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United States v. Devorkin

November 03, 1998

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
DANIEL PAUL DEVORKIN, DEFENDANT-APPELLANT.



D.C. No. CR-97-00016-1-DWM

Before: William C. Canby, Jr. and A. Wallace Tashima, Circuit Judges, and Robert M. Takasugi, District Judge.*

The opinion of the court was delivered by: Tashima, Circuit Judge

FOR PUBLICATION

Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding

Argued and Submitted July 8, 1998--Seattle, Washington

Opinion by Judge A. Wallace Tashima

SUMMARY

Daniel Paul Devorkin pled guilty to a charge of solicitation of murder-for-hire in violation of 18 U.S.C. S 373 and was sentenced to a 108-month term of imprisonment. He appeals his sentence, contending that the statutory maximum term of imprisonment is five years, not 20 years, as the district court held. We have jurisdiction under 18 U.S.C. S 3742(a) and 28 U.S.C. S 1292, and we affirm.

I.

Devorkin, a Montana resident, contacted a confidential informant and asked him to kill Karen Ramsey, Devorkin's former spouse, who lived in Seattle, Washington. In return, Devorkin offered to kill the informant's former son-in-law. The informant contacted law enforcement officials and, after several monitored conversations with Devorkin, he introduced Devorkin to Special Agent Gunderson of the Bureau of Alcohol, Tobacco, and Firearms, who posed as a "hit man." At a motel in Montana, Devorkin gave Gunderson $500, one-half of the $1,000 price to commit the murder, and photographs of Ramsey. Devorkin was arrested at a second meeting with Gunderson at which Gunderson falsely told Devorkin that he had murdered Ramsey.

[1] Devorkin eventually pled guilty to a charge of solicitation of a crime of violence in violation of 18 U.S.C. S 373(a). Under that section, whoever solicits another person with the intent that the person

engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against . . . the person of another in violation of the laws of the United States . . . shall be imprisoned not more than one-half the maximum term of imprisonment or . . . if the crime solicited is punishable by life imprisonment or death, shall be imprisoned for not more than twenty years.

18 U.S.C. S 373(a). The underlying felony Devorkin solicited was murder-for-hire, under 18 U.S.C. S 1958. Section 1958 provides a sliding scale of punishment that depends on the outcome of the intended crime. If no injury occurs, the maximum term of imprisonment is 10 years. If personal injury results, the maximum sentence is 20 years' imprisonment. If death results, the offense is punishable by death or life imprisonment. See id.

Devorkin contends that since Ramsey was unharmed, the maximum sentence for violating S 373 is five years. He argues that the relevant maximum term of imprisonment under S 1958 is 10 years because Ramsey suffered no bodily injury as a result of the solicitation. Under this theory, one-half the maximum term for the underlying offense would be five years. The district court, while noting that Devorkin's interpretation of the statute was plausible, nonetheless ...


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