United States v. Rufus J. Sheppard , 243 F. App'x 580 ( 2007 )


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  •                                                               [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT                      FILED
    ________________________          U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    September 26, 2007
    No. 06-16643                   THOMAS K. KAHN
    Non-Argument Calendar                  CLERK
    ________________________
    D. C. Docket No. 06-00021-CR-5-RS
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    RUFUS J. SHEPPARD,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Florida
    _________________________
    (September 26, 2007)
    Before BLACK, MARCUS and HULL, Circuit Judges.
    PER CURIAM:
    Rufus J. Sheppard appeals his sentences for one count of threatening to kill
    the President and one count of threatening to kill an immediate family member of
    the President, in violation of 
    18 U.S.C. §§ 871
    (a) and 879(a)(2). The government
    concedes that a sentencing error in this case occurred and after our own review, we
    agree and vacate and remand for resentencing.
    I. BACKGROUND
    While Sheppard was a federal prisoner, prison officials found an envelope
    addressed to President George W. Bush that contained a letter that threatened
    President Bush and his family. Sheppard was identified as the sender on the return
    address. In addition, forensic analysis revealed that it was his handwriting in the
    letter and that his fingerprints were on the letter and the envelope. Sheppard was
    indicted and, after a jury trial, found guilty of both counts.
    The probation officer prepared a Presentence Investigation Report (“PSI”)
    recommending that Sheppard receive a 4-level reduction in his base offense level,
    pursuant to U.S.S.G. § 2A6.1(b)(5). Under § 2A6.1(b)(5), the defendant’s offense
    level is decreased by 4 levels if the offense “involved a single instance evidencing
    little or no deliberation.” However, a defendant is not entitled to this reduction if,
    inter alia, he has received a 2-level enhancement under § 2A6.1(b)(2) because the
    offense involved “more than two threats.”1
    1
    Section 2A6.1 of the Sentencing Guidelines states in relevant part:
    (a)       Base Offense Level:
    2
    The government objected to the 4-level reduction and provided the probation
    officer with four additional threatening letters Sheppard wrote to President Bush,
    Vice President Richard Cheney and the presiding judge in this case. Sheppard
    wrote these four letters after he was indicted for the instant offenses and was
    awaiting trial. The government argued that these four letters should be counted as
    relevant conduct. According to the government, once the four letters were
    considered, Sheppard’s offense level must be increased by 2 levels, pursuant to
    § 2A6.1(b)(2), which would then disqualify him from receiving the 4-level
    reduction under § 2A6.1(b)(5) .
    In response to the government’s objections, the probation officer revised the
    PSI. Citing the four additional threatening letters provided by the government, the
    amended PSI included the 2-level increase pursuant to § 2A6.1(b)(2) and deleted
    (1)    12; or
    (2)    6, if the defendant is convicted of an offense under 
    47 U.S.C. § 223
    (a)(1)(C),(D), or (E) that did not involve a threat to injure a person or
    property.
    (b)     Specific Offense Characteristics
    ....
    (2)    If the offense involved more than two threats, increase by 2 levels.
    ....
    (5)   If (A) subsection (a)(2) and subdivisions (1), (2), (3), and (4) do not apply,
    and (B) the offense involved a single instance evidencing little or no
    deliberation, decrease by 4 levels.
    U.S.S.G. § 2A6.1(a)-(b).
    3
    the 4-level reduction pursuant to § 2A6.1(b)(5).
    At sentencing, over Sheppard’s objection, the district court considered the
    four additional threatening letters as relevant conduct and adopted the guidelines
    calculations in the amended PSI. Thus, the district court imposed the 2-level
    increase pursuant to § 2A6.1(b)(2) and declined to impose the 4-level reduction
    pursuant to § 2A6.1(b)(5). With a total offense level of 16 and a criminal history
    category of V, Sheppard’s advisory guidelines range was 41 to 51 months. The
    district court imposed two concurrent 46-month sentences. Sheppard filed this
    appeal.
    II. DISCUSSION
    On appeal, Sheppard argues, and the government concedes, that the district
    court erred in relying on the four additional threatening letters to support the
    § 2A6.1(b)(2) enhancement.
    The Sentencing Guidelines provide for a 2-level enhancement if the
    threatening communications “involved more than two threats . . . .” U.S.S.G.
    § 2A6.1(b)(2). The commentary to § 2A6.1(b) indicates that the sentencing court
    should “consider both conduct that occurred prior to the offense and conduct that
    occurred during the offense . . . .” Id. cmt. n.1 (emphasis supplied). However, this
    Court has concluded that conduct that did not occur “before or during” the offense,
    4
    but rather “after” the offense has been completed, is not considered in determining
    whether to apply a § 2A6.1(b) enhancement. United States v. Scott, 
    441 F.3d 1322
    , 1329 (11th Cir. 2006).2
    Here, the district court imposed the 2-level enhancement pursuant to
    § 2A6.1(2)(b) based on the four threatening letters Sheppard wrote after he had
    been indicted for the instant offenses. Under Scott, this was error. Therefore, we
    must vacate Sheppard’s sentence and remand to the district court for resentencing.
    On remand, the district court shall consider whether, absent consideration of the
    four additional letters, the Sentencing Guidelines call for a 2-level enhancement
    pursuant to § 2A6.1(b)(2). If the district court answers this question in the
    negative, the district court shall also consider whether Sheppard should receive a 4-
    level reduction pursuant to § 2A6.1(b)(5).3
    VACATED AND REMANDED.
    2
    In Scott, the defendant was interviewed by the FBI after he mailed threatening letters to a
    federal judge. 
    441 F.3d at 1324
    . During the interview, the defendant made statements suggesting
    that he intended to carry out his threats once he was released from prison. 
    Id.
     Based on these
    statements, the district court imposed a 6-level enhancement, pursuant to § 2A6.1(b)(1), because
    “the offense involved conduct evidencing an intent to carry out” the threats. Id. at 1324-25 (internal
    quotation marks omitted). This Court reversed, explaining that the commentary to § 2A6.1(b)
    required the conduct to have been “committed before or during the offense . . .” and Scott’s
    statements to the FBI had occurred while he was in custody and “after the crime had been
    completed.” Id. at 1329.
    3
    Although we remand for recalculation of Sheppard’s advisory guidelines range, we express
    no view as to the appropriate sentence after consideration of the correctly calculated advisory
    guidelines range and the factors in 
    18 U.S.C. § 3553
    (a).
    5
    

Document Info

Docket Number: 06-16643

Citation Numbers: 243 F. App'x 580

Judges: Black, Marcus, Hull

Filed Date: 9/26/2007

Precedential Status: Non-Precedential

Modified Date: 11/5/2024