United States v. Anthony Smith

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3948
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United States of America, *
*
Appellee, *
*
v. *
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Robert Hackman, *
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Appellant. *
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Appeals from the United States
No. 09-3949 District Court for the
___________ Eastern District of Missouri.
United States of America, *
*
Appellee, * [PUBLISHED]
*
v. *
*
Teddy Kiriakidis, also known as *
Teddy Bogart, *
*
Appellant. *
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Submitted: September 20, 2010
Filed: January 10, 2011
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1The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.
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Before WOLLMAN, LOKEN, and HANSEN, Circuit Judges.
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HANSEN, Circuit Judge.
Robert Hackman and Teddy Kiriakidis appeal from sentences arising out of a
Missouri-based dog-fighting conspiracy. Each man pleaded guilty to conspiring to
engage in animal fighting ventures in violation of 18 U.S.C. § 371, and Hackman
additionally pleaded guilty to engaging in animal fighting ventures in violation of
7 U.S.C. § 2156. When sentencing each defendant, the district court1 applied an
upward departure provision found in the application notes to United States Sentencing
Guidelines (USSG or Guidelines) § 2E3.1. Each appellant argues that his relevant
conduct was not sufficiently cruel to warrant the upward departure. We disagree with
the appellants and affirm the district court.
I.
The undisputed portions of the relevant presentence investigation reports supply
the following facts: In January 2008, law enforcement began investigating a
conspiracy involving Hackman and Kiriakidis. Over a number of years, members of
the conspiracy bred, raised, trained, sold, and fought pit bull terriers. The men tested
and selected their dogs for aggressiveness and fighting ability. They did this by
holding test matches, called "rolls," and thereafter breeding what they believed to be
superior animals and killing or selling inferior animals. They also used the rolls to
prepare the fighting pit bull terriers for later "contract fights," where money is
wagered and referees enforce formal rules. Further, the men employed sophisticated

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techniques to condition the dogs to fight harder and longer, including weight training,
steroids, and medicine to treat injuries. Using these techniques, the conspiracy
produced sought-after fighting pit bull terriers. Hackman acknowledged his
reputation as a producer of respected fighting dogs, some of which he sold for up to
$2500.
One canine victim of this conspiracy, a pit bull terrier known as "Bo," provides
a microcosmic example of how the conspiracy operated. Kiriakidis owned Bo and
rolled him against a dog owned by Hackman. After the roll, Hackman purchased Bo
from Kiriakidis. Hackman sold the dog to a third individual for $1500. Just over a
month later, Hackman and Kiriakidis were present when Bo fought in a contract fight
lasting over one hour. Hackman placed a $300 wager, betting on Bo to win the fight.
After such fights, some of the coconspirators "would routinely inhumanely
abandon, destroy and otherwise dispose of Pit Bull Terriers that lost fighting
competitions, did not perform aggressively enough, or that became injured, wounded
or disabled as a result of participating in an animal fighting venture." (Hackman PSR
at 4.) On one such occasion, Kiriakidis hosted a contract fight between pit bull terriers
from Indiana and Oklahoma. After the two dogs fought for one hour and nineteen
minutes, one of the dogs was incapacitated and the dog's owner decided to kill her.
Kiriakidis supplied clips and wires, attached them to the dog, and was prepared to
plug in an electrical cord to begin to electrocute the dog when the dog's owner decided
that he should perform the execution. The owner plugged in the wire, and the dog
seized but did not die. A third party plugged the cord into a different outlet, supplying
an apparently more powerful electrical charge, and the dog finally expired.
After an eighteen-month investigation, law enforcement executed search
warrants at numerous locations. Law enforcement seized thirteen pit bull terriers from
Hackman's residence and twenty-four pit bull terriers from Kiriakidis's residence.
Law enforcement also seized numerous items associated with dog fighting from each

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2The Government argues that neither appellant preserved error in the district
court and also argues we should review each appellant's alleged errors only for clear
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man's residence. In all, law enforcement seized nearly two hundred pit bull terriers
from the conspirators.
Hackman and Kiriakidis were among five men indicted as a result of the
investigation. Hackman was indicted on four counts. He entered into a stipulation
and plea agreement wherein the Government agreed to dismiss two of the counts and
Hackman agreed to plead guilty to one count of conspiring to engage in animal
fighting ventures in violation of 18 U.S.C. § 371 and one count of engaging in animal
fighting ventures in violation of 7 U.S.C. § 2156. The applicable advisory sentencing
guidelines range was zero to six months, but the district court applied the upward
departure provision contained in USSG § 2E3.1 application note 2 and sentenced
Hackman to be incarcerated for twelve months and one day.
Similarly, Kiriakidis was indicted on two counts. Pursuant to a stipulation and
plea agreement he pleaded guilty to one count of conspiring to engage in animal
fighting ventures in violation of 18 U.S.C. § 371. The advisory sentencing guidelines
range for Kiriakidis was also zero to six months, but the district court departed
upwards and sentenced Kiriakidis to eighteen months' imprisonment.
II.
Hackman and Kiriakidis each appealed his respective sentence. On appeal of
a criminal sentence, "'we review de novo the district court's interpretation and
application of the Guidelines, we review for clear error the district court's factual
findings, and we review for an abuse of discretion the district court's decision to
depart from the appropriate Guideline range.'" United States v. Stewart, 509 F.3d 450,
453 (8th Cir. 2007) (quoting United States v. Peterson, 455 F.3d 834, 837 (8th Cir.
2006)) (marks omitted).2

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error. We acknowledge that this is a close question, but we need not decide whether
appellants preserved error because, even if we assume they did preserve error and we
apply the more strenuous standards of review detailed above, each appellant's claim
still fails.
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III.
A. Hackman.
Hackman argues that the district court erred in applying the upward departure
for extraordinary cruelty because his legally relevant conduct, as defined by the
Guidelines, does not amount to extraordinary cruelty, as that phrase is reasonably
interpreted. He contends that the district court improperly considered conduct that is
not legally relevant to his sentencing under the Guidelines. At the same time, he
argues that the district court erroneously interpreted the phrase extraordinary cruelty,
effectively allowing merely ordinary cruelty to qualify for the upward departure.
Because the legally relevant offense conduct amounts to extraordinary cruelty under
the Guidelines, we affirm the district court's sentence.
At the sentencing hearing, the district court found that Hackman repeatedly
engaged in animal fighting ventures as part of his connection to a culture of dog
fighting. The court found that Hackman raised and sold multiple dogs knowing that
the dogs would be employed in animal fighting ventures, knowing that some of those
dogs would die in combat, and knowing that other dogs would be severely injured and
then disposed of inhumanely. At the same time, the district court explicitly
recognized that Hackman was not alleged to have personally killed or maimed any of
the dogs.
The district court was entitled to accept as true any facts within the PSR to
which Hackman did not object specifically. See United States v. Razo-Guerra, 534
F.3d 970, 975 (8th Cir. 2008), cert. denied, Rubio-Guerrero v. United States, 129 S.

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Ct. 1365 (2009); Fed. R. Crim. P. 32(i)(3)(A). While Hackman asked the district
court to exercise its discretion to refuse to depart upward for extraordinary cruelty, he
did not challenge any specific fact in the PSR. Thus, the district court was entitled to
rely on the facts contained in the PSR in analyzing the applicability of the
enhancement.
The PSR describes Hackman's sustained involvement in a long-running
conspiracy to breed, raise, train, sell, and fight pit bull terriers. Hackman bought and
sold dogs from various members of the conspiracy and attended numerous dog fights.
He acted as referee for some fights and held the wagered money for others. After
these brutal contests, Hackman's coconspirators "would routinely inhumanely
abandon, destroy and otherwise dispose of Pit Bull Terriers that lost fighting
competitions, did not perform aggressively enough, or that became injured, wounded
or disabled as a result of participating in an animal fighting adventure." (Hackman
PSR at 4.) Further, the PSR recounted Hackman's attendance at two separate hour-
long dog fights, occurring approximately three months apart. The first of those fights
featured a dog Hackman had previously owned, and the second fight resulted in the
maiming and execution of one of the dogs. Nothing in the record suggests that the
two fights were unusual for this conspiracy. Those uncontested facts from the PSR
provide sufficient support to convince us that the district court did not clearly err in
finding that Hackman knew the dogs he sold could die or be maimed.
Section 2E3.1(a)(2) of the Guidelines provides a base offense level of ten for
an offense involving an animal fighting venture. Additionally, application note 2
allows for an upward departure "[i]f the offense involved extraordinary cruelty to an
animal that resulted in, for example, maiming or death to an animal." The Guidelines
define "offense" to mean "the offense of conviction and all relevant conduct under
[USSG] § 1B1.3." USSG § 1B1.1 comment. (n.1(H)). In turn, USSG §
1B1.3(a)(1)(A) defines relevant conduct to include "all acts and omissions committed,
aided, abetted, counseled, commanded, induced, procured, or willfully caused by the
defendant."

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Hackman does not argue that he did not aid or abet multiple animal fighting
ventures described in the PSR. He does contend, however, that the aforementioned
conduct does not amount to extraordinary cruelty under a reasonable interpretation of
the statute. He argues that the district court erroneously interpreted the phrase
extraordinary cruelty, effectively allowing merely ordinary cruelty to qualify for the
upward departure.
We employ basic rules of statutory construction when interpreting the
Guidelines, United States v. Parker, 267 F.3d 839, 847 (8th Cir. 2001), cert. denied,
535 U.S. 1101 (2002), and an application note is as binding on a district court as the
guideline that it explains unless the note "is plainly erroneous, conflicts with the
Constitution, a federal statute, or the guideline" itself, United States v. Smith, 282
F.3d 1045, 1047 (8th Cir. 2002). The Guidelines do not define extraordinary cruelty.
Hackman does not argue that application note 2 is plainly erroneous or conflicts with
other law. "We therefore turn to the ordinary meaning of the terms to guide our
review" of such application notes. Parker, 267 F.3d at 847.
Endeavoring to ascertain the ordinary meaning of a word, this court often relies
on a dictionary. See, e.g., id. (considering ordinary meaning of "violence" and
"sadism"). As relevant to this case, Webster's Dictionary defines "extraordinary" as
"more than ordinary," "not of the ordinary order or pattern," "going beyond what is
usual, regular, common, or customary," "not following the general pattern or norm,"
"exceptional to a very marked extent," "most unusual," "far from common," "very
outstanding," "very remarkable," "rarely equaled," "singular, phenomenal," "having
little or no precedent and usu[ally] totally unexpected," "very curious, strange, or
surprising," or "amazing." Webster's Third New International Dictionary, 807 (1986).
Black's Law Dictionary defines extraordinary as "out of the ordinary; exceeding the
usual, average, or normal measure or degree; beyond or out of the common order or
rule; not usual, regular, or of a customary kind; remarkable; uncommon; rare."

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Black's Law Dictionary, 699 (4th ed. 1968). While those definitions of extraordinary
perhaps reflect a continuum of extraordinariness, and the rule of lenity may counsel
us to apply an interpretation of extraordinary favoring Hackman if more than one
reasonable definition may apply, see Rowe v. Lockhart, 736 F.2d 457, 461 (8th Cir.
1984) (noting "ambiguities in criminal statutes must be resolved in favor of lenity"
which "applies to sentencing as well as substantive provisions"), the egregious facts
of this case relieve us of the necessity of defining extraordinary with etymological
precision. Hackman's offenses involved extraordinary cruelty under any ordinary
meaning of that phrase.
At sentencing, Hackman acknowledged that dog fighting was a way of life for
him and that he had been involved in it so long that he did not see it as wrong. He
acknowledged being part of this particular conspiracy since before 2008. He
acknowledged selling multiple pit bull terriers over the course of this conspiracy, and
thirteen pit bull terriers were seized from his residence on the day of his arrest. The
conspiracy involved numerous other men engaged in the same activities, for their
mutual enjoyment and benefit. The record shows that the conspirators, including
Hackman, selectively bred pit bull terriers for ferocity and fighting ability. They
trained the dogs with harnesses, treadmills, and practice fights. They administered
steroids and other drugs both before and after fights. All of this was to improve the
dogs' ability to maim and kill each other. Hackman brags that he succeeded; his dogs'
bloodlines were praised and his dogs were sold for up to $2500. The conspirators
allowed these dogs to fight for over one hour at a time. All of that necessarily
increases the harm the dogs are capable of inflicting, and conversely are subject to
receiving, in turn increasing the cruelty of the endeavor. Whether we read
extraordinary to mean merely "more than ordinary" or "rarely equaled," our de novo
legal review demonstrates that the district court did not err in interpreting the statute.
Nor did it abuse its discretion in deciding to depart upward from the base offense
level.

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Intertwined with Hackman's statutory interpretation argument, Hackman
contends that to label his conduct as extraordinarily cruel would "double count"
certain conduct—accounting for the conduct once to arrive at the base offense level
and a second time to support the upward departure. "Double counting occurs when
'one part of the Guidelines is applied to increase a defendant's punishment on account
of a kind of harm that has already been fully accounted for by application of another
part of the Guidelines.'" United States v. Zech, 553 F.3d 663, 668 (8th Cir. 2009)
(quoting United States v. Pena, 339 F.3d 715, 719 (8th Cir. 2003)). Impermissible
double counting does not occur if the conduct enhancing the punishment addresses
conceptually separate sentencing notions. Id. Hackman pleaded guilty to knowingly
buying, selling, delivering, possessing, training, or transporting pit bulls for the
purposes of having the animals participate in animal fighting ventures,
7 U.S.C. § 2156, and to conspiring to violate the same statute, 18 U.S.C. § 371. A
plain reading indicates that those statutes were violated by Hackman many times over;
he garnered an offense level of ten for merely possessing one fighting pit bull terrier,
regardless of whether any cruelty was involved. As detailed above, Hackman did
much more than possess fighting pit bulls. He bred, raised, trained, sold, and fought
them knowing that the dogs would be allowed, if not required, to fight until severely
injured or dead. Thus, the ordinary cruelty inherent in dog fighting justifies the base
offense level, while the extraordinary cruelty of Hackman's crimes separately justifies
the upward departure. Further, the same factor can be considered twice "'if the factor
is present to an exceptional degree.'" Pena, 339 F.3d at 719 (quoting Koon v. United
States, 518 U.S. 81, 96 (1996)). As the foregoing demonstrates, cruelty is present to
an exceptional degree in this case.
B. Kiriakidis.
Kiriakidis makes essentially the same arguments as Hackman. The relevant
conduct—breeding, raising, training, selling, and fighting pit bull terriers—is nearly
identical, with one substantial addition: Kiriakidis promoted, facilitated, hosted, and

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refereed a dog fight lasting one hour and nineteen minutes, wherein a pit bull terrier
was severely injured. Then, he assisted in the inhumane execution of the dog by
connecting electrical wires to the dog in advance of the execution. Thus, the maiming
and electrocution of the dog were clearly acts "aided, abetted, counseled, . . . [and]
procured" by Kiriakidis under USSG § 1B1.3(a)(1)(A). We note Kiriakidis's
argument that the execution cannot be relevant conduct because the killing was
sanctioned by the dog's owner, and we find it unnecessary to decide the issue.
Whether the execution was legal under Missouri law, a proposition we find extremely
suspect, is not dispositive because the plain language of the upward departure
provision states that the maiming of a dog is enough to satisfy the extraordinary
cruelty requirement. As the discussion of Hackman's crimes demonstrates, the district
court did not err in interpreting USSG § 2E3.1 application note 2, nor did the district
court abuse its discretion by applying the extraordinary cruelty upward departure to
Kiriakidis's conduct.
IV.
Accordingly, the judgment of the district court is affirmed with respect to each
appellant.
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