United States v. Reichard ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
10-27-2005
USA v. Reichard
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4763
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT
OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-4763
UNITED STATES OF AMERICA
v.
ROBERT RAY REICHARD,
Appellant
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Crim. Action No. 03-cr-00042)
District Judge: Hon. Sean J. McLaughlin
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 19, 2005
BEFORE: SMITH, STAPLETON and NYGAARD, Circuit Judges
(Opinion Filed: October 27, 2005)
OPINION OF THE COURT
STAPLETON, Circuit Judge:
In the spring of 2003, defendant-appellant Robert Ray Reichard (“Reichard”)
began a two-week romantic affair with Teresa Lovin (“Lovin”). After the affair, Lovin
resumed a relationship with Raymond Kotomski (“Kotomski”). Reichard began to send
threatening letters anonymously to Lovin and Kotomski. In October 2002, he entered
Kotomski’s house and took several items, including personal papers belonging to Lovin.
He also spray painted the words “Get out Bitch” on the side of Lovin’s car.
In November 2003, Reichard mailed a suspicious package to Kotomski. Kotomski
did not open the package and took it to the state police barracks. The Erie, Pennsylvania,
bomb squad x-rayed the package, concluded it contained a dangerous device, and
disarmed it using a water cannon.
Kotomski informed the police that he and Lovin had been receiving threatening
anonymous communications. When confronted, Reichard confessed to mailing the
package to Kotomski. He explained to the police how he made the device in the package
and how he left the package in a mailbox in Hubbard, Pennsylvania, addressed to
Kotomski. The package consisted of a mousetrap, a series of matches, a match strike
plate, explosive powder, and a string that protruded from the package. The contents were
arranged such that if the string were disrupted by the opening of the package, it would
release the mousetrap, causing the matches to strike the plate, and thereby igniting the
powder.
2
Reichard pled guilty to one count of manufacturing a “firearm” in violation of 26
U.S.C. § 5861. Pursuant to the plea agreement, the parties stipulated to application of the
United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”). The parties agreed
that “[t]he facts relevant to sentencing shall be determined initially by the United States
Probation Office and finally by the United States District Court.” App. at 72. The parties
also agreed as follows with respect to application of the Guidelines:
2. The parties stipulate that pursuant to 18 U.S.S.G. § 2K2.1(a)(5), the base
offense level for the defendant's conduct is 18. Pursuant to U.S.S.G. §
2K2.1(b)(3), the parties stipulate that the offense level is increased by 2
levels to 20 because the offense involved a destructive device. The parties
further stipulate that pursuant to U.S.S.G. § 2K2.1(b)(5), the offense level is
further increased 4 levels to level 24 because the defendant used and
possessed the destructive device in connection with another felony offense.
...
4. [sic] The parties retain their right to advocate their position with respect
to any upward or downward departure that may be appropriate at the time of
sentencing.
App. at 74-75.
The defendant's base offense level is determined by reference to § 2K2.1(a)(5) of
the Guidelines. That section, entitled “Unlawful Receipt, Possession, or Transportation
of Firearms or Ammunition; Prohibited Transactions Involving Firearms or
Ammunition,” provides an offense level of 18 if the offense “involved a firearm
described in 26 U.S.C. § 5845(a).” The PSR and plea agreement specified that a two-
level enhancement applied because the particular “firearm” manufactured was a
“destructive device.” U.S.S.G. § 2K2.1(b)(3). In addition, a four-level enhancement
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applied because the defendant possessed a “firearm” in connection with another felony
offense; namely, the defendant’s harassment, stalking, and sending of threatening
communications to Kotomski and Lovin. U.S.S.G. § 2K2.1(b)(5).
The PSR and plea agreement also provided for Reichard’s offense level to be
reduced by two levels due to acceptance of responsibility and another level due to
Reichard’s timely notification of the authorities of his intention to enter a plea of guilty.
U.S.S.G. § 3E1.1(a) and (b). Therefore, Reichard’s adjusted offense level was 21.
Because Reichard’s criminal history category was I, this resulted in a Guidelines range of
37 to 46 months in prison. These calculations were not in dispute at sentencing and are
not in dispute on appeal.
The government moved for an upward departure. The government argued that
Reichard’s case was outside the heartland of cases contemplated by the Guidelines in §
2K2.1 for three reasons: 1) Reichard actually used the device; 2) Reichard intended to use
the device to carry out his threat to the victim; 3) by placement in the mail, Reichard's
device posed a significant risk of serious bodily injury to others. Reichard responded that
the Guidelines already accounted for these facts.
The District Court accepted the government’s argument and granted its motion. In
the course of concluding that Reichard’s case was outside the heartland, it noted the
following:
• “[T]he device itself was fully capable of inflicting serious bodily injury or
harm.” App. at 310.
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• “[T]he actual mailing of this device followed a long period of harassment
and st[al]king of the victim.” Id. at 310-11.
• “[T]he defendant lost all control of the destructive device once he placed it
in the mail. This is not a situation, in my view, like a firearm where the
perpetrator can decide at any instant whether or not he will pull the trigger.
Here, in short, I find that the evidence reveals that the defendant
intentionally played Russian roulette with the health and safety of any
member of the public that came in contact with the package. And the
evidence here shows that there were many.” Id. at 311.
• “[T]he destructive device manufactured by the defendant was more than
capable of having been triggered inadvertently at any number of points on
its long journey from having been dropped off in the mailbox to its ultimate
designation.” Id.
• “[T]he statistical evidence put forward at this hearing demonstrates
conclusively that the placing of incendiary devices, such as the device that
was placed in the mail in this case, in the entire United States is an
extremely rare occurrence and, in fact, in some years there is no record of it
having occurred at all.” Id. at 311-12.
The District Court looked to analogous Guideline provisions to determine the
appropriate extent of departure and concluded that an increase of four offense levels was
appropriate. After the four-level increase, Reichard was left with a total offense level of
25, which along with a criminal history category of I, resulted in a guideline range of 57
to 71 months. The District Court sentenced Reichard to 60 months in prison.
In this timely appeal, Reichard challenges only the District Court’s decision to
depart upward and its determination of the extent of the departure.
The parties agree that we review the District Court’s decision with respect to the
extent of the departure for an abuse of discretion. They differ on whether we must review
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the decision to depart de novo or for an abuse of discretion. We need not resolve this
controversy, however, because we conclude that the departure decision must be sustained
under either standard.
Reichard insists that the District Court erred when it departed upwards because the
factors supporting the departure were already accounted for in the Guidelines calculation.
We are unpersuaded. As this Court explained in United States v. Iannone, 184 F.3d 214,
226 (3d Cir. 1999):
The Commission conceives of each offense guideline as “carving out a
‘heartland,’ a set of typical cases embodying the conduct that each guideline
describes.” In the unusual case in which a defendant's conduct falls outside
the typical ‘heartland,’ the court may consider a departure from the
Guidelines sentence. Section 5K2.0 provides that a court may impose a
sentence outside the applicable guideline range “if the court finds ‘that there
exists an aggravating or mitigating circumstance of a kind, or to a degree,
not adequately taken into consideration by the Sentencing Commission in
formulating the guidelines that should result in a sentence different from
that described.’”
Id. at 226 (citations omitted).
The Supreme Court in Koon v. United States, 518 U.S. 81 (1996), specified a
methodology courts should follow in evaluating whether a departure is appropriate. This
court explained that methodology in Iannone:
First, identify the factor or factors that potentially take the case outside the
Guidelines’ “heartland” and make it special or unusual. Second, determine
whether the Guidelines forbid departures based on the factor, encourage
departures based on the factor, or do not mention the factor at all. Third,
apply the appropriate rule: (1) if the factor is forbidden, the court cannot use
it as a basis for departure; (2) if the factor is encouraged, the court is
authorized to depart if the applicable guideline does not already take it into
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account; (3) if the factor is discouraged, or encouraged but already taken
into account by the applicable guideline, the court should depart only if the
factor is present to an exceptional degree, or in some other way makes the
case different from the ordinary case in which the factor is present; or (4) if
the factor is unmentioned, “the court must, after considering the structure
and theory of both relevant individual guidelines and the Guidelines taken
as a whole, decide whether [the factor] is sufficient to take the case out of
the Guideline’s heartland.”
184 F.3d at 226 (citations and footnote omitted).
Reichard pled guilty to making a “firearm” in violation of 26 U.S.C. § 5861(a)
through (l). The U.S.S.G. section applicable to that offense is § 2K2.1. That section
applies only to criminal activities involving the making, importing, possessing, selling,
transferring and theft, etc., of firearms under specified circumstances. U.S.S.G. App. A.
Reichard’s base offense level of 24 thus takes into account the fact that Reichard made a
firearm, the fact that that firearm was a destructive device (i.e., a bomb), and the fact that
he made and possessed that device in connection with a felony; namely, the harassment,
threatening and stalking of Lovin and Kotomski. It does not take into account what
Reichard did once he had manufactured the bomb; namely, place the bomb in the mail in
a manner that (a) was designed to place it directly into the hands of the intended victim,
and (b) would, during its mail transit, create a high risk of serious personal injury to many
innocent people.
While Reichard is correct in stressing that a “destructive device” by definition is
capable of causing bodily injury, there is a material difference between creating such a
device and, after creating it, actually employing it in a manner that will create a
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substantial risk of serious bodily injury not only to the intended victim but to countless
others as well.
The Guidelines encourage departure in situations of this kind. First, § 5K2.14
provides:
If national security, public health, or safety was significantly endangered,
the court may depart upward to reflect the nature and circumstances of the
offense.
U.S.S.G. § 5K2.14. In addition, Application Note 5 to section 1B1.3 provides:
In a case in which creation of risk is not adequately taken into account by
the applicable offense guideline, an upward departure may be warranted.
U.S.S.G. § 1B1.3, Application Note 5. Finally, and most importantly, the commentary to
the Guideline under which Reichard was sentenced, §2K2.1, provides:
Offenses involving [destructive] devices cover a wide range of offense
conduct and involve different degrees of risk to the public welfare
depending on the type of destructive device involved and the location or
manner in which that destructive device was possessed or transported. For
example, a pipe bomb in a populated train station creates a substantially
greater risk to the public welfare, and a substantially greater risk of death or
serious bodily injury, than an incendiary device in an isolated area. In a
case in which the cumulative result of the increased base offense level and
the enhancement under subsection (b)(3) does not adequately capture the
seriousness of the offense because of the type of destructive device
involved, the risk to the public welfare, or the risk of death or serious bodily
injury that the destructive device created, an upward departure may be
warranted.
U.S.S.G. § 2K2.1, Application Note 8 (emphasis added).1
1
Reichard also argues that this basis for departure is unsupported by the record. He
relies on a witness for the government who testified that the string on the outside of the
package would have to be cut in order for the device to detonate. Reichard emphasizes
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In short, the fact that the device was dangerous, in and of itself, does not justify
departure because the dangerousness of the device was already accounted for by the two-
level enhancement for use of a “destructive device.” But the factor nonetheless informs
the analysis of the creation of a risk of harm for the general public. The creation of a
substantial risk of serious bodily injury to the general public was not adequately
accounted for in the Guidelines and justifies an upwards departure.
We further conclude that the District Court did not abuse its discretion when it
departed upwards four levels. As district courts are generally required to do, the District
that the witness failed to state that the cutting of the string could happen easily. But
examination of the record in context reveals that the witness testified that the string could
have been cut in transit:
THE COURT: With your understanding as to how this device was put
together, do you have an opinion as to whether there was any risk of
ignition or detonation while it was in transit between its original mailing
point and where it was intended to go?
THE WITNESS: Yes, that would have been possible.
THE COURT: What would be the risk and what would be the mechanism
from that instance that, in your opinion, would have been able to trigger the
device?
THE WITNESS: Really would have to either be the string itself be cut
somewhere in transport or where the string attaches to the bale, where it
was holding it back the bale. Either way the mousetrap had to spring
forward.
App. at 200-01. It was not clear error for the District Court to infer from this and other
testimony that there was a substantial risk of harm to the general public that came into the
vicinity of the package as it made its way through the postal system.
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Court analogized to existing Guideline provisions in determining the appropriate extent of
its departure. See Iannone, 184 F.3d at 229. The Court looked to three provisions it
viewed as analogous. First, the Court observed that under § 3C1.2, an adjustment
applicable to a wide variety of offenses, if the defendant “recklessly created a substantial
risk of death or serious bodily injury to another person in the course of fleeing from a law
enforcement officer,” the Court should increase the offense level by two levels. U.S.S.G.
§ 3C1.2. Second, the Court observed that the Guidelines provision governing stalking
and domestic violence offenses calls for a four-level increase in offense level if the
offense involved both “possession, or threatened use, of a dangerous weapon” and “a
pattern of activity involving stalking, threatening, harassing, or assaulting” the victim.
U.S.S.G. § 2A6.2. Finally, the Court considered that the Guidelines provision governing
robbery requires a six-level increase in offense level if a firearm is used, but not
discharged, in the course of an offense. U.S.S.G. § 2B3.1(b)(2). The three analogous
provisions call for enhancements of two to six offense levels; the Court chose the middle
of that range and enhanced Reichard’s offense level by four.
While §§ 2A6.2 and 2B3.1(b)(2) are not a close fit, they are at least analogous to
the extent they are designed to punish defendants whose conduct creates a greater risk of
harm to others. The robbery provision implicates that concern because it raises the
offense level for mere use of a firearm, even if the firearm is not discharged. The stalking
enhancement is similarly relevant in that it addresses the concomitant increase in risk to
10
others that stems from the mere prospect of use of a weapon in concert with stalking or
harassment. The two-level enhancement under § 3C1.2 for creation of a risk to others in
the course of fleeing a law enforcement officer is more clearly analogous because it
squarely addresses Reichard’s creation of a risk to others.2
In addition to the Guideline provisions cited by the District Court, we may look to
other provisions to justify the extent of the departure. In Iannone, this Court supplied its
own analogous Guidelines provision to justify the extent of the District Court’s departure
because the District Court had failed to articulate analogous Guidelines provisions at
sentencing. 184 F.3d at 229.
The government points to § 2D1.1(b)(6)(B), which calls for a three-level increase
in offense level when a methamphetamine defendant’s offense “created a substantial risk
of harm to . . . human life.” In addition, the government cites to § 2K1.4, which provides
a base offense level of 24 for arson offenses in which the defendant knowingly “created a
substantial risk of death or seriously bodily injury to any person other than a participant in
the offense,” but an offense level of 20 for arson offenses in which the defendant
unknowingly “created a substantial risk of death or serious bodily injury to any person
other than a participant in the offense.” U.S.S.G. §§ 2K1.4(a)(1) and (2). We agree with
the government that these are helpful analogies.
2
Reichard argues that the provision is not analogous because “there was no flight–not
from a law enforcement officer or any one else.” Br. Appellant at 36. But this misses the
point. The District Court did not apply this enhancement directly to Reichard, but
invoked it by analogy because it concerns the creation of a risk to others.
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Thus, the analogous Guidelines provisions show increases in offense level between
two and six when the defendant’s conduct increases the risk of harm to others. The
District Court increased Reichard’s offense level by four levels. This was within its
discretion.
The judgment of the District Court will be affirmed.
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