US v. Todd Spencer
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:13-cr-00131-RGD-LRL-1. Copies to all parties and the district court. [999681460].. [15-4060]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4060
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TODD ALLEN SPENCER, a/k/a Todd Alan Spencer,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.
Robert G. Doumar, Senior
District Judge. (2:13-cr-00131-RGD-LRL-1)
Submitted:
September 14, 2015
Before SHEDD and
Circuit Judge.
DUNCAN,
Circuit
Decided:
Judges,
October 20, 2015
and
DAVIS,
Senior
Vacated and remanded by unpublished per curiam opinion.
Geremy C. Kamens, Acting Federal Public Defender, Frances H.
Pratt, Rodolfo Cejas, II, Assistant Federal Public Defenders,
Alexandria, Virginia, for Appellant.
Dana J. Boente, United
States Attorney, William D. Muhr, Assistant United States
Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Todd Allen Spencer pled guilty to one count of threat to
injure
by
(2012).
communication,
in
violation
of
18
U.S.C.
§ 876(c)
The conviction stemmed from a letter Spencer mailed to
the Clerk of the United States District Court for the Eastern
District of Virginia.
month
sentence,
adjusting
his
Guidelines
On appeal, Spencer challenges his 46-
arguing
offense
Manual
that
the
level
district
pursuant
§ 2A6.1(b)(1)
(2014)
court
to
U.S.
because
erred
in
Sentencing
he
dried, powdery toothpaste in the letter’s envelope.
included
We vacate
Spencer’s sentence and remand for resentencing.
“We
review
deferential
the
reasonableness
abuse-of-discretion
of
standard,
a
sentence
first
under
ensuring
a
that
the district court committed no significant procedural error,
such as failing to calculate (or improperly calculating) the
Guidelines range.”
United States v. Cox, 744 F.3d 305, 308 (4th
Cir. 2014) (brackets and internal quotation marks omitted).
reviewing
the
district
court’s
application
of
the
In
Sentencing
Guidelines, we review factual findings for clear error and legal
conclusions de novo.
United States v. Strieper, 666 F.3d 288,
292 (4th Cir. 2012).
A
six-level
adjustment
is
appropriate
under
USSG
§ 2A6.1(b)(1) “[i]f the offense involved any conduct evidencing
an intent to carry out such threat.”
2
The application of this
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adjustment hinges on “‘the defendant’s intent and the likelihood
that
the
defendant
would
carry
out
the
threat.’”
United
States v. Worrell, 313 F.3d 867, 876 (4th Cir. 2002) (quoting
United States v. Gary, 18 F.3d 1123, 1128 (4th Cir. 1994)).
“The majority of circuit courts require that a defendant engage
in
some
form
enhancement.”
of
overt
act
before
sustaining
a
§ 2A6.1(b)(1)
United States v. Goynes, 175 F.3d 350, 353 (5th
Cir. 1999) (citing Gary, among other authority).
Accordingly,
“threats alone” are insufficient to support an adjustment under
§ 2A6.1(b)(1).
Id. at 355.
To determine if Spencer’s inclusion of dried toothpaste in
the
envelope
containing
his
letter
constitutes
“conduct
evidencing an intent to carry out such threat,” we must first
identify the threat(s) that Spencer’s letter communicated.
On
appeal, the Government argues that Spencer’s letter contains a
threat to kill or injure the recipient of the letter and a
threat to disrupt the workings of the district court. *
The
Government, however, did not present the latter interpretation
to the district court, and nothing in the record shows that the
*
Below, the Government also argued Spencer’s letter
contained a threat to place the recipient in fear of her life.
On appeal, the Government does not raise any argument regarding
this interpretation of the threat, thus abandoning it.
See
United States v. Powell, 666 F.3d 180, 185 n.4 (4th Cir. 2011)
(stating that Government abandons arguments raised below where
it does not present them in its appellate brief).
3
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court
relied
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on
this
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interpretation
§ 2A6.1(b)(1) adjustment.
when
imposing
the
Accordingly, we limit our review of
the propriety of the adjustment to the theory that Spencer’s
inclusion of the dried toothpaste constituted conduct evidencing
an intent to carry out a threat to kill or injure the recipient
of his letter.
See United States v. Llamas, 599 F.3d 381, 389
(4th Cir. 2010) (holding that appellate court must confine its
basis for upholding adjustment to theories relied on by district
court
and
“may
not
guess
at
the
district
court’s
rationale,
searching the record for . . . any . . . clues that might
explain a sentence” (internal quotation marks omitted)).
While the application notes to USSG § 2A6.1(b)(1) do not
discuss or provide any examples of what constitutes “conduct
evidencing an intent to carry out [a] threat,” the section does
cross-reference
USSG
threatened
of
use
§ 2A6.1(c).
§
2M6.1,
biological
which
agents
pertains
and
to
the
toxins.
use
See
or
USSG
The commentary to USSG § 2M6.1 does discuss when a
defendant’s conduct evidences an intent to carry out a threat.
USSG § 2M6.1 cmt. n.2.
Relevant here, a defendant does not
engage in conduct evidencing an intent to carry out a threat to
use a biological agent or toxin by dispersing a substance that
appears to be an agent or toxin but is not, and the defendant
knows
is
Applying
not,
this
an
actual
concept
to
biological
the
4
agent
underlying
or
toxin.
facts,
Id.
Spencer’s
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inclusion of a substance he knew to be dried toothpaste does not
constitute conduct evidencing an intent to carry out a threat to
kill or injure the recipient of his letter because it does not
show a subjective belief on Spencer’s part that he would carry
out the threat, or increase the likelihood that he would carry
it out.
that
the
See Worrell, 313 F.3d at 876.
district
court
erred
Accordingly, we conclude
in
applying
the
six-level
adjustment under USSG § 2A6.1(b)(1).
When
we
find
a
procedural
error
at
consider whether the error was harmless.
592 F.3d 572, 576 (4th Cir. 2010).
sentencing,
we
must
United States v. Lynn,
“A Guidelines error is
considered harmless if we determine that (1) the district court
would have reached the same result even if it had decided the
guidelines issue the other way, and (2) the sentence would be
reasonable even if the guidelines issue had been decided in the
defendant’s favor.”
United States v. Gomez-Jimenez, 750 F.3d
370, 382 (4th Cir.) (internal quotation marks omitted), cert.
denied, 135 S. Ct. 305, 384 (2014).
Because the error increased
Spencer’s Guidelines range and because nothing in the record
indicates that, absent the error, the district court would have
departed
upward
and
imposed
a
46-month
sentence,
we
cannot
conclude that the error was harmless.
Accordingly, we vacate Spencer’s sentence and remand for
resentencing
without
application
5
of
the
§ 2A6.1(b)(1)
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adjustment.
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We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before
this
court
and
argument
would
not
aid
the
decisional
process.
VACATED AND REMANDED
6
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