United States v. Guillermo Frederico Vasco

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

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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

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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"

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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

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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. Cruz-
Rodríguez, 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,

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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

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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

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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 thirty-
three to thirty-seven pursuant to § 2A1.5's provision for a four-
level 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

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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-for-
hire 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

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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

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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

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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

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