17‐1827‐cr United States v. Yilmaz

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2018

(Submitted: December 10, 2018 Decided: December 13, 2018)

Docket No. 17‐1827‐cr

UNITED STATES OF AMERICA,

Appellee,

‐ against ‐

TOLGA SAFER YILMAZ,

Defendant‐Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

Before: SACK, PARKER, and CHIN, Circuit Judges.

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 monthsʹ imprisonment and three yearsʹ supervised release for stalking in violation of 18 U.S.C. § 2261A. Defendant‐appellant

contends that the district court erred by applying a two‐level 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.

Jane Kim and Sarah K. Eddy, Assistant United States Attorneys, for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, New York, for Appellee.

Jamesa J. Drake, Drake Law, LLC, Auburn, Maine, for Defendant‐Appellant.

PER CURIAM:

Defendant‐appellant 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

monthsʹ imprisonment and three yearsʹ supervised release. On appeal, Yilmaz

challenges the district courtʹs application of a two‐level sentence enhancement, in

accordance with the United States Sentencing Guidelines (the ʺGuidelinesʺ), for

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threatened use of a dangerous weapon. He also argues that his 37‐month

sentence is ʺincongruous with the sentences imposed on other similarly situated

defendants.ʺ Def. Appellantʹs Br. at 18.

In 2008, while in college in Oregon, Yilmaz met a female student (the

ʺVictimʺ). 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.

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We review the procedural and substantive reasonableness of a

sentence under a deferential abuse‐of‐discretion standard. United States v.

Thavaraja,

(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,

(2d Cir. 2008).

I. Procedural Reasonableness

Yilmaz argues that the two‐level 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 weapon‐related threat. This

argument is unpersuasive.

A district court commits procedural error when it, inter alia, ʺmakes

a mistake in its Guidelines calculation.ʺ United States v. Cavera,

(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 ʺpossession, or threatened use, of a dangerous

weaponʺ or a ʺpattern of activity involving stalking, threatening, harassing, or

assaulting the same victim.ʺ U.S.S.G. §§ 2A6.2(a), (b)(1)(D)‐(E). If the offense

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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 ʺdangerous weaponʺ 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 four‐level 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,

(2d Cir. 2003) (ʺWhere [] the language of the Guidelines

provision is plain, the plain language controls.ʺ). Clearly, a knife may be wielded

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as a dangerous weapon, and Yilmazʹs messages stated an intent to severely harm

or kill the Victim using such a weapon ‐‐ among the messages he sent her were

the statements ʺI will kill [her]ʺ; ʺI am going to slice [her] bodyʺ; ʺI am going to

riddle your bodyʺ; and ʺ[a]fter I cut your throat open.ʺ Present. Report ¶¶ 13, 14;

see Threaten, Oxford English Dictionary (2d ed. 1989) (defining threaten as to

ʺdeclare . . . oneʹs intention of inflicting injury uponʺ); United States v. Walker,

(1st Cir. 2011) (referring to appellantʹs vow to ʺblow [the victimʹs]

head offʺ as a ʺprototypical exampleʺ of evidence that ʺthe appellant placed [the

victims] in fear of harm through, in part, threats to use a gunʺ). Like the implied

use of a gun in the threat to ʺblow [the victimʹs] head offʺ in Walker, Yilmazʹs

threat to ʺslice [the Victimʹs] bodyʺ and ʺcut [her] throatʺ clearly implied the use

of a knife.

Moreover, the Guidelinesʹ Commentary indicates that displaying a

weapon is unnecessary as ʺa defendant [who] wrapped a hand in a towel during

a bank robbery to create the appearance of a gunʺ would be subject to an

enhancement concerning dangerous weapons. See U.S.S.G. § 1B1.1 cmt. n.1(E);

see also Stinson v. United States,

(1993) (ʺ[C]ommentary in the

Guidelines Manual that interprets or explains a guideline is authoritative unless

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it violates the Constitution or a federal statute, or is inconsistent with, or a

plainly erroneous reading of, that guideline.ʺ).

Finally, Yilmaz argues that the threatened use enhancement is

inapplicable because the Victim did not perceive the threat and find it credible.

We are not persuaded. The Guidelines do not require that the victim be aware of

the threat, as Section 2A6.2(b)(1)(D) simply requires that the offense ʺinvolvedʺ

the ʺpossession, or threatened use, of a dangerous weapon.ʺ See Mingo, 340 F.3d

at 114‐15. In any event, the record suggests that the Victim in fact perceived and

credited the threats. Accordingly, the district courtʹs application of the sentence

enhancement for threatened use of a dangerous weapon was appropriate and not

procedurally unreasonable.

II. Substantive Reasonableness

Although Yilmaz does not explicitly challenge the substantive

reasonableness of his sentence, he argues that his 37‐month sentence ʺis

incongruous with the sentences imposed on other similarly situated defendants.ʺ

Def. Appellantʹs Br. at 18. To the extent this is a challenge to the substantive

reasonableness of his sentence, it fails.

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ʺ[A] trial courtʹs sentencing decision will be classified as error only if

it ʹcannot be located within the range of permissible decisions.ʹʺ United States v.

Bonilla,

(2d Cir. 2010) (quoting Cavera,

). District

courts must consider the sentencing factors outlined in

(a), and

on review, we account for ʺthe totality of the circumstances, giving due deference

to the sentencing judgeʹs exercise of discretion.ʺ Cavera,

.

A 37‐month sentence for Yilmazʹs stalking of the Victim falls well

within the range of permissible sentences. See United States v. Lee,

, 13‐

15, 19 (1st Cir. 2015) (upholding 100‐month prison sentence for defendant who

sent his estranged wife 300 emails, some including threats, in addition to other

severe and threatening conduct); United States v. Ull, 370 F. Appʹx 225, 225‐27 (2d

Cir. 2010) (summary order) (upholding 18‐month prison sentence for defendant

who sent victim 1,400 messages between 1983 and 2007). Here, Yilmaz sent more

than 10,500 emails not only to the Victim, but also to her family, friends,

professors, coworkers, and supervisors. He falsely accused the Victim of

academic misconduct, threatened her with extreme violence and death, and

destructively impacted her private and professional life. In considering the §

3553(a) factors, the district court appropriately accounted for the severity and

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duration of Yilmazʹs conduct and the extent of the harm inflicted on the victim to

impose a sentence within the Guidelines range. As the district court observed,

the ʺoffense was quite horrific,ʺ and ʺMr. Yilmaz, it is safe to say, stole seven

years of peace of mind from his victim.ʺ Appʹx at 161.

CONCLUSION

For the reasons set forth above, the district courtʹs judgment is

AFFIRMED.

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