USA v. Drew Mann

Filing

OPINION filed : AFFIRMED Manns's sentence, decision not for publication. Martha Craig Daughtrey, Circuit Judge; Raymond M. Kethledge, Circuit Judge and Jane Branstetter Stranch, Circuit Judge, AUTHORING.

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NOT RECOMMENDED FOR PUBLICATION
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FILED

No. 16-4266

May 31, 2017
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DREW D. MANNS,
Defendant-Appellant.

BEFORE:

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE NORTHERN
DISTRICT OF OHIO
OPINION

DAUGHTREY, KETHLEDGE, and STRANCH, Circuit Judges.

JANE B. STRANCH, Circuit Judge. Drew Manns pleaded guilty to four counts of
mailing threatening communications and sending false information. He was sentenced to 51
months’ imprisonment.

Manns challenges the district court’s application of a sentencing

enhancement under § USSG 3A1.2(a) and (b), which increased his total offense level under the
Sentencing Guidelines by six levels. Because the district court properly applied the sentencing
enhancement, we AFFIRM Manns’s sentence.
I.

BACKGROUND

In August 2014, Drew Manns was incarcerated in Ohio’s Marion Correctional Institution,
serving a five-year sentence for a state crime. On August 21, the Summit County Prosecutor’s
Office in Akron, Ohio, received an envelope addressed to its Criminal Division, with a return
address from Robert Penn at Marion Correctional Institution. The envelope contained a letter
with “ANTHRAX!!!” written across the top, and a message stating that the sender intended to

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“murder” the recipients with anthrax, apparently in retribution for giving the sender “15 years to
life, back in August 1994.”1 The envelope also contained a white powder. Two floors of the
building were placed under lock-down procedures as the Akron Fire Department sent a Hazmat
crew to secure the letter and substance. Upon testing the powder, the Akron Fire Department
determined it to be a low-calorie sugar substitute. Marion Correctional Institution was contacted
about the incident, and Penn was placed into segregation pending investigation. The following
day, August 22, the Summit County Clerk of Courts’ office received a similar letter,2 reading
“Anthrax” across the top, with the same return address and white powdered substance inside the
envelope. The Clerk of Courts underwent the same lockdown procedures and Hazmat protocols.
The substance was once again found to be a low-calorie sugar substitute.
When investigators interviewed Penn about the letters, he denied sending them or having
any knowledge of their existence. Instead, he provided investigators with the name of another
inmate: Manns. Penn believed Manns “was upset with” him, in part because of a dispute over an
AVI vending card, which inmates use to purchase snacks. A few days after Penn’s interview, an
officer at Marion Correctional Institution received an anonymous letter under his door. In the
letter, the writer stated that Penn had told him that he wanted to retaliate against Summit County,

1

The text of the letter read:
You bastards gave me 15 years to life, back in August 1994. It’s now Aug
2014, for 20 fucken years, I’ve sat behind these bitch ass walls. Now ur niggaz
time is up. You all will fucken die now. You bitches will remember this nigga.
You bitches can’t do shit else to me. I committed murda w/a gun, now I
committed murder wit anthrax. You bitches killed me, now /’ma kill you. You
can’t give me any more time and you can’t take away what this time took
already. But I took ur niggaz life. Rest in piss bitches!!!

2

The body of the letter to the Summit County Clerk of Courts’ office read:
You bitches took my life. You gave me 15-life in Aug 94, it’s now Aug 2014,
for 20 fucken years, you cowards made me sit behind these walls, now I put you
niggaz left in the ground. I killed by gun, now I kill by Anthrax. Rest in piss
bitches!!!

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specifically through use of an anthrax letter. The writer also admitted to providing the sugar
used to simulate anthrax.
Upon a search of Manns’s cell, a box of “Sweet Sprinkles,” a sugar substitute, was
recovered, as well as a paper listing Penn’s name, inmate number, and the words “11(vending
card w/money ½ and ½).” When investigators interviewed Manns, he stated that he believed that
Penn had stolen his AVI vending card and that he had taken down Penn’s information to file a
grievance against him with the warden. Manns denied sending the letters to Summit County or
writing them for Penn.
The three letters—the two Anthrax letters sent to Summit County and the anonymous
letter left at Marion Correctional Institution—were sent to the Ohio Bureau of Criminal
Investigation for forensic handwriting testing, along with samples from both Penn and Manns.
A forensic examiner determined that all three letters matched the handwriting sample provided
by Manns. Penn and Manns were interviewed again in November 2014. Penn told investigators
that Manns had admitted to sending the letters because he “wanted to get back at him” and told
Penn that he “didn’t believe it was going to become such a big deal.” Manns denied telling Penn
any such thing, and again denied sending the letters. He did, however, tell investigators that he
had “retaliated against other inmates and corrections officers in the past for what he perceived to
be injustices committed against him.”
Investigative subpoenas were sent to Marion Correctional Institution for copies of emails
and recorded telephone conversations by Manns for a period of time before the Anthrax letters
were sent to Summit County. Emails between Manns and his fiancée, Pamela Nichols, revealed
Manns’s frustration and animosity towards an “old guy” in his bunk and at having his AVI
vending card stolen. On August 13, 2014, a little over a week before the Anthrax letters were

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received in Summit County, Manns asked Nichols to look up information about Robert Penn,
including the county he was from, his charges, his sentence, and how long he had been in prison.
When Manns spoke with Nichols later that same night, she provided him with the requested
information. On the morning of August 22, Manns wrote to Nichols: “OH…..i took care of that
guy who stole my shit. Dont worry, nothing can come bk on me, i was careful and cautious
about what I did.”
Manns was named in an indictment on May 6, 2015, charging him with two counts under
18 U.S.C. § 876(c) for Mailing Threatening Communications and two counts under 18 U.S.C.
§ 1038(a)(1) for sending False Information and Hoaxes. Manns pleaded guilty without a plea
agreement.
At sentencing, Manns’s attorney highlighted the impact that Manns’s physical and mental
conditions have had on his life. Manns was born with significant birth defects as a result of his
mother’s use of Accutane, an acne medication, while pregnant. In particular, Manns suffers from
Fragile X Syndrome, a genetic condition that causes intellectual disability, as well as behavioral
and learning challenges. Manns was also born with Goldenhar’s Syndrome, a condition that
caused significant physical deformities at birth, including incomplete brain development, an
asymmetric head shape, and the absence of his left ear. Manns had several reconstructive
surgeries as a small child and experienced delays in motor development. In addition to these
challenges, Manns has been diagnosed with Bi-Polar Disorder, depression, and schizophrenia.
The district court agreed with Manns’s attorney that these conditions constituted a “significant
cognitive deficit” that has “impaired [Manns’s] ability to make good decisions.”
Manns’s attorney also emphasized that Manns’s physical conditions and small stature
have made him the target of bullying throughout his life. He stated that Penn was one such

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bully, subjecting Manns to physical and emotional abuse while he was at Marion Correctional
Institution. When Manns reported this abuse, the prison apparently told him that his only
recourse would be to go into solitary confinement, which would cause him to lose visitation and
other privileges. Instead, Manns chose “the worst path,” opting to attempt to frame Penn for the
Anthrax letters to induce separation between them.
Following the Pre-Sentence Investigation Report (PSR), the district court calculated
Manns’s total offense level to be 24, including a six level-increase based on the application of
the enhancement under USSG § 3A1.2, for “Official Victims.” The court reduced the total
offense level to 21 based on Manns’s acceptance of responsibility and timely guilty plea.
The district court further reduced his total offense level by four points, pursuant to USSG
§§ 5H1.3 and 5H1.4, due to Manns’s mental and physical conditions. With a total offense level
of 17 and a Criminal History Category of VI, the district court calculated the sentencing range
under the Guidelines to be 51 to 63 months. The district court sentenced Manns to 51 months, to
run consecutively to his existing sentence for state charges. Manns now appeals his sentence,
arguing that the district court erred in applying the “Official Victim” enhancement.
II.
A.

ANALYSIS

Standard of Review

We review the reasonableness of a district court’s sentence under the abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). This deferential standard involves
examining both the procedural and substantive reasonableness of a sentence. United States v.
Erpenbeck, 532 F.3d 423, 430 (6th Cir. 2008). A sentence is procedurally unreasonable when
the district court has committed a “significant procedural error, such as failing to calculate
(or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to

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consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence.” Gall, 552 U.S. at 51. “We review de novo a district
court’s application of the Sentencing Guidelines when that application involves mixed questions
of law and fact. . . . [and w]e review for clear error a district court’s finding of fact in connection
with sentencing.” United States v. Stafford, 721 F.3d 380, 400 (6th Cir. 2013) (quoting United
States v. Hayes, 135 F.3d 435, 437 (6th Cir. 1998)).
The Government contends that plain error review applies to one of Manns’s arguments—
that the sentencing enhancement should not apply because he was not motivated by the victims’
status as government employees—arguing that the objection was not preserved. “A party must
object with that reasonable degree of specificity which would have adequately apprised the trial
court of the true basis for his objection.” United States v. Bostic, 371 F.3d 865, 871 (6th Cir.
2004) (internal quotation marks and citation omitted). United States v. Simmons, 587 F.3d 348
(6th Cir. 2009), explains why. An empty objection, such as “to the ‘procedural . . . aspect[]’ of
the sentence,” id. at 355, would limit the district court’s ability to correct errors because it would
penalize “a party’s specificity: vague responses would guarantee that any new objection made on
appeal will be subject to a less deferential standard of review and specific responses would result
in the forfeiture of all other objections that were not explicitly made,” id. at 357. Where a party
fails to object or does so “at such a high degree of generality that the district court has no
opportunity to correct its purported error and the court of appeals has been deprived of a more
detailed record to review,” plain error review will be applied on appeal. Id. at 358.
The Bostic question aims for practical specificity and Manns’s objection satisfies that
goal. He identified the enhancement he objected to in writing, at the sentencing hearing, and in
response to the Bostic question; he specifically highlighted reasons he thought the enhancement

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under USSG § 3A1.2 did not apply. The district court had notice of Manns’s arguments and an
adequate opportunity to address them; the record is satisfactory for our review.

Manns’s

objection to the use of the enhancement under USSG § 3A1.2 at sentencing was sufficiently
specific, and we apply de novo review to his arguments on appeal.
B.

“Official Victim” Enhancement

Manns objects to the use of the sentencing enhancement under USSG § 3A1.2(a) and (b),
which increases a defendant’s total offense level by six points:
(a) If (1) the victim was (A) a government officer or employee; . . .
and (2) the offense of conviction was motivated by such status[;]
(b) If subsection (a)(1) and (2) apply, and the applicable Chapter
Two guideline is from Chapter Two, Part A (Offenses Against the
Person).
Manns concedes that at least one of the victims of his offense was a government officer
or employee, and that the applicable Chapter Two Guideline is from Part A.

He argues,

however, that the enhancement should not apply because Manns’s conduct was not motivated by
the victims’ status as government employees, that there was no specified individual victim, and
because the victims were employees of the state, not federal, government. We examine each
argument in turn.
1.

Motivation of Manns’s Conduct

Manns first argues that the district court improperly applied the enhancement because his
conduct was not motivated by the official status of the government employees, as required under
§ 3A1.2(a)(2). Manns states that his conduct was motivated by a personal dispute with a private
citizen, Penn, not the government status of the recipients. Manns points to the explanation in the
Guidelines Commentary that the subsection “means that the offense of conviction was motivated
by the fact that the victim was a government officer or employee” and “would not apply, for
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example, where both the defendant and victim were employed by the same government agency
and the offense was motivated by a personal dispute.” USSG § 3A1.2, cmt. 3.
In United States v. Talley, 164 F.3d 989, 1004 (6th Cir. 1999), we determined that the
enhancement in § 3A1.2 was properly applied because the defendant knew that his intended
victim was an FBI agent and his goal was to derail an ongoing federal investigation against him.
Manns argues that his desire to get Penn in trouble and prevent any further bullying distinguishes
Talley. But Talley provides support for use of the enhancement here because Manns also knew
that the recipients were government employees, and his intention was to spur official action
against Penn. The enhancement does not require that the defendant’s conduct be motivated by
personal animus against the government employee. Indeed, the Guidelines Commentary seeks to
eliminate this possibility by providing that conduct motivated by a personal dispute, where the
victim just happened to be a government employee, would not be covered by the enhancement.
See USSG § 3A1.2, cmt. 3.
When addressing Manns’s objection to the enhancement at the sentencing hearing, the
district court stated that the “issue is not [Manns’s] intent; it is the logical implications and
consequences of what he does.” The court highlighted the reason why Manns sent the Anthrax
letters to the Summit County Prosecutor’s Office and Clerk of Courts: they knew about Penn,
would trace the Anthrax letter to him, “prosecute him again and get him out of [Manns’s] hair.”
Manns specifically sent the letters to government offices that had a history with Penn, using
Penn’s name, to create problems for Penn. This is sufficient to show that Manns was “motivated
by” the government status of the recipients.
The Ninth Circuit came to the same conclusion in United States v. McAninch, 994 F.2d
1380, 1386 (9th Cir. 1993), a similar case in which the defendant sent threatening letters to

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President George H.W. Bush and signed the names of two men he was attempting to frame. The
court rejected the defendant’s contention that he was not motivated by President Bush’s official
status, finding that the letter “referred to the President’s official duties,” and “the purpose of the
communication evidently was to implicate its purported author in unlawful activities that would
attract the attention of the authorities.” Id. Manns knew these specific government offices had
been involved with Penn’s case and he sought to attract their attention to Penn and create adverse
consequences for him.
The other cases Manns cites do not change our conclusion. To the contrary, they support
the application of this enhancement to Manns because he sought to cause the government offices
to take official action against Penn. See United States v. Conaway, 713 F.3d 897, 902 (7th Cir.
2013) (applying the enhancement where the defendant intended to influence the actions of
various federal agencies by using specific threats that showed he “anticipated a response from
law enforcement”); United States v. Bailey, 961 F.2d 180, 182-83 (11th Cir. 1992) (finding that
the defendant was motivated by a federal mail carrier’s official status when he sought money
orders and knew that a mail carrier would be in possession of them).
Manns also argues that Penn would have faced the same repercussions had Manns sent
the threatening letters to private citizens. We do not share his certainty. As the Government
points out, directing the letter to an “office full of government employees against whom Penn
could be expected to hold a grudge” lent credence to the idea that Penn himself sent the letter,
and also maximized the impact of the fake anthrax. Sending the letter and white powdered
substance to a government office set off a logical chain of events leading to official
consequences for Penn, including his rapid seclusion. The motivation for Manns’s conduct was
to punish Penn and have him removed from the prison’s general population. The official status

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of the government offices was an integral part of achieving this goal. We find that Manns’s
conduct was motivated by the official status of the government employees who received the
threat.
2.

Specified Individual Victims

Next, Manns argues that the sentencing enhancement was improperly applied because the
letters were sent to government offices, not specified individuals as required by the Guidelines.
Manns relies on the Guidelines Commentary, which states that the enhancement “applies when
specified individuals are victims of the offense” and “does not apply when the only victim is an
organization, agency, or the government.” USSG § 3A1.2, cmt. 1. Manns asserts that the letters
were addressed to the Summit County Prosecutor’s Office and the Clerk of Courts’ Office, not
specified individuals. The district court rejected this argument at sentencing, determining that
the letters were directed to the county prosecutor and clerk of courts, and the people employed
by them. Moreover, they were received and opened by specific individuals.
A threat does not need to be directed at a named individual to meet the requirements of
the official victim enhancement. See United States v. Mattison, 946 F.2d 896, at *3 (6th Cir.
1991) (unpublished table decision) (finding that the enhancement applied when the defendant
sent a letter to the U.S. District Court for the Middle District of Tennessee threatening to kill
“any United States Judge” who violated his rights, because the letter specified an “identifiable
individual, i.e., that particular judge to whom the case would be assigned”). Cases from other
circuits have also held that the enhancement applies when a threat sufficiently specifies its
intended recipient, even if that individual is not named. See United States v. Stover, 165 F.3d 22,
at *2 (4th Cir. 1998) (unpublished table decision) (finding that the enhancement applied where
the defendant sent a letter to the county prosecutor’s office threatening to have two unnamed

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assistant prosecutors followed and beaten, because the letter sufficiently focused on the two
prosecutors who had prosecuted the defendant); United States v. Polk, 118 F.3d 286, 298 n.10
(5th Cir. 1997) (declining to read “specified individuals” to require government employees to be
named in a threat, and applying the enhancement where the record showed that the defendant
“intended to kill or injure federal employees who work in the IRS Center in Austin”) abrogated
on other grounds by Abramski v. United States, 134 S. Ct. 2259, 2273-74 (2014).
Manns sent the letters to the Summit County Prosecutor’s Office and Clerk of Courts’
Office. The letters themselves referred to “you bitches” and “you cowards,” stated that “you”
gave Penn 15 years to life, and threatened to kill those who “killed” Penn and “made [him] sit
behind [prison] walls.” This presumably refers to the employees who were involved in Penn’s
case, and as the Government notes, are not rants against the government or criminal justice
system in general. The letters referenced harm and violence towards the individuals within the
prosecutor’s and clerk of courts’ offices that were involved in Penn’s case, as well as the rest of
the employees in the vicinity of the so-called anthrax. This is sufficiently specific to implicate
the use of the enhancement.
The case Manns primarily relies on in support of his interpretation, United States v.
Schroeder, 902 F.2d 1469, 1471 (10th Cir. 1990), is inapposite. In Schroeder, the defendant,
while on the phone with an Assistant United States Attorney, “stated that it would be easy to get
a gun and walk into a post office and start shooting.” Id. at 1470. The Tenth Circuit determined
that the enhancement under § 3A1.2 did not apply because the Assistant U.S. Attorney had not
received a threat to his person, and that “to find an official victim for purposes of sentencing . . .
the victim must be one who is the object of a threat under these facts.” Id. at 1471. The object
of the threat was the post office; the U.S. Attorney was merely its recipient. Id. Manns

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analogizes these facts to his case, alleging that the individuals within the county offices that
received the anthrax letters were only recipients. But the employees at the Summit County
Prosecutor’s Office and Clerk of Courts’ Office were also the objects of the threat. The letters
communicated violence toward the employees within the offices with sufficient specificity.
Application of the enhancement was appropriate.
3.

State Government Employees

Finally, Manns argues that § 3A1.2 only applies to employees of the federal government,
not state and local government employees like those working in the Summit County Prosecutor’s
Office or Clerk of Courts’ Office. He acknowledges that a previous version of the Guidelines
explicitly stated that the enhancement applies to victims covered under 18 U.S.C. § 1114 (which
makes specific reference to federal employees) and that version was subsequently changed to
encompass more federal employees. Manns argues that while the Guidelines now cover a
broader range of federal employees, the language of the enhancement is not broad enough to
cover state employees.
Our precedent establishes that § 3A1.2(a) applies equally to state and local government
employees, including county government employees. See United States v. Hudspeth, 208 F.3d
537, 539-40 (6th Cir. 2000) (holding that “federal criminal sentences may be enhanced pursuant
to § 3A1.2(a) if the underlying conduct was motivated by the victim’s status as a state or local
government employee”). The district court properly applied the enhancement in this case.
III.

CONCLUSION

For the reasons explained above, we AFFIRM Manns’s sentence.

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