. He also appeals

his sentence, alleging errors in the application of the Sentencing

Guidelines and sentencing factor manipulation. We affirm.

I.

A. Background Facts

This case involves a kidnap and murder plot hatched by

Guillermo Vasco in late 2004 or early 2005, while he was

incarcerated at the Essex County, Massachusetts Correctional

Facility ("ECCF"). Vasco devised the plan with the assistance of

fellow inmate Kevin Perry, who unbeknownst to Vasco was a

government informant. For purposes of the sufficiency of evidence

challenge, we present the facts in the light most favorable to the

verdict. United States v. Marin, 523 F.3d 24, 27 (1st Cir. 2008).

Vasco had been arrested on state charges in May 2004 and

was in custody awaiting trial for allegedly assaulting and raping

his estranged wife Tricia Vasco in the presence of their infant

daughter Claudia. Over the course of several months, a friendship

developed between Vasco and Kevin Perry, another ECCF inmate.
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Eventually, Vasco asked Perry for assistance in finding someone to

kill Tricia. Vasco explained the criminal charges against him, and

that Tricia was set to testify against him on June 18, 2005. Vasco

also told Perry that he wanted his daughter kidnaped and taken to

a different country, but if that was impossible, he wanted her

killed as well. Perry, incarcerated on drug distribution charges

and facing a twenty-year statutory minimum sentence, had been

cooperating with the Bureau of Alcohol, Tobacco, Firearms and

Explosives ("ATF") in other investigations in hopes of reducing his

sentence. He contacted the ATF in March 2005 with information

about Vasco, which led to an ATF undercover investigation. 

Pursuant to the investigative plan, Perry was to give

Vasco specific instructions for contacting Perry's friend "Mike,"

a hit man who was in reality ATF Special Agent Kenneth Croke.

Vasco would write a letter to Mike, communicating the details of

his request. Mike's address was a post office box in Portland,

Maine.

Perry shared the instructions for contacting Mike with

Vasco. Perry also made handwritten notes, based on his

conversations with Vasco, containing detailed information about

Tricia, including maps of the house where she lived. In these

handwritten notes, under the heading "Questions," appears a

reference to Claudia: "Can Claudia be saved, brought to Germany or

other? (important) * (thru Canada)." The notes also disclosed that
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Vasco had established a code to use in discussing the murder.

Tricia would be referred to as a dog named "Nickie," Claudia as

Nickie's puppy "Candy," and the method of disappearance as

"bring[ing] to vet." Perry mailed these notes to the ATF. 

Several days later, Vasco wrote to Mike at the Portland

post office box. In the letter, Vasco wrote:

I've heard that our friends and their doggy

Nickie will take a trip down there, Ah? That

would be great if you could help them. But

Nickie is very old and sick. She won't

survive such trip . . . the only thing would

be to put Nickie to sleep . . . I know . . .

Sad but true . . . . She was soo loyal and

obidient. Anyways if so can she be buried

outside of Mass . . . ? Making sure that

Nickie will be 10 feet down and do not forget

the cement thing. Also I'd like to know if

Candy would be able to see the family if not

she must stay with Nickie down there. . . . I

wish there is a better choice. Will be much

more Nickie's . . . I promes ya . . . ok? In

the other hand I'll send a the money

collection that I mentioned. Remember that

it's value more than five thousand dollars . .

. . 

(Errors in original.) The letter was in Vasco's handwriting but

bore as a return address Perry's name and inmate number at ECCF.

Agent Croke retrieved this letter and, posing as Mike,

arranged to meet with Vasco at the ECCF on April 26. During their

meeting, which was secretly recorded by Croke, Vasco read aloud

from the "Nickie" letter, and when Croke asked who "Nickie" was,

Vasco responded, "My wife." Vasco showed to Croke photos of

Tricia, as well as pictures of Claudia, saying, "This is the
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puppy." Vasco described his wishes for Claudia: that the "puppy"

should go to Canada and from there to Vasco's mother in Ecuador.

They discussed details of how to execute the kidnaping. They also

discussed disposing of Tricia's body in a cement-filled oil drum to

be dropped in the ocean. Vasco made a reference to avoiding what

happened to Scott Peterson, who, in a highly publicized case in

California, had been convicted of murdering his wife after her

body, which he had disposed of in San Francisco Bay, floated to the

surface.

Vasco agreed to pay for Mike's services from Vasco's

"international money collection," valued by Vasco at between $5,000

and $10,000, and also through periodic installments once he had

been released from jail and was back in Ecuador. A friend of

Mike's (in reality another undercover ATF agent) would pick up the

money collection from Vasco's attorney. Perry had initially

offered to help Vasco pay for the hit man, but he did not repeat

the offer and Vasco did not take him up on it.

Over the next few weeks, Vasco and Croke had three

telephone conversations, also secretly recorded. On April 28,

Vasco and Croke discussed whether Vasco had developed "cold feet."

Perry had called Croke to tell him that Vasco had some concerns,

and when Vasco came on the line Croke told him that if he did not

want to go forward, that was "fine by me . . . I haven't put any

time or money into it . . . . [I]f, you know, you don't want to do
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it, it's, it's fine . . . ." Vasco responded that he did in fact

want to go forward with the plan. "[Y]ou just go ahead, oh,

absolutely go ahead and green light. . . . I need the stuff done."

At this time they also coordinated the delivery of the money

collection.

Vasco and Croke spoke the next day, April 29, and Croke

expressed disappointment that the money collection had been "a

little light." Croke told Vasco that Vasco would need to come up

with some up-front money to help defray the initial costs of the

murder. Vasco assured Croke that he would immediately arrange for

a payment of $400, although Croke received only $200. On May 16,

Croke told Vasco that "the project" was in its very final stages,

to be "completed very soon."

During this time, Tricia was contacted by the ATF and

agreed to help with the investigation by posing for photographs

that could be offered to Vasco to indicate that she was dead. 

On May 17, 2005, Croke, again posing as Mike, went to the

ECCF to meet with Vasco in person. In this meeting, Croke

announced that Tricia was dead, and showed Vasco photos of her

staged death. Vasco's response was to smile. Two weeks later,

after being interviewed by ATF agents about whether he knew

anything about the disappearance of his wife and daughter, Vasco

was confronted by Croke, informed that the operation had been a

sting, and arrested. Among Vasco's belongings recovered from his
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cell were a slip of paper containing Mike's name and the Portland,

Maine address, and an envelope of newspaper clippings about Scott

Peterson's trial for the murder of his wife, dating as far back as

October 2004. On the envelope was written "I Don't Want This That

happen To me." 

Vasco was charged with five counts of use of interstate

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

violation of 18 U.S.C. § 1958. Four counts related to the plot

against Tricia, based on the different occasions that Vasco had

used either the mail or the telephone to contact Croke. The fifth

count related to Claudia, based on the use of the mail,

specifically the "Nickie" letter. 

B. Procedural History

Vasco did not testify at his trial. He moved for a

judgment of acquittal at the close of the government's evidence,

and again at the close of all of the evidence. At the charge

conference, Vasco requested an instruction on entrapment. The

government objected to that request, and the court elected not to

deliver the instruction. Vasco renewed his objection to the

court's failure to deliver an entrapment instruction at the close

of the jury instructions.

 During deliberations, the jury sent the following note

to the court: "Should we be considering outside human influences

such as Kevin Perry when trying to determine whether or not it was
 We have not previously determined whether there may be 1

situations in which the actions of an individual who intends to

become (and eventually becomes) a formal informant, undertaken

before actually formalizing cooperation arrangements, are

attributable to the government. United States v. Young, 78 F.3d

758, 760 (1st Cir. 1996). As the resolution of this question has

no bearing on the outcome here, we proceed -- solely arguendo -- as

though Perry was a government actor.

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the defendant's intents [sic] on the murder of his wife." The

district court's proposed response -- to state that the government

must prove beyond a reasonable doubt all the elements of the

offenses charged in the indictment, and that the jury could

consider all the evidence in determining whether the government had

met its burden -- was accepted by both the government and Vasco,

and issued to the jury. Approximately one hour later, the jury

returned a verdict. Vasco was convicted on all five counts, and

the court later sentenced him to 240 months imprisonment.

We will address first Vasco's contention on appeal that

the district court erred in not giving an entrapment instruction.

II.

A. Entrapment Instruction

Vasco's entrapment instruction request was based on his

claim that he was "induced or persuaded by law enforcement officers

or their agents to commit a crime that he was not otherwise ready 1

and willing to commit." Because Vasco preserved his objection

below, we review the district court's refusal to instruct the jury

on entrapment de novo. United States v. Teleguz, 492 F.3d 80, 83
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(1st Cir. 2007). In doing so, we "examine the evidence in the

light most favorable to the accused so as to determine whether the

record supports an entrapment theory." United States v.

Shinderman, 515 F.3d 5, 13 (1st Cir. 2008).

Entrapment is an affirmative defense. Id. at 14. To be

entitled to an entrapment instruction, a defendant must adduce

"some hard evidence" that (i) government actors induced him to

commit the charged crime and (ii) he was not predisposed to commit

that crime. Id.; Young, 78 F.3d at 760 (citing United States v.

Rodríguez, 858 F.2d 809, 814 (1st Cir. 1988)). While this burden

is "modest," it "requires more than self-serving assertions."

Shinderman, 515 F.3d at 14; see also Young, 78 F.3d at 760 ("[A]

defendant must show hard evidence that, if believed, would lead a

reasonable person to the requisite conclusion; it is not enough

that there be doubt in the absence of evidence on a given point.")

(citations omitted).

We start with the question of whether Vasco produced the

requisite evidence of improper government inducement. To

demonstrate inducement, a defendant must show not only that the

government provided the defendant with the opportunity to commit

the crime, but also the existence of a "plus" factor that raises

concerns of "government overreaching." United States v. Gendron,

18 F.3d 955, 961-62 (1st Cir. 1994). Examples of overreaching

include "intimidation, threats, dogged insistence," Young, 78 F.3d
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at 761 (internal quotation marks and citation omitted), and

"excessive pressure," United States v. Turner, 501 F.3d 59, 70

(1st Cir. 2007).

The government concedes, for purposes of this appeal (at

oral argument, if not in its brief) that its actions provided Vasco

with the opportunity to commit the crime. The dispute thus hinges

on whether the record reveals overreaching by the government,

through such conduct as intimidation, threats, dogged insistence,

excessive pressure or exploitation of a noncriminal motive. Such

governmental overreaching is not present in this case. 

In Rodríguez, 858 F.2d at 811, we held that the defendant

had successfully demonstrated the existence of a plus factor

sufficient to show inducement. In that case, Rodríguez testified

that he was repeatedly pressured to sell drugs by a government

informant. The government agent "designed the plan, created the

opportunity for defendant's participation, made the initial

approach, solicited defendant forcefully, and displayed dogged

insistence until Rodríguez capitulated." Id. at 815. 

Vasco argues that the government's conduct here also

constitutes overreaching. We first consider Croke's conduct in the

meetings and phone calls. Contrary to Vasco's contention, Croke

displayed the opposite of "dogged insistence." Instead, Croke gave

Vasco the opportunity to back away from the crime when Perry

indicated that Vasco might be developing cold feet. Croke told
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Vasco that if he did not want to go forward with the plan that it

was "fine by me . . . I haven't put any time or money into it . .

. . [I]f, you know, you don't want to do it, it's, it's fine . .

. ." Vasco countered that he did indeed wish to go through with

the murder and the kidnaping. Moreover, not only did Croke give

Vasco an opportunity to avoid committing the crime, the record

establishes that he did not threaten, intimidate, forcefully

solicit, or otherwise play upon Vasco's non-criminal motives to get

him to commit the crime. See Gendron, 18 F.3d at 961-62 (listing

these examples of inducement).

Neither did Perry's conduct rise to the level of

intimidation, threats, dogged insistence, or excessive pressure.

Perry was certainly helpful in pulling together the plan: he

arranged the introduction to Croke, placed the phone calls using

his own PIN, and made suggestions for how to dispose of Tricia's

body. At Croke and Vasco's first meeting, in discussing how to

bury the body, Vasco referred to Perry and said, "it's pretty much

his idea," "it's his way to do this," and, "so he pretty much

helped me out with this." Taking these statements in the light

most favorable to Vasco, but also in the context of the entire

conversation, Vasco meant that burying Tricia's body in cement was

Perry's idea -- not the plan to murder her in the first place.

Perry's act of befriending Vasco was also not overreaching, because

Perry did not take advantage of the friendship by exploiting
 In addressing Perry's conduct, Vasco argues that the question 2

asked by the jury in the course of deliberations, whether to

consider the influence of Perry in determining whether Vasco had

the necessary criminal intent, indicated that the jury believed

that Perry was influential in Vasco's decision-making. But our

inquiry is focused on what the record evidence shows with respect

to inducement. 

 Vasco's citation to United States v. Luisi, 482 F.3d 43, 49 (1st

Cir. 2007), is inapposite. In Luisi, the district court determined

that the record facts merited an entrapment instruction. The

instruction, however, failed to make clear whether the allegedly

inducing statement (pressuring the defendant to commit drug crimes)

was attributable to the government agent, because the agent did not

make the statement directly to the defendant but rather

communicated it through a middleman. In concluding that the

entrapment instruction was erroneous, we pointed to a question from

the jury demonstrating confusion as to whether the statement was

attributable to the government. The facts of Luisi are not

remotely similar to those in this case. 

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Vasco's sympathy, or a similar motive, to entice him into the

scheme. See Turner, 501 F.3d at 70; see also Young, 78 F.3d at

761-62 ("[F]riendship, without a plea predicated upon friendship .

. . does not constitute sufficient inducement.").2

And, importantly, the record evidence strongly suggests

that Vasco committed the charged crimes free from government

coercion, intimidation, excessive pressure or dogged insistence.

For example, the record indicates that Vasco was the one who

broached the subject of killing his wife with Perry and that he

asked Perry for assistance in finding someone to commit the murder.

Vasco also wrote the letter containing a coded request to murder

his wife and daughter without assistance from Perry, adding Perry's

name and inmate number (without Perry's permission) as a return

address. And although Perry and Vasco had discussed the "Nickie"
 Vasco first raised this argument in his new trial motion. 3

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code that went into the letter (and Perry may have suggested using

a code in the first place) -- Perry testified that the use of codes

was the "usual thing[] that you do in prison when you want to do

things on the outside" -- Perry also testified that this code,

involving a dog and a puppy, was Vasco's idea. 

In sum, because Vasco failed to produce the requisite

evidence of government inducement, the district court was justified

in declining to issue an entrapment instruction. Accordingly, we

need not consider the question of Vasco's predisposition, beyond

what we have already discussed in assessing the evidence of

inducement. See United States v. Sánchez-Berríos, 424 F.3d 65, 76

n.4 (1st Cir. 2005).

For purposes of completeness, we note that Vasco also

argues, albeit in a fairly perfunctory manner, that the district

court should have given another, slightly different entrapment

instruction. Specifically, Vasco argues that even if the

government did not entrap him in the classic sense, it did lure him

into committing a federal crime by telling him to write and mail a

letter. Vasco failed to request an instruction on this theory of

defense which the government pegs as an allegation of

"manufacture[d] jurisdiction."3

There is no need here to discuss the contours of

manufactured jurisdiction, a theory of entrapment that we have yet
 The Second Circuit's decision in United States v. Archer, 486 4

F.2d 670 (2d Cir. 1973), has been credited by some as the source of

the manufactured jurisdiction concept. See United States v.

Wallace, 85 F.3d 1063, 1065 (2d Cir. 1996); United States v. Clark,

62 F.3d 110, 111-12 (5th Cir. 1995); United States v. Podolsky, 798

F.2d 177, 180 (7th Cir. 1986). The Second Circuit has itself noted

that "Courts that have construed Archer have taken pains to limit

its applicability, and to explain that 'manufactured jurisdiction'

as an independent doctrine is a dubious concept." Wallace, 85 F.3d

at 1065 (citations omitted).

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to examine in any detail. As we have said in the past, "[w]here 4

a defendant does not offer a particular instruction, and does not

rely on the theory of defense embodied in that instruction at

trial, the district court's failure to offer an instruction on that

theory sua sponte is not plain error." See United States v.

George, 448 F.3d 96, 100 (1st Cir. 2006). (quoting United States

v. Montgomery, 150 F.3d 983, 996 (9th Cir. 1998)). That rule

applies here. Moreover, because the concept of manufactured

jurisdiction is not well-developed in this circuit, and has been

questioned in others, the district court's decision to not issue a

manufactured jurisdiction instruction sua sponte could not have

been plain error. See United States v. Griffin, 524 F.3d 71, 76

(1st Cir. 2008) (defining a "plain error" as one that is "obvious

and clear under current law").

B. Sufficiency Challenge

We turn next to Vasco's claim that the evidence was

insufficient to convict him on Count Five, use of interstate
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commerce facilities in the commission of murder-for-hire of

Claudia. 

Where preserved, we review a challenge to the sufficiency

of the evidence de novo, examining the evidence in the light most

favorable to the jury's verdict. See United States v. CruzRodríguez, 541 F.3d 19, 26 (1st Cir. 2008). We must affirm if "we

conclude that a rational factfinder could find that the government

proved the essential elements of its case beyond a reasonable

doubt." Marin, 523 F.3d at 27.

It is a crime to use "the mail or any facility of

interstate or foreign commerce, with intent that a murder be

committed . . . as consideration for the receipt of, or as

consideration for a promise or agreement to pay, anything of

pecuniary value . . . ." 18 U.S.C. § 1958. Vasco suggests that

since the only mention of murdering Claudia is the coded reference

in the "Nickie" letter, and the rest of the evidence concerns

kidnaping her instead, he cannot be convicted under the statute

because his intent was to kidnap Claudia, not to murder her. The

doctrine of conditional intent renders the claim irrelevant.

Intent to commit a wrongful act may be demonstrated

through a showing that the intent is conditional. See Holloway v.

United States, 526 U.S. 1, 11 (1999) ("An intent to kill, in the

alterative, is nevertheless an intent to kill.") (internal

quotation marks and citation omitted). In the "Nickie" letter,
 In his supplemental brief, Vasco appears to launch an 5

abandonment or renunciation defense, suggesting at various points

that he may have "changed [his] mind" about killing his daughter.

Even assuming arguendo that such a defense could be advanced, see

United States v. Buttrick, 432 F.3d 373, 377 (1st Cir. 2005), it

would not be successful here. We have referred to the Model Penal

Code when discussing the abandonment defense. Id. at 376-77. The

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after requesting that Nickie be buried "10 feet down and do not

forget the cement thing," Vasco wrote, "Also I'd like to know if

Candy [code for Claudia] would be able to see the family if not she

must stay with Nickie down there." As the earlier communication

had established that sending Nickie to the vet was code for murder,

a reasonable jury could have found, based on the statement that

Candy "must stay with Nickie down there," that Vasco intended to

have Claudia killed, if she could not be abducted.

Vasco points out that the reference to Claudia in Perry's

handwritten notes sent to the ATF before the "Nickie" letter was

received suggests that Vasco desired to arrange Claudia's

kidnaping. Additionally, his communications with Croke and his

conversations with Perry mentioned Claudia in the context of

arranging her kidnaping and securing transportation to Ecuador.

Croke even acknowledged in his testimony at trial that at no time,

in all of his conversations on the phone or in person with Vasco,

did Vasco mention killing his daughter. But it was for the jury to

sort out competing evidence, and there was sufficient evidence to

support a conviction on Count Five based on Vasco's conditional

intent to murder Claudia. 

5
Code provides that where a defendant's "conduct would otherwise

constitute an attempt . . . it is an affirmative defense that he

abandoned his effort to commit the crime or otherwise prevented its

commission, under circumstances manifesting a complete and

voluntary renunciation of his criminal purpose." Model Penal Code

§ 5.01(4). The record makes plain that no such renunciation

occurred in this case.

 We apply the label "sentence factor manipulation" to the claim 6

Vasco describes as sentencing entrapment. See United States v.

Jaca-Nazario, 521 F.3d 50, 57 (1st Cir. 2008); United States v.

Montoya, 62 F.3d 1, 3 (1st Cir. 1995). 

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C. Sentencing

Lastly, we turn to Vasco's claims of sentencing error,

specifically (1) the court's use of a cross-reference provision

involving "underlying unlawful conduct;" (2) the court's decision

to "group" the convictions separately based on the two intended

victims; (3) the decision to impose a consecutive, rather than

concurrent, sentence on one count, allegedly in excess of the

statutory maximum sentence; and (4) that the government committed

sentence factor manipulation with respect to the changes involving

his daughter.6

We review legal challenges to the interpretation or

application of the Guidelines de novo. United States v. Rivera,

448 F.3d 82, 84 (1st Cir. 2006). If a defendant did not

specifically object at sentencing, however, we review for plain

error only. United States v. Brito, 427 F.3d 53, 66 (1st Cir.

2005). We review a district court's decision as to whether to

impose consecutive or concurrent terms of imprisonment for an abuse
 Vasco was sentenced under the 2006 Guidelines. 7

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of discretion. United States v. Ziskind, 471 F.3d 266, 268-69 (1st

Cir. 2007).

Vasco was convicted of five counts of using interstate

commerce facilities in the commission of murder-for-hire. As

provided in the Introductory Commentary to section 3D of the

Sentencing Guidelines, if a defendant is convicted on multiple

counts, a single offense level is calculated, utilizing the

Guidelines' rules for grouping offenses together. The sentencing 7

court counted Vasco's five convictions by grouping into one group

those relating to Tricia (Counts One through Four), but leaving

apart Count Five, relating to Claudia.

The commentary provides that the most serious offense is

then used as a starting point for determining the appropriate base

offense level ("BOL"). Here, the offenses are identical and thus

the starting point is the BOL for use of interstate commerce

facilities in the commission of murder-for-hire: the greater of

thirty-two or "the offense level applicable to the underlying

conduct." U.S.S.G. § 2E1.4. The application note to § 2E1.4

states, "If the underlying conduct violates state law, the offense

level corresponding to the most analogous federal offense is to be

used." Here, the court determined that the "underlying unlawful

conduct" was solicitation to commit murder. The analogous federal

offense, solicitation to commit murder, merited a BOL of thirty-
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three under § 2A1.5. Vasco's BOL was then increased from thirtythree to thirty-seven pursuant to § 2A1.5's provision for a fourlevel increase if the offense involved the offer of anything of

pecuniary value.

As Vasco's convictions were counted in two groups, the

court then adjusted Vasco's BOL upward two more levels pursuant to

§ 3D1.4 to account for the additional offense group reflecting an

equally serious conviction. The resulting BOL of thirty-nine

produced a Guidelines Sentencing Range ("GSR") of 262 to 327

months. Vasco was sentenced below the GSR to 240 months

imprisonment. 

The details of Vasco's claims are that: 1) where the

offense charged was that in § 2E1.4 (use of interstate commerce

facilities in commission of murder-for-hire), there should not have

been a cross-reference to § 2A1.5 (solicitation to commit murder);

and the cross-reference was impermissible under Apprendi v. New

Jersey, 530 U.S. 466 (2000); 2) the separate grouping of Counts One

through Four and Count Five, and the corresponding two-level

increase under § 3D1.4, was erroneous as all of the charged counts

were part of the same course of conduct; 3) his 240-month sentence

violated the statutory ten-year maximum term of imprisonment under

18 U.S.C. § 1958; and 4) the government committed sentence factor

manipulation. His first two arguments are reviewed de novo, his
 At sentencing, the court made note of this "anomaly" rendering 8

the BOL of thirty-two irrelevant in most, if not all, cases.

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third for an abuse of discretion, and his fourth, not raised at

sentencing, for plain error.

Vasco's first argument, that the district court erred in

cross-referencing § 2A1.5, fails. The reference in § 2E1.4 to a

BOL 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. Thus, the BOL for 8

the use of interstate commerce facilities in the commission of

murder-for-hire is thirty-three under the cross-reference to §

2A1.5. We see no impropriety in the district court's having used

the cross-reference. Nor did the court commit Apprendi error in

enhancing Vasco's sentence based on underlying conduct that

differed from the offense of conviction. A sentencing court may

make factual findings that result in an increase to a defendant's

sentence as long as the sentence imposed is within the default

statutory maximum. United States v. Perez-Ruiz, 353 F.3d 1, 15

(1st Cir. 2003). As we note later, the sentence here is within

that maximum.

Vasco's next argument amounts to a contention that all

five counts of conviction involved "substantially the same harm"
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and should have been grouped together, such that he should not have

been given a two-level increase under § 3D1.4 for the murder-forhire of Claudia. A sentencing court must group convictions

"involving substantially the same harm . . . together into a single

Group." U.S.S.G. § 3D1.2(b). "Substantially the same harm" is

defined as "counts involv[ing] the same victim and the same act or

transaction." U.S.S.G. § 3D1.2(a). Vasco argues that the "Nickie"

letter and the telephone calls to Croke were all part of the same

act or transaction, and thus all five counts should be grouped as

one. He ignores, however, the part of the definition of "same

harm" limiting the rule to counts involving the same victim.

Crimes involving multiple victims, even if the offenses arose out

of a single event, are properly grouped separately. See, e.g.,

United States v. Hernandez Coplin, 24 F.3d 312, 319 n.7 (1st Cir.

1994); see also United States v. Wolfe, 435 F.3d 1289, 1302 n.9

(10th Cir. 2006); United States v. Torrealba, 339 F.3d 1238, 1243

(11th Cir. 2003). The district court correctly imposed a two-level

increase under § 3D1.4 based on the two distinct groups of

offenses.

Vasco also makes a related argument concerning the

district court's decision to impose the 120-month sentence for

Count Five consecutively with the 120-month sentence for Counts One

through Four. Vasco contends that his cumulative sentence of 240

months imprisonment, 120 months for Counts One through Four and 120
 Vasco contends that United States v. Wynn, 987 F.2d 354, 358-59 9

(6th Cir. 1993) compels a different result. In Wynn, the Sixth

Circuit held only that "separate phone calls which relate to one

plan to murder one individual constitute only one violation of 18

U.S.C. § 1958." Id. at 359. Vasco was convicted of five counts of

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months for Count Five, exceeded the ten-year statutory maximum

applicable under section 1958. We review the court's decision for

an abuse of discretion. Ziskind, 471 F.3d at 268-69. 

The GSR of 262 to 327 months and the 240-month sentence

the district court imposed were both substantially greater than ten

years. The Guidelines, however, provide for such a scenario, in

which a defendant is sentenced on multiple counts of conviction, at

least one of which has a statutory maximum sentence, to a term of

imprisonment greater than the statutory maximum. See U.S.S.G. §

5G1.2(d) ("If 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.") (emphasis

added). In that event, the sentencing court stacks sentences,

imposing consecutive sentences in order to achieve the total

contemplated punishment. See United States v. Garcia-Torres, 341

F.3d 61, 74-76 (1st Cir. 2003). Thus, the district court's

decision to make the sentence for Count Five consecutive to the

concurrent sentences for Counts One through Four was not an abuse

of discretion and was in fact mandated by § 5G1.2(d).9
violating section 1958, related to a plan to murder two

individuals. 

 Under plain error review, Vasco must show: "(1) that an error 10

occurred (2) which was clear or obvious and which not only (3)

affected the defendant's substantial rights, but also (4) seriously

impaired the fairness, integrity, or public reputation of judicial

proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.

2001).

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Finally, we address Vasco's sentencing factor

manipulation argument. Vasco argues that killing Claudia was

included in the "Nickie" letter at the suggestion of the

government. Since that reference to killing Claudia was the basis

for Count Five and greatly increased the relevant penalties, Vasco

argues that the government committed sentence factor manipulation

and that the conviction relating to Claudia should not have been

considered in calculating his sentence under the Guidelines. 

In his effort to show plain error under United States v.

Olano, 507 U.S. 725 (1993), Vasco fails out of the gate. Sentence 10

factor manipulation occurs where the government "'improperly

enlarge[s] the scope or scale of [a] crime.'" United States v.

Fontes, 415 F.3d 174, 180 (1st Cir. 2005) (quoting Montoya, 62 F.3d

at 3). A defendant must establish sentence factor manipulation by

a preponderance of the evidence. Id. 

Here, there was simply no evidence at trial that the

government originated the idea of including a reference to killing

Claudia in the letter, or that the government encouraged Vasco to

include the reference. See id. Vasco told Perry that he wanted
 Vasco also argues in his pro se brief that the undercover 11

operation violated his Fifth and Sixth Amendment rights. We find

no merit in his contentions.

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his daughter kidnaped and taken to a different country, but if that

was impossible, he wanted her killed as well. And Perry instructed

Vasco to put in the letter what Vasco wanted the hit man to do. As

the government neither originated nor encouraged the inclusion of

Claudia in the letter, Vasco cannot show by a preponderance of the

evidence that the government committed "extraordinary misconduct"

in support of this end. It was not plain error for the district

court to decline to find such manipulation. 

In conclusion, for the reasons explained above, we affirm

Vasco's convictions and sentence.11