US v. Todd Spencer

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 2:13-cr-00131-RGD-LRL-1. [1000020602]. [16-4026]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4026

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)

Argued:

December 8, 2016

Decided:

February 9, 2017

Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote
opinion, in which Judge Shedd and Judge Duncan joined.

the

ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant.
Richard Daniel Cooke,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender,
Rodolfo Cejas, II, Assistant Federal Public Defender, OFFICE OF
THE
FEDERAL
PUBLIC
DEFENDER,
Alexandria,
Virginia,
for
Appellant.
Dana J. Boente, United States Attorney, Alexandria,
Virginia, William D. Muhr, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for
Appellee.

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WILKINSON, Circuit Judge:
Todd Allen Spencer pleaded guilty to mailing a threatening
letter in violation of 18 U.S.C. § 876(c). The district court
deviated upward from the advisory Guidelines range to account
for the threat’s effect on the victim and imposed a 45-month
sentence.
Spencer now contends that his sentence was procedurally and
substantively

unreasonable.

For

the

reasons

that

follow,

we

affirm.
I.
On September 12, 2013, the clerk’s office of the federal
courthouse in Norfolk, Virginia received a letter from an inmate
at Chesapeake City Jail identified as “T.A. Spencer.” The letter
was covered in white powder and read, in part, as follows:
You never know when it can happen! The very letter you
hold may indeed be the last you hold. This letter may
contain on it what takes your last breath. Who knows?
Only time will tell. Good luck to you.
. . . .
Should you run? Should you stay? Who do you call to
make it all go away? Are you already infected with the
pain? What do you do? Is there anything to gain? Only
time will tell.
J.A. 14-15. The clerk who opened the letter was “disconcerted
and afraid”; at the instruction of the U.S. Marshals she locked
herself

alone

—

with

the

letter

—

in

the

mailroom

until

inspectors arrived. J.A. 15. In the course of the investigation,

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one inspector visited Spencer at Chesapeake City Jail, where he
admitted to sending the letter and explained that the powder was
dried toothpaste. He had included the powder “to enhance the
effect of the letter in order to put fear into the reader that
the white powdery substance was some type of poison.” Id.
On October 2, 2014, Spencer pleaded guilty to sending a
threatening

communication

in

violation

of

§ 876(c).

The

probation officer prepared a presentence report (“PSR”), which
recommended a base offense level of 12. The probation officer
then applied a six-level enhancement because, in his view, the
offense involved “conduct evidencing intent to carry out [the]
threat” contained in the letter. U.S. SENTENCING GUIDELINES MANUAL
§ 2A6.1(b)(1)
Spencer’s

(U.S. SENTENCING COMM’N

acceptance

of

2016).

responsibility

After

and

factoring

criminal

in

history

category, the PSR yielded an advisory Guidelines range of 37 to
46 months.
At the sentencing hearing on January 13, 2015, the district
court overruled Spencer’s objection to the six-level enhancement
and sentenced him to 46 months’ imprisonment. The district court
expressed

concern

about

the

“devastat[ing]”

impact

on

the

victim: “One can’t forget it. It’s like war. . . . You can’t
forget what people do when they face the ultimate.” J.A. 46, 59.
Given the “very, very serious” nature of the offense, the court

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observed

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that

the

Guidelines

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were

“very

kind”

and

therefore

imposed a sentence at the top of the advisory range. J.A. 60-61.
On appeal, this court found that the district court erred
in applying the six-level enhancement. United States v. Spencer,
628 F. App’x 867 (4th Cir. 2015). The court determined that
Spencer’s threat did not qualify for the § 2A6.1(b)(1) increase
because the use of harmless toothpaste did not suggest an intent
to

carry

out

Accordingly,

the

the

threat

panel

to

vacated

kill
and

or

injure

remanded

for

the

clerk.

resentencing

without application of the enhancement.
On January 12, 2016, the district court noted at the outset
of

the

Circuit’s

resentencing
mandate,

hearing
it

that,

would

not

in

light
apply

of
any

the

Fourth

additional

enhancements. But the court explained that a sentence in the
range of 21 to 27 months would be “totally inadequate” based on
the sentencing factors in 18 U.S.C. § 3553(a). J.A. 118. The
district court reiterated its concern about the need to “afford
adequate deterrence” to similarly situated offenders. J.A. 127.
The court also underscored the importance of providing “just
punishment” that reflected the serious nature of the offense:
“The lady who got that letter thought it was anthrax, and she
thought somebody had sentenced her to death.” J.A. 126-27.
Taking these “factors into consideration and the fact that
[Spencer] ha[s] successfully appealed the prior sentence,” the
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court decided to “upwardly depart” and imposed a sentence of 45
months. J.A. 128. The district court reasoned that the sentence
was “fair under the circumstances” and one that it “would have
given him if there had never been any . . . [Guidelines.]” J.A.
133.

Although

upward

the

court

departure,”

id.,

maintained
on

the

that

it

Statement

was

of

“strictly

Reasons

for

an
the

judgment it checked the box for a variance sentence and cited
the

§ 3553(a)

factors

as

the

basis

for

deviating

from

the

Guidelines, J.A. 244-45.
II.
We review a sentence for both procedural and substantive
reasonableness.

See

Gall

v.

United

States,

552

U.S.

38,

51

(2007). We first ensure that the district court committed no
significant procedural error, such as “improperly calculating[]
the

Guidelines

range,

.

.

.

selecting

a

sentence

based

on

clearly erroneous facts, or failing to adequately explain the
chosen sentence.” Id. If the sentence is procedurally sound, we
then

consider

its

substantive

reasonableness

under

a

“deferential abuse-of-discretion standard.” Id. at 52. While a
district court’s explanation for the sentence must “support the
degree

of

the

variance,”

id.

at

50,

it

need

not

find

“extraordinary circumstances” to justify a deviation from the
Guidelines, id. at 47. Rather, because district courts are “in a
superior position to find facts and judge their import,” all
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sentencing

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decisions

—

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“whether

inside,

just

outside,

or

significantly outside the Guidelines range” — are entitled to
“due deference.” Id. at 41, 51.
With

these

principles

in

mind,

we

turn

to

Spencer’s

procedural and substantive challenges to the sentence.
A.
Spencer first contends that the district court erred by
failing to provide advance notice of its intention to depart
from the advisory Guidelines range. See Fed. R. Crim. P. 32(h)
(requiring a district court to provide “reasonable notice” that
it is considering a departure from the Guidelines “on a ground
not identified for departure either in the presentence report or
in a party’s prehearing submission”). Spencer notes that the
district

court

repeatedly

characterized

the

sentence

as

an

upward “departure,” see J.A. 128, 133-35, yet never advised the
parties that it was contemplating such an action. Consequently,
he claims that he was deprived of the opportunity to challenge
the increased sentence. There are several difficulties with this
argument, which we address in turn.
For starters, the boundary between departures and variances
is

often

murky,

and

this

case

especially

confounds

the

distinction. Because the circumstances surrounding threats vary
substantially, § 2A6.1 gives district courts latitude to depart
from the Guidelines. See § 2A6.1 cmt. n.4(A). The provision does
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not set forth a comprehensive departure framework for threats
cases,
generic

but

instead

invites

departures

as

district

necessary.

courts

Id.

to

apply

(referencing

other

additional

departures in Chapter Five). Given the dearth of guidance for
capturing the seriousness of such a factually variable offense,
the

considerations

underlying

a

departure

in

a

threats

case

converge with those underlying a variance to an unusual degree.
Nonetheless,
sentencing
casual

a

procedure,

about

the

measure

of

and

district

course

the
it

formality

intended

must

court
to

mark

the

was

simply

too

undertake.

At

the

resentencing hearing the court repeatedly stated that it would
“upwardly depart,” see J.A. 128, 133-35, but its reasoning —
resting

on

the

§ 3553(a)

factors

rather

than

a

departure

provision — supported a variance, see J.A. 126-28. Likewise, on
the Statement of Reasons for the judgment the court checked the
box for a variance sentence and cited various § 3553(a) factors
as the basis for deviating from the Guidelines. J.A. 244-45.
While it may be true that “the practical effects of applying
either a departure or variance are the same,” see United States
v. Diosdado-Star, 630 F.3d 359, 365 (4th Cir. 2011), the court’s
colloquial migration between the two concepts was at a minimum
imprecise.
We

conclude,

nonetheless,

that

Spencer

cannot

establish

that any lack of notice affected his substantial rights. Because
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Spencer did not raise the issue in the district court, we review
for plain error. Fed. R. Crim. P. 52(b); Henderson v. United
States, 133 S. Ct. 1121, 1126-27 (2013). Spencer thus bears the
burden of showing “that, but for [the error claimed], the result
of the proceeding would have been different.” United States v.
Dominguez Benitez, 542 U.S. 74, 82 (2004).
Spencer summarily asserts that he was prejudiced by the
lack

of

formal

telegraphed

notice,

that

it

but

might

the

district

deviate

from

court

repeatedly

the

Guidelines.

Throughout the original sentencing hearing, the letter’s effect
on the victim was front and center. See J.A. 42–43, 46–47, 52,
54, 58–59. And it was no secret that the court was troubled by
the “very, very serious” nature of the offense: It stressed the
need to provide “just punishment” and “adequate deterrence” and
remarked that the initial Guidelines range was “very kind to
[Spencer].” J.A. 59-61. Accordingly, when the removal of the
§ 2A6.1(b)(1) enhancement resulted in an even lower Guidelines
range, Spencer had every reason to believe that the court might
adopt an above-Guidelines sentence. Indeed, at resentencing the
court stated that the original sentence was “fair and fit,” J.A.
127, and that it would have imposed the same sentence even if
the

Guidelines

had

not

applied,

J.A.

133.

Spencer

thus

had

numerous opportunities to address the district court’s concerns
about the letter’s effect upon the victim and “the record does
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not indicate that a statement announcing th[e] possibility [of
an

increased

sentence]

would

have

changed

the

parties’

presentations in any material way.” Irizarry v. United States,
553 U.S. 708, 715 (2008).
B.
Spencer

also

substantively
procedural
sentence

/

was

asserts

that

unreasonable.
substantive)
too

much.

his

His

sentence

substantive

argument

In

45-month

is

(or

is

hybrid

essentially

the

he

particular,

that
that

the

insists

severity of the sentence rested on improper sentencing factors
and unfounded factual findings. For the reasons that follow, we
disagree.
As

an

initial

matter,

we

simply

do

not

find

that

the

district court rested its sentence on improper grounds. Pursuant
to our mandate, the court made clear that it was not applying
any

additional

enhancements

at

resentencing.

Rather,

the

district court based its sentence on the intended effect on the
victim,
“totally

explaining
inadequate”

that

the

given

reduced

the

serious

Guidelines
nature

of

range
a

was

threat

accompanied by ostensible poison. J.A. 118. In other words, the
court tailored its sentence in light of traditional § 3553(a)
sentencing factors such as deterrence and punishment. See J.A.
127. This sort of particularized assessment is the hallmark of
individualized sentencing, see Gall, 552 U.S. at 50, and we see
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no reason to question the district court’s decision to deviate
from the Guidelines on this basis.
The inferences drawn by the district court here lay within
the bounds of its discretion. The trial court, to be sure, used
some vivid rhetoric in explaining the sentence, surmising that
the victim “thought somebody had sentenced her to death,” J.A.
127, and “it’s something one can’t forget. . . . It’s like war,”
J.A. 59. But these expressions were hardly divorced from the
facts of Spencer’s case. After all, Spencer had sent a letter
that

threatened

included

with

death.
the

To

compound

letter

dried

the

victim’s

toothpaste

horror,

that

he

resembled

anthrax. The U.S. Marshals took the threat seriously and ordered
the victim to lock herself in a confined space. And she waited
alone

with

determine

the
its

potential
true

toxin

nature.

until

From

the

these

authorities

facts,

the

could

rest

are

reasonable inferences that could be drawn by anyone confronted
with a “prank” that was distinctly unfunny.
We

are

mindful

explain

the

basis

that
for

we

have

their

charged

sentence.

district

courts

to

United

States

v.

See

Carter, 564 F.3d 325, 328-29 (4th Cir. 2009) (instructing that
the

district

individualized

court

must

rationale”);

“justify
see

also

[its]
Gall,

sentence
552

with

U.S.

at

an
50

(advising that the judge “must adequately explain the chosen
sentence to allow for meaningful appellate review and to promote
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the perception of fair sentencing”). But there is also a balance
to

be

struck.

We

want

trial

judges

to

offer

a

“rationale

tailored to the particular case at hand,” Carter, 564 F.3d at
330, but we also take seriously the Supreme Court’s injunction
that those same sentencing rationales are in turn entitled to
“due deference” on appeal, Gall, 552 U.S. at 51. The district
court’s expressions of dismay at Spencer’s actions were thus not
impermissible so long as they bore upon the § 3553(a) factors of
deterrence

and

punishment.

Indeed,

many

upward

departures

or

variances will be accompanied by some expression of concern that
the

Guidelines

do

not

reflect

the

full

seriousness

of

the

offense.
Spencer understandably objects to the increased sentence.
But he acknowledged that the court “has the right to impose a
sentence it deems sufficient but not greater than necessary.”
J.A. 120.

Although

substantial
U.S.S.G.

Spencer

disruption

of

§ 2A6.1(b)(4)(A),

contends

that

government
that

did

there

functions

not

deprive

was

here,
the

no
see

district

court of the right to apply the § 3553(a) factors, specifically,
in this age of unbalanced acts, the need to deter depredations
of this kind in the future. It was not error therefore for the
district
depends

court
on

the

to

recognize

indispensable

that
efforts

government’s
of

an

functioning

underappreciated

workforce and that no employee deserves to endure what Spencer
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indisputably intended for the recipient of the letter to endure
here.

The

district

court

could

reasonably

believe

that

the

effect on the victim was no small matter and, indeed, if there
be such a thing, that this was no ordinary threat. We hold that
its sentence was substantively reasonable. *
III.
The judgment of the district court is accordingly
AFFIRMED.

*

We decline to draw an inference of actual vindictiveness
from the district court’s acknowledgment on remand that Spencer
“successfully appealed the prior sentence.” J.A. 128. To be
sure, “[d]ue process requires that vindictiveness play no role
in resentencing the defendant.” United States v. Olivares, 292
F.3d 196, 198 (4th Cir. 2002). But this passing reference to an
appeal does not allow us to infer actual vindictiveness on the
part of the trial court, particularly where the district court’s
concern from the beginning rested on non-vindictive factors such
as the serious nature of this offense and the need to deter
others like it in the future.
12