United States of America, Plaintiff-appellee, v. Anthony Thomas Torcasio, Defendant-appellant, 993 F.2d 368 (4th Cir. 1993)

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U.S. Court of Appeals for the Fourth Circuit - 993 F.2d 368 (4th Cir. 1993) Argued Dec. 6, 1991. Decided March 11, 1992. Amended Opinion Decided May 12, 1993

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston; John T. Copenhaver, Jr. District Judge.

Martha Purcell Rogers, Cadwalader, Wickersham & Taft, Washington, DC, argued (Ronald G. White, on brief), for defendant-appellant.

John Patrick Rowley, III, Asst. U.S. Atty., Charleston, WV, argued (Michael W. Carey, U.S. Atty., Michael L. Keller, Asst. U.S. Atty., on brief), for plaintiff-appellee.

Before LUTTIG, Circuit Judge, and BUTZNER and SPROUSE, Senior Circuit Judges.


In the previous opinion in this case, United States v. Torcasio, 959 F.2d 503 (4th Cir. 1992), we affirmed the judgment of the district court convicting Torcasio of aiding and abetting a state official in the commission of extortion in violation of the Hobbs Act, 18 U.S.C. § 1951, and for one count of perjury for lying to a grand jury, in violation of 18 U.S.C. § 1623. We remanded, however, for resentencing in view of our decision in United States v. Dunnigan, 944 F.2d 178 (4th Cir. 1991). The district court had adjusted Torcasio's sentence upward for the testimonial denial of guilt under Guideline § 3C1.1 of the United States Sentencing Guideline, and following Dunnigan we held this unconstitutional.

The United States Supreme Court has now reversed our Dunnigan decision, United States v. Dunnigan, --- U.S. ----, 113 S. Ct. 1111, 122 L. Ed. 2d 445 (1993). In view of this, we amend our first opinion in Torcasio, 959 F.2d 503 (4th Cir. 1992), by affirming the district court's judgment in its entirety, including the district court's sentencing actions.

The previously issued mandate shall be recalled and the mandate reissued immediately effecting the holding of the within opinion.