ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK Appeal from a judgment of conviction of the United States District Court for the Southern District of New York (Ramos, J.), sentencing defendant-appellant principally to 37 months’ imprisonment and three years’ supervised release for stalking in violation of 18 U.S.C. §2261A. Defendantappellant contends that the district court erred by applying a twolevel sentence enhancement under the United States Sentencing Guidelines for threatened use of a dangerous weapon. He also argues that his sentence is incongruous with sentences imposed on other similarly situated defendants.AFFIRMED.PER CURIAM:Defendantappellant Tolga Safer Yilmaz appeals from a judgment of conviction, entered June 8, 2017, following his guilty plea to one count of stalking, in violation of 18 U.S.C. §2261A. He was sentenced principally to 37 months’ imprisonment and three years’ supervised release. On appeal, Yilmaz challenges the district court’s application of a twolevel sentence enhancement, in accordance with the United States Sentencing Guidelines (the “Guidelines”), for threatened use of a dangerous weapon. He also argues that his 37month sentence is “incongruous with the sentences imposed on other similarly situated defendants.” Def. Appellant’s Br. at 18.In 2008, while in college in Oregon, Yilmaz met a female student (the “Victim”). The two dated on and off through the Spring 2009 semester. In Fall 2009, after he had graduated, Yilmaz began harassing and stalking the Victim, physically as well as by email. He continued to stalk, harass, intimidate, and threaten her for almost seven years. Indeed, between October 2011 and April 2016, he sent some 10,694 emails to the Victim and her professors, administrators, other university personnel, students, family members, and friends. On some days, Yilmaz sent hundreds of such emails.In Spring 2016, Yilmaz, who had returned to his home country, Turkey, began sending the Victim messages indicating that he was going to travel to New York — where the Victim had relocated — to confront her. He flew to Portland, Oregon in May 2016, where law enforcement officials arrested him. He was charged in the Southern District of New York with stalking, and he pled guilty and was sentenced as set forth above.We review the procedural and substantive reasonableness of a sentence under a deferential abuseofdiscretion standard. United States v. Thavaraja, 740 F.3d 253, 258 (2d Cir. 2014). This standard incorporates de novo review of questions of law, including our interpretation of the Guidelines, and clear error review of questions of fact. United States v. Legros, 529 F.3d 470, 474 (2d Cir. 2008).I. Procedural ReasonablenessYilmaz argues that the twolevel enhancement for threatened use of a dangerous weapon is inapplicable here because he never displayed a weapon, and the Victim did not perceive or find credible any weaponrelated threat. This argument is unpersuasive.A district court commits procedural error when it, inter alia, “makes a mistake in its Guidelines calculation.” United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008). The Guidelines provide that the base offense level for stalking, eighteen, may be increased two levels if an offense involved one of five specified aggravating factors, including the “possession, or threatened use, of a dangerous weapon” or a “pattern of activity involving stalking, threatening, harassing, or assaulting the same victim.” U.S.S.G. §§2A6.2(a), (b)(1)(D)(E). If the offense involved more than one of the five specified aggravating factors, the district court may increase by four levels. Id. §2A6.2(b)(1). Comments to the Guidelines define a “dangerous weapon” as(i) an instrument capable of inflicting death or serious bodily injury; or (ii) an object that is not an instrument capable of inflicting death or serious bodily injury but (I) closely resembles such an instrument; or (II) the defendant used the object in a manner that created the impression that the object was such an instrument (e.g. a defendant wrapped a hand in a towel during a bank robbery to create the appearance of a gun).Id. §1B1.1 cmt. n.1(E).Here, the district court imposed a fourlevel enhancement because it found the offense involved two aggravating factors: the threatened use of a dangerous weapon and a pattern of activity involving stalking, threatening, harassing, or assaulting the same victim. Id. §2A6.2(b)(1)(D), (E). Yilmaz does not challenge the application of the second aggravating factor for a pattern of activity.The plain language of Section 2A6.2(b)(1)(D) requires either possession or threatened use of a dangerous weapon, indicating that the latter alone is sufficient grounds for the enhancement to apply. See United States v. Mingo, 340 F.3d 112, 114 (2d Cir. 2003) (“Where [] the language of the Guidelines provision is plain, the plain language controls.”). Clearly, a knife may be wielded as a dangerous weapon, and Yilmaz’s messages stated an intent to severely harm or kill the Victim using such a weapon — among the messages he sent her were the statements “I will kill [her]“; “I am going to slice [her] body”; “I am going to riddle your body”; and “[a]fter I cut your throat open.” Present. Report
