United States v. Christine Wright-Darrisaw , 781 F.3d 35 ( 2015 )

14‐1809‐cr
United States v. Christine Wright‐Darrisaw
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2014
(Argued: March 3, 2015 Decided: March 24, 2015)
Docket No. 14-1809-cr
________________________________________________________________________
UNITED STATES OF AMERICA,
Appellee,
- v. -
CHRISTINE WRIGHT-DARRISAW,
Defendant-Appellant.
________________________________________________________________________
Before:
CALABRESI, HALL, AND CARNEY, Circuit Judges.
Appeal from a judgment of the United States District Court for the Western District
of New York (Geraci, J.) convicting appellant of violating 18 U.S.C. § 871(a) for threatening
to kill the President of the United States; sentencing the defendant without applying a four-
level decrease in the offense level because the threat was found to involve deliberation;
applying a three-level increase to the offense level because appellant was found to have been
motivated by the victim’s status as a government official; and imposing a sentence of 33
months’ imprisonment. Because the Supreme Court’s decision in United States v. Elonis, 730
F.3d 321 (3d Cir. 2013), cert. granted, 134 S. Ct. 2819 (2014), may bear directly on our analysis
of whether appellant’s communication constituted a “true threat” in violation of 18 U.S.C. §
871(a), we defer consideration of appellant’s challenge to the sufficiency of the evidence
until the Supreme Court issues its decision. So that the district court may reconsider the
sentence imposed before the appellant has served the remaining balance, however, we
remand this case for further consideration of the sentence in light of our holding that the
“deliberation” to be considered under Section 2A6.1(b)(6) of the United States Sentencing
Guidelines is deliberation related to the communication of the threat itself. The District
Court should consider the defendant’s deliberation with respect to her course of conduct
leading up to her communication of the threat only if it is closely tied to the communication
of the threat.
We defer consideration of the sufficiency of the evidence, and we vacate the sentence
and remand for further sentencing proceedings consistent with this opinion.
1
14‐1809‐cr
United States v. Christine Wright‐Darrisaw
REMANDED.
MONICA J. RICHARDS,
Assistant United States Attorney, for William J.
Hochul, Jr., United States Attorney for the
Western District of New York, Buffalo, NY, for
Appellee United States of America.
JEFFREY L. CICCONE,
Assistant Federal Public Defender (Jay S.
Ovsiovitch, Of Counsel, on the brief), Federal
Public Defender’s Office for the Western District
of New York, Rochester, NY, for Defendant-
Appellant Christine Wright-Darrisaw.
HALL, Circuit Judge:
Defendant-Appellant Christine Wright-Darrisaw appeals a judgment of conviction
for threatening to kill the President of the United States in violation of 18 U.S.C. § 871(a).
Wright-Darrisaw also appeals the procedural reasonableness of her sentence, challenging: (1)
the district court’s decision not to apply a four-level decrease in the offense level pursuant to
United States Sentencing Guidelines (U.S.S.G.) § 2A6.1(b)(6) based on the court’s
determination that the threat involved deliberation; (2) a three-level increase in her offense
level pursuant U.S.S.G. § 3A1.2(a) because Wright-Darrisaw was motivated by the victim’s
status as a government official; and (3) the district court’s calculation of the sentence
imposed on her conviction for making a false statement in violation of 18 U.S.C.
§ 1001(a)(2).1
1 Wright-Darrisaw does not challenge her conviction for making a false statement in
violation of 18 U.S.C. § 1001(a)(2).
2
14‐1809‐cr
United States v. Christine Wright‐Darrisaw
As to Wright-Darrisaw’s challenge to her conviction for violating 18 U.S.C.
§ 871(a), we defer consideration of whether Wright-Darrisaw’s threat to kill the President
constituted a “true threat” cognizable under 18 U.S.C. § 871(a) until after the Supreme Court
has issued its decision in United States v. Elonis, 730 F.3d 321 (3d Cir. 2013), cert. granted, 134 S.
Ct. 2819 (2014). Regarding the procedural reasonableness of Wright-Darrisaw’s sentence,
for the reasons that follow we remand to the district court for further consideration of
whether Wright-Darrisaw’s threat involved the sort of deliberation contemplated under
U.S.S.G. § 2A6.1(b)(6).
I. BACKGROUND
Following a jury trial, Wright-Darrisaw was found guilty of threatening the President of
the United States in violation of 18 U.S.C. § 871(a) and of making a false statement in
violation of 18 U.S.C. § 1001(a)(2). The district court imposed a sentence of 33 months’
imprisonment, rejecting Wright-Darrisaw’s request for a four-level decrease in the offense
level under U.S.S.G. § 2A6.1(b)(6) because, in the court’s view, the threat involved
deliberation. For the purposes of this opinion we address the limited issue of whether the
district court committed procedural error when it rejected Wright-Darrisaw’s request for the
four-level decrease.
A. Convictions
On February 24, 2012, Wright-Darrisaw called the White House Comments Line and
after two and a half minutes of communication characterized generally as “foul,”
“incoherent,” and “irrational,” stated “I’m going to f**k and kill Obama.” Christiane
Richardin, a volunteer telephone operator, transferred Wright-Darrisaw to the Secret Service
3
14‐1809‐cr
United States v. Christine Wright‐Darrisaw
and completed an incident report. Richardin reported that Wright-Darrisaw was “angry,”
“excited,” and “loud.” The call was not recorded. The Secret Service subpoenaed phone
records and later determined that Wright-Darrisaw had called the White House Comments
Line several times prior to the call at issue. The Secret Service also determined that Wright-
Darrisaw was a resident of Rochester, New York, and subsequently transferred investigation
of the case to the Secret Service’s Rochester Office.
During the investigation, Wright-Darrisaw admitted to calling the White House
Comments Line to voice her displeasure with child custody laws, but she denied making any
threats. Wright-Darrisaw was arrested on March 9, 2012. Following a three-day trial, a jury
found her guilty of threatening President Obama in violation of 18 U.S.C. § 871(a) and of
making a false statement to the Secret Service in violation of 18 U.S.C. § 1001(a)(2).
B. Sentencing
The Presentence Investigation Report (“PSR”) recommended a combined and adjusted
total offense level of 17. Wright-Darrisaw had a criminal history category of II, which, when
combined with her total offense level, resulted in a Guidelines sentencing range of 27 to 33
months.
With respect to the Guidelines calculation, Wright-Darrisaw urged the district court: (1)
to adopt a four-level decrease in the offense level pursuant to U.S.S.G. § 2A6.1(b)(6) because
the threat did not involve deliberation; (2) to decline to apply a three-level increase in the
offense level pursuant to U.S.S.G. § 3A1.2(a) pertaining to a threat when the victim is a
government official; and (3) to adopt an unspecified decrease in the offense level to account
for Wright-Darrisaw’s history of mental health issues.
4
14‐1809‐cr
United States v. Christine Wright‐Darrisaw
The district court denied Wright-Darrisaw’s request for the § 2A6.1(b)(6) four-level
decrease in the offense level, reasoning in significant part that the very act of calling the
White House Comments Line involved deliberation. The district court explained:
Examining what happened here, this was not spontaneous. The
ultimate verbalization of the threat may have been spontaneous, but
there was some deliberation here. There’s deliberation by contacting
the White House in the first place.
***
Ms. Wright-Darrisaw indicated she did that only after she had a
negative experience in Family Court; was upset regarding the custody
of her children . . . and made a deliberate attempt to contact the
White House to seek aid from the President specifically.
As to the three-level increase in the offense level under § 3A1.2(a), the district court was
not moved by Wright-Darrisaw’s objection and held that her threat was directed toward
President Obama based upon his status as the President of the United States.
When considering Wright-Darrisaw’s mental health issues, the district court found
Wright-Darrisaw’s history of threatening conduct relevant to its denial of the request for a
downward departure:
[Your] conduct over the years has been scary . . . it includes menacing;
possession of a box cutter; possession of a knife; one which was
hidden in a dress on one occasion; a threat to Monroe Community
College to blow up a bomb at that location.
***
Threats against President Bush and the sheriff. Threats against a
neighbor with a knife. A situation where windows of a car were
smashed out. Threats against other officials. Threats to kill neighbors.
A threat to slit the throat of a clerk at Walmart. Threats to shoot a
cousin. And at one point there was activity where you apparently
jumped out of a moving car, and also threatened to kill and shoot
some neighbors.
5
14‐1809‐cr
United States v. Christine Wright‐Darrisaw
Ultimately, after considering the seriousness of the offense, Wright-
Darrisaw’s history and character, and the need for deterrence, the district court
imposed a sentence of 33 months’ imprisonment. The court explained:
To threaten the President of the United States puts a lot of actions in
motion, and it should. Because we’ve seen a history [of] this over our
lifetime where a President being shot or killed has a tremendous
effect on our society.
***
And so it’s a serious thing. The message has to go out there loud and
clear: You can’t threaten the President of the United States and get
away with it.
Wright-Darrisaw is currently serving her sentence.
II. DISCUSSION
We write briefly to clarify the factors to be considered when determining whether a
threat has involved the kind of deliberation that precludes a sentencing court from applying
the four-level decrease provided by U.S.S.G. § 2A6.1(b)(6) to the offense level calculation
applicable to Wright-Darrisaw’s conviction for violation of 18 U.S.C. § 871(a).
In pertinent part, 18 U.S.C. § 871(a) provides that whoever “knowingly and
willfully . . . [makes] any threat to take the life of, to kidnap, or to inflict bodily harm upon
the President of the United States . . . shall be fined under this title or imprisoned not more
than five years, or both.” 18 U.S.C. § 871(a). “Whether words used are a true threat is
generally best left to the triers of fact.” United States v. Amor, 24 F.3d 432, 436 (2d Cir. 1994)
(citing United States v. Carrier, 672 F.2d 300, 306 (2d Cir. 1982)). When imposing a sentence
on a defendant convicted of violating § 871(a), if the court finds “the offense involved a
6
14‐1809‐cr
United States v. Christine Wright‐Darrisaw
single instance evidencing little or no deliberation,” then it should decrease the offense level
by four. U.S.S.G. § 2A6.1(b)(6).
Wright-Darrisaw argues that the district court committed procedural error by
confusing the deliberate call to the White House with the spontaneous threat made at the
end of that call. She also argues that the threat was the product of “a single impulse, or . . . a
single thoughtless response to a particular event.” United States v. Humphreys, 352 F.3d 1175,
1177 (8th Cir. 2003) (quoting United States v. Sanders, 41 F.3d 480, 484 (9th Cir. 1994)). The
government responds that Wright-Darrisaw’s history of threatening behavior, her conscious
decision to call the White House, the fact that the threat came at the end of two minutes and
thirty seconds of communication, and her deceptive conduct after the call, all support a
determination that the threat involved deliberation.
The question before us is whether the district court erred when it determined that
Wright-Darrisaw engaged in sufficient deliberation in connection with making her threat
against the President to preclude eligibility for the four-level decrease in her offense level. In
our view, the explanation provided by the district court suggests that the court may have
been too sweeping in its consideration of what constitutes deliberation cognizable under
U.S.S.G. § 2A6.1(b)(6). We will therefore vacate the sentence imposed and forthwith
remand this case so that the district court may reanalyze in the first instance, consistent with
the holding of this opinion, the quantum of deliberation involved in Wright-Darrisaw’s
communication of her threat.
In considering the applicability of the four-level reduction, we find it instructive to
examine case law from our sister circuits addressing the applicability of § 2A6.1(b)(6)and its
7
14‐1809‐cr
United States v. Christine Wright‐Darrisaw
predecessor. In United States v. Russell, 322 F. App’x 920, 921 (11th Cir. 2009), for example,
the Eleventh Circuit affirmed a sentence denying the four-level reduction where a defendant
was arrested after calling 911 and telling the dispatcher that he was “thinking about killing
the President,” and that he “really mean[t] it.” Subsequent to the arrest, defendant also
reiterated the threat to both the police and the Secret Service. Id. at 922. Facts relevant to
the court’s determination that defendant’s threat involved deliberation sufficient to preclude
application of § 2A6.1(b)(5) 2 included that defendant stated that he was “on his way to kill
the president” and that he “had walked from Alabama [to Georgia] to do so.” Id. at 924.
The fact that defendant had actually walked from Alabama to Georgia, coupled with
defendant’s detailed explanation of his motivations underlying the threat, led the court of
appeals on review for clear error to affirm the district court’s finding of deliberation. Id. at
925.
In United States v. Humphreys, 352 F.3d 1175, 1176 (8th Cir. 2003), the Eighth Circuit
affirmed a sentence where a defendant made several threats that “he or one of his followers
would douse President Bush with a flammable material and throw a match on him,”
determining that the repeated threats were not limited to a “single instance” as required to
support a reduction. In so holding, the Eighth Circuit observed that the
reduction applies when the threat is the product of “a single impulse, or [is] a single
thoughtless response to a particular event.” Id. at 1177 (quoting United States v. Sanders, 41
F.3d 480, 484 (9th Cir. 1994)). Facts relevant to the Eighth Circuit’s conclusion included
that defendant communicated his threat “to different people on different occasions,
2Since the 2009 amendments to the Guidelines, the four-level decrease referenced here is
now found at § 2A6.1(b)(6).
8
14‐1809‐cr
United States v. Christine Wright‐Darrisaw
specifically, in [an internet] chat room, by fax to the White House, and in person to three
individuals at different times.” Id. The fact that the threat was reiterated on several
occasions and was not simply the product of a “single impulse,” supported a finding that the
defendant was not eligible for a four-level reduction under § 2A6.1(b)(5). Id.
In United States v. Horton, 98 F.3d 313, 320 (7th Cir. 1996), the Seventh Circuit vacated
a sentence and remanded for further analysis of whether there had been deliberation when a
defendant had made a bomb threat against a federal building one day after the Oklahoma
City bombing. The circuit court held that the district court inadequately explained its
decision to infer deliberation with respect to the threat based on the timing of the threat,
defendant’s presence at the building, and the heightened security that had been put in place
because of the Oklahoma City bombing, and without explaining its choice to “dismiss
without comment” certain other evidence regarding the defendant’s pre-threat conduct or
focusing on the nature of his offense conduct. Id. at 320.
Even in the context of a written and mailed threat—circumstances from which one
might infer a certain level of deliberation—the Ninth Circuit has commented that, “the mere
act of mailing a letter does not, in and of itself, necessarily require deliberation,” Sanders, 41
F.3d at 485 (finding deliberation nevertheless where “the circumstances of the letters
showed some planning and a clear intent to harass the target groups.”).
Examining the language of § 2A6.1(b)(6), and the dispositions in these cases, we note
two factors that courts have considered in deciding whether to apply the four-level
reduction: (1) whether, and under what circumstances, the threat itself has been repeated and
(2) whether there is evidence of planning or some effort to carry out the threat. It is
9
14‐1809‐cr
United States v. Christine Wright‐Darrisaw
undisputed that the particular threat here was not repeated. The issue is therefore whether
there is sufficient evidence of planning or some effort to carry out the threat.
We agree with the Seventh Circuit that the presence of coincidental factors (such as
heightened security unrelated in any way to the threat) are not properly considered when
determining whether there has been deliberation. Further, we find persuasive the Eighth
Circuit’s observation that the reduction offered by § 2A6.1(b)(6) should be available to a
defendant whose threat is the product of “a single impulse, or [is] a single thoughtless
response to a particular event.” Humphreys, 352 F.3d at 1177. Thus, we hold here that the
“deliberation” to be considered under § 2A6.1(b)(6) of the Sentencing Guidelines is
deliberation related to the communication of the threat itself. Only if a defendant’s course
of conduct leading up to and following the time the threat was made is closely tied to the
communication of the threat, or if the defendant makes any effort to carry out the threat,
may the conduct then provide a basis for inferring deliberation sufficient to reject the four-
level reduction.
In this case, while Wright-Darrisaw’s decision to call the White House Comments
Line to complain about a family law matter undoubtedly involved deliberation, the threat
itself, which was delivered after two and a half minutes of communication categorized by the
operator as “incoherent,” may not have involved deliberation of the sort to which §
2A6.1(b)(6) refers. While we agree with the district court that “there’s deliberation by
contacting the White House” and “seek[ing] aid from the President specifically,” these facts
alone do not necessarily demonstrate that Wright-Darrisaw’s threat involved the sort of
10
14‐1809‐cr
United States v. Christine Wright‐Darrisaw
deliberation that must be present in order for the district court to decline to decrease the
offense level by four levels under § 2A6.1(b)(6) of the Guidelines.
Accordingly, because it appears that the district court may have conflated the
deliberation involved in making the phone call to the White House with the deliberation
involved in communicating the specific threat against the President, we vacate the sentence
and remand for further consideration of whether Wright-Darrisaw is entitled to the four-
level decrease in her offense level. If the district court concludes following such further
proceedings as it deems necessary that Wright-Darrisaw’s threat was made with little or no
deliberation, then the court should resentence her accordingly. If, on the other hand, the
court concludes that there was deliberation of the sort contemplated by § 2A6.1(b)(6), then
the present sentence should be re-imposed.3 If either party intends to appeal the district
court’s sentencing decision on remand, it may inform this Court of its position and provide
supplemental briefing, which this panel would expect to consider at the time we review the
challenge to the sufficiency of the evidence.
We have considered Wright-Darrisaw’s remaining challenges to her sentence and find
them to be without merit.
III. CONCLUSION
For the foregoing reasons, we VACATE the sentence and REMAND to the district
court for the limited purpose of considering the U.S.S.G. § 2A6.1(b)(6) issue consistent with
this opinion. We defer consideration of Wright-Darrisaw’s challenge to the sufficiency of
3 In either case, we are confident that the district court is aware that a sentence to a term of
incarceration may not be based on Wright-Darrisaw’s rehabilitative needs. See 18 U.S.C. §
3582(a); Tapia v. United States, 131 S. Ct. 2382 (2011).
11
14‐1809‐cr
United States v. Christine Wright‐Darrisaw
the evidence supporting her conviction for violation of 18 U.S.C. § 871(a) until such time as
the Supreme Court has issued its decision in Elonis.
12