United States v. Spring ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.  No. 03-4902
KENNETH ROBERT SPRING,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Graham C. Mullen, Chief District Judge.
(CR-00-88-MU; CR-02-56-MU)
Argued: June 4, 2004
Decided: September 7, 2004
Before GREGORY and DUNCAN, Circuit Judges, and
Robert R. BEEZER, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.
Affirmed in part, reversed in part, and remanded with instructions by
unpublished per curiam opinion.
COUNSEL
ARGUED: Thomas Richard Ascik, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North
Carolina, for Appellant. Richard Deke Falls, BARNETT & FALLS,
Charlotte, North Carolina, for Appellee. ON BRIEF: Robert J. Con-
2 UNITED STATES v. SPRING
rad, Jr., United States Attorney, Asheville, North Carolina, for Appel-
lant.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
The United States (the "Government") appeals from the district
court’s order granting a downward departure from the federal Sen-
tencing Guidelines in favor of the defendant, Kenneth Robert Spring.
A jury convicted Spring on multiple counts of mailing threatening
communications and threatening to use a weapon of mass destruction
in violation of 18 U.S.C. §§ 876 and 2332a. Although the Guidelines
produced a sentencing range of 360 months to life imprisonment, the
district court concluded that the circumstances of Spring’s case fell
outside the "heartland" of the Sentencing Guidelines, and sentenced
Spring to a term of 78 months’ imprisonment. We conclude that the
district court erred in granting a departure with respect to all but one
of the factors it identified. Accordingly, we reverse the district court’s
downward departure and remand for resentencing in accordance with
this opinion.
I.
A. Prior Violent Crime Felony Convictions
On November 7, 1997, Spring pled guilty to a single count of
"mailing threatening communications" in violation of 18 U.S.C. § 876.11
In pertinent part, 18 U.S.C. § 876 provides that whoever mails
any communication . . . addressed to any other person and con-
taining any threat . . . to injure the person of the addressee or of
UNITED STATES v. SPRING 3
The conviction resulted from a May 1996 letter that Spring mailed to
the Sheriff’s office in Jackson County, North Carolina, in which he
threatened to murder various deputy sheriffs. Spring was sentenced to
a term of ten months’ imprisonment and three years’ supervised
release. Spring completed his sentence and was released on Septem-
ber 3, 1999. However, he was arrested only a month later, after proba-
tion officer Jeffrey Naber found him in possession of various
weapons, in violation of his supervised release. On February 14,
1999, United States District Judge Lacy Thornburg revoked Spring’s
supervised release and sentenced him to a term of nine months’
imprisonment.
On May 22, 2000, prison officials in Butner, North Carolina inter-
cepted an outgoing letter from Spring addressed to Jeffrey Naber. The
letter contained threats to murder various individuals, including
Naber, Judge Thornburg, and their respective families. On July 11,
2000, one day before the completion of his sentence on the supervised
release violation, Spring was charged in a criminal complaint,
arrested, and continued in federal custody pending an indictment on
charges arising out of this letter. On September 19, 2000, Spring was
indicted on three violations of 18 U.S.C. § 115, which prohibits
threats made with the intent to interfere with or retaliate against a fed-
eral official.2 Spring pleaded not guilty to these charges, but a jury
convicted him on all three counts on January 26, 2001. Spring was
sentenced to a term of 78 months’ imprisonment.
another, shall be fined under this title or imprisoned not more
than five years, or both. If such a communication is addressed to
a United States judge, Federal law enforcement officer, or an
official who is covered by section 1114, the individual shall be
fined under this title, imprisoned not more than 10 years, or both.
18 U.S.C. § 876(c).
2
Title 18 U.S.C. § 115 prohibits threats to assault a federal official or
the official’s immediate family "with intent to impede, intimidate, or
interfere with such official . . . while engaged in the performance of offi-
cial duties, or with intent to retaliate against such official . . . on account
of the performance of official duties." 18 U.S.C. § 115(a)(1)(B).
4 UNITED STATES v. SPRING
B. The Instant Offenses
While Spring was incarcerated and awaiting trial on the September
2000 indictment, he mailed several more letters threatening to murder
Jeffrey Naber and Judge Thornburg. One such letter was received in
the chambers of Judge Thornburg on August 14, 2000. A letter con-
taining similar threats was received in the Asheville, North Carolina
probation office on September 9, 2000, and again on November 11,
2000. On December 5, 2000, a federal grand jury indicted Spring on
charges related to these three letters. A superseding indictment, how-
ever, was issued on April 2, 2001, to include charges related to a
fourth threatening letter Spring mailed to the probation office on Feb-
ruary 5, 2001. The April 2001 indictment included a total of twenty-
six counts, including thirteen counts of mailing threatening communi-
cations in violation of 18 U.S.C. § 876, and thirteen counts of making
threats in retaliation against federal officials in violation of 18 U.S.C.
§ 115.
In May of 2002, before Spring could be tried on the April 2001
indictment, he mailed two more letters to Judge Thornburg at the
judge’s chambers in Asheville, North Carolina. Each letter contained
a death threat, as well as a white powdery substance, which the letter
claimed was anthrax.3 On June 7, 2002, a federal grand jury returned
an eight-count indictment against Spring on charges arising out of
these letters. The indictment charged Spring with four counts of
threatening to use a weapon of mass destruction in violation of 18
U.S.C. § 2332a. Two of these counts charged Spring with making
threats against Judge Thornburg, while the other two charged him
with making threats against the federal courthouse in Asheville. Of
the four remaining counts, two charged Spring with violating the
threatening communications statute, 18 U.S.C. § 876, while the other
two counts charged him with violating the retaliation statute, 18
U.S.C. § 115.
The June 2002 indictment was joined with the April 2001 indict-
ment for a two-day trial beginning on September 10, 2002. The jury
convicted Spring on the two counts of threatening to use a weapon of
3
The North Carolina State Bureau of Investigation later determined
that the substance found in the letter was acetaminophen.
UNITED STATES v. SPRING 5
mass destruction against the federal courthouse, as well as the fifteen
counts of mailing threatening communications. Spring was acquitted
of all fifteen of the retaliation counts, and the Government voluntarily
dismissed the counts for threatening to use a weapon of mass destruc-
tion against Judge Thornburg.
C. Sentencing
The computation of Spring’s sentence was not controlled by the
applicable guideline for threatening communications, U.S.S.G.
§ 2A6.1, or the guideline for threatening the use of a weapon of mass
destruction, U.S.S.G. § 2M6.l. Rather, the controlling factor in
Spring’s sentence was the district court’s conclusion that he was a
"career offender" under U.S.S.G. § 4B1.1. In pertinent part, § 4B1.1
provides that:
A defendant is a career offender if (1) the defendant was at
least eighteen years old at the time the defendant committed
the instant offense of conviction; (2) the instant offense of
conviction is a felony that is either a crime of violence or
a controlled substance offense; and (3) the defendant has at
least two prior felony convictions of either a crime of vio-
lence or a controlled substance offense.
U.S.S.G. § 4B1.1(a) (2002). Because threatening a violent crime is
itself a violent crime under the career offender guideline,4 the presen-
tence investigation report classified Spring as a career offender on
account of his two prior violent crime convictions. The present case
constituted the necessary third conviction. As a career offender under
§ 4B1.1, the presentence report assigned Spring a total offense level
of 37, and a Criminal History Category of VI, which resulted in a sen-
tencing range of 360 months to life imprisonment.
4
Guideline § 4B1.2 provides that "[t]he term ‘crime of violence’ means
any offense under federal or state law, punishable by imprisonment for
a term exceeding one year, that . . . has as an element the use, attempted
use, or threatened use of physical force against the person of another."
U.S.S.G. § 4B1.2(a)(1) (2002) (emphasis added).
6 UNITED STATES v. SPRING
Spring subsequently requested a downward departure on the
grounds that: (1) he committed the offenses while suffering from a
diminished capacity; (2) his criminal history had been overstated; (3)
the seriousness of his offense level had been overstated; (4) he had
an extraordinary motive for committing the offenses; (5) he was
unusually susceptible to prison abuse; and (6) the combination of all
five factors was an independent basis for a downward departure. The
district court addressed the six bases for Spring’s departure motion
and accepted each one. In fixing the extent of the departure, the court
reduced Spring’s total offense level from 37 to 26, and adjusted his
Criminal History Category from VI to III. This produced a Guidelines
range of 78 to 97 months’ imprisonment. After hearing argument on
this range, the court imposed a sentence of 78 months’ imprisonment.
II.
The fact that Congress has altered the traditional standard for
reviewing departure decisions is significant in this case. We continue
to review findings of fact for clear error and the magnitude of a sen-
tencing departure for abuse of discretion. 18 U.S.C. § 3742(e). How-
ever, Congress amended 18 U.S.C. § 3742(e) by enacting the
Prosecutorial Remedies and Other Tools to end the Exploitation of
Children Today Act of 2003, Pub. L. No. 108-21, 117 Stat. 650,
which requires that we review de novo whether a sentencing depar-
ture was based on a factor that does not advance the objectives of sen-
tencing or is not justified by the facts of the case. United States v.
May, 359 F.3d 683, 687-88 (4th Cir. 2004) (stating that "when deter-
mining whether the sentence departs from the applicable guideline
range based on a factor that—is not justified by the facts of the case;
‘the court of appeals shall review de novo the district court’s applica-
tion of the guidelines to the facts.’") (quoting 18 U.S.C. § 3742(e)).
As a result, certain departure decisions that were once entrusted to the
sound discretion of trial judges are no longer accorded deference.
III.
We observed in United States v. Rybicki, 96 F.3d 754 (4th Cir.
1996), that:
Under the Sentencing Guidelines, a district court must ordi-
narily impose sentences within the range specified by the
UNITED STATES v. SPRING 7
applicable guideline. Each guideline attempts to anticipate a
broad range of typical cases — a "heartland" — that is rep-
resentative of the circumstances and consequences of ordi-
nary crimes of the type to which the guideline applies. Koon
[v. United States, 518 U.S. 81, 92 (1996)]. Only if the dis-
trict court determines that the circumstances and conse-
quences of a case are "atypical" or "unusual" and, therefore,
that the case does not fall within the guideline’s heartland
may it exercise discretion to depart from the specified sen-
tencing range. To determine whether a circumstance is
"atypical" or "unusual," and, therefore, capable of taking a
case out of the applicable guideline’s heartland, district
courts should consider not only the Guidelines themselves,
but also the Sentencing Commission’s policy statements and
official commentary.
Id. at 757 (citations omitted). Rybicki prescribed the following analy-
sis for district courts when considering a sentencing departure:
1. The district court must first determine the circumstances
and consequences of the offense of conviction. . . .
2. The district court must then decide whether any of the
circumstances or consequences of conviction appear "atypi-
cal," such that they potentially take the case out of the appli-
cable guideline’s heartland. . . .
3. Having identified factors that may potentially remove a
case from the applicable guideline’s heartland, the district
court must identify each according to the Guidelines’ classi-
fication as a "forbidden," "encouraged," "discouraged," or
"unmentioned" basis for departure. . . . A factor classified
as "forbidden," see, e.g., U.S.S.G. § 5H1.10 (race, sex,
national origin, creed, religion, socio-economic status) . . .
can never provide a basis for departure and its consideration
ends at this step.
4. "Encouraged" factors, see, e.g., U.S.S.G. § 5K2.10 (vic-
tim provocation as a downward departure factor) . . . are
usually appropriate bases for departure. But such factors
8 UNITED STATES v. SPRING
may not be relied upon if already adequately taken into
account by the applicable guideline . . . . Conversely, "dis-
couraged" factors, see, e.g., U.S.S.G. § 5H1.6 (family ties
and responsibilities) . . . are "not ordinarily relevant," but
may be relied upon as bases for departure "in exceptional
cases," e.g., where "the factor is present to an exceptional
degree or in some other way that makes the case different
from the ordinary case where the factor is present." . . .
Finally, although the Sentencing Commission expects
departures based on "unmentioned" factors to be "highly
infrequent," such factors may justify a departure where the
"structure and theory of both relevant individual guidelines
and the Guidelines as a whole" indicate that they take a case
out of the applicable guideline’s heartland.
5. As the last step, the district court must consider whether
circumstances and consequences appropriately classified
and considered take the case out of the applicable guide-
line’s heartland and whether a departure from the guide-
line’s specified sentencing range is therefore warranted.
Id. at 757-58 (citations omitted).
A. Diminished Capacity
The district court departed from the Guidelines on the grounds that
Spring committed the offenses while suffering from a diminished
mental capacity. Specifically, the court explained that
based on all of the information and evidence, the defendant
has [sic] significantly reduced ability to exercise the power
of reason or control over wrongful behavior. The Court fur-
ther states that no normal person would do what he did for
the reasons that he did. The Court finds that 5K2.13 is
encouraged, but is not taken into account in the applicable
guideline. There was no serious threat of violence—the
defendant was not capable of carrying out any of these
things. The Court determines that the defendant is com-
pletely irrational and the Court finds that that irrationality
UNITED STATES v. SPRING 9
explains and contributed to, and in fact, was the basis for his
behavior in this case.
J.A. at 566. The Sentencing Guidelines define "significantly reduced
mental capacity" as the inability to "understand the wrongfulness of
the behavior comprising the offense or to exercise the power of rea-
son" or the inability to "control behavior that the defendant knows is
wrongful." U.S.S.G. § 5K2.13, cmt. n.1. (2002).
In light of the facts of this case, however, the finding that Spring
was unable to exercise the power of reason or control over his wrong-
ful behavior is questionable. On August 15, 2001, Magistrate Judge
Horn ordered that the Federal Bureau of Prisons perform a psychiatric
evaluation of Spring. The Federal Medical Center of the Prison
Bureau thereafter concluded that "[a]t the time of the alleged offenses,
Spring was able to understand the nature, quality, and wrongfulness
of his actions, and had the capacity to conform his conduct to the
requirements of the law." J.A. at 670. This conclusion was followed
by an eighteen-page forensic evaluation report explaining its underly-
ing basis. The district court identified no facts to suggest that the con-
clusion reached in this report was wrong. Nor did the court identify
any facts to support the finding that Spring’s "irrationality" rendered
him incapable of controlling his wrongful conduct.
Moreover, a sentencing court may not depart on the basis of a fac-
tor that has "already been adequately taken into account by the appli-
cable guideline." Rybicki, 96 F.3d at 758. The Guidelines state that "a
court may not depart from the applicable guideline range if . . . the
defendant’s criminal history indicates a need to incarcerate the defen-
dant to protect the public." U.S.S.G. § 5K2.13 (2002). The district
court failed to address this requirement in its statement justifying the
departure under § 5K2.13. The court, however, specifically upheld the
application of the "career offender" enhancement under § 4B1.1 to
Spring. The application of § 4B1.1 placed Spring in Criminal History
Category VI, the highest possible category under the Guidelines. The
court’s finding that Spring was properly classified as a career criminal
as a result of his third violent felony conviction would foreclose any
argument that it was unnecessary to incarcerate Spring in order to
protect the public. Spring’s persistent and violent behavior precluded
any possibility of a downward departure under § 5K2.13.
10 UNITED STATES v. SPRING
B. Overstated Criminal History
The district court concluded that Spring’s Criminal History Cate-
gory of VI overstated the seriousness of his criminal record and there-
fore granted a downward departure. Departures on the basis of
"overstated criminal history" fall within the category of "encouraged"
factors because the Sentencing Commission has acknowledged that
"[t]here may be cases where . . . a defendant’s criminal history cate-
gory significantly over-represents the seriousness of the defendant’s
criminal history or the likelihood that the defendant will commit fur-
ther crimes." U.S.S.G. § 4A1.3 (2002). The district court concluded
that a downward departure was warranted on the basis of this factor
because Spring "never sold drugs" or "committed an actual act of vio-
lence."5 J.A. at 565. This observation, however, was not sufficient to
remove Spring’s case from the heartland of the Guidelines. First, no
departure may issue if it is "inconsistent with the structure and theory
of the relevant guidelines." Rybicki, 96 F.3d at 759. The district
court’s departure on the grounds that Spring never sold drugs or com-
mitted an "actual" act of violence is at odds with the structure and the-
ory of the career offender guideline, because nothing in § 4B1.1
suggests that the career offender enhancement is limited to drug traf-
fickers or physically violent offenders. Indeed, § 4B1.2 specifically
includes the "threatened use" of physical force in defining the term
"crime of violence."
Second, § 4A1.3 provides that a departure for overstated criminal
history is warranted only if the defendant’s criminal history category
"does not adequately reflect the seriousness of the defendant’s crimi-
nal history or likelihood of recidivism." U.S.S.G. § 4A1.3 cmt. back-
ground (2002). Over a period of five years, Spring engaged in a
relentless campaign to threaten federal officials in North Carolina.
Spring was undeterred by mounting convictions and, indeed, commit-
ted these crimes while he was in the custody of the Federal Bureau
of Prisons. This behavior, as the district court recognized, resulted in
his classification as a career offender under § 4B1.1. The district court
effectively nullified the career offender enhancement by awarding a
5
Presumably, in observing that Spring had never committed an "ac-
tual" act of violence, the district court was noting that Spring had never
committed a physically violent offense.
UNITED STATES v. SPRING 11
downward departure on the grounds that the seriousness of Spring’s
criminal history was overstated. In United States v. Weddle, 30 F.3d
532, 536 (4th Cir. 1994), however, we disapproved of "the notion that
criminal history points accrued under [Chapter Four of the Sentencing
Guidelines] may be offset by way of a downward departure under
U.S.S.G. § 4A1.3." Specifically, Weddle observed that:
It is apparent from the language of U.S.S.G. § 4A1.1, as
well as from the commentary, that the Commission recog-
nized the likelihood that a defendant would incur criminal
history points . . . under one or more of subsections (a)-(c).
The fact that this occurs does not mean that the defendant’s
criminal history has been overstated.
Id. at 536. On these facts, no departure was justified on the grounds
that Spring’s criminal history was overstated.
C. Overstated Seriousness of the Offenses
The district court granted Spring’s departure motion on the grounds
that the Guidelines range overstated the seriousness of his offenses.
The Guidelines do not mention this factor as a permissible justifica-
tion for a departure, and thus it falls within the disfavored category
of "unmentioned" factors. Rybicki, 96 F.3d at 758. Valid departures
on the grounds of unmentioned factors are "highly infrequent." Koon,
518 U.S. at 96 (internal quotation omitted). The district court was not
justified in departing downward on this basis. A jury convicted Spring
on two counts of threatening to use a weapon of mass destruction in
violation of 18 U.S.C. § 2332a, and on 15 counts of mailing threaten-
ing communications in violation of 18 U.S.C. § 876. Spring’s multi-
ple convictions of offenses that constitute "crime[s] of violence"
under § 4B1.2, in our view, fairly indicate that the seriousness of the
offenses was not overstated.
D. Extraordinary Motive for the Offenses
The district court found that Spring mailed the threatening letters
in this case with the intent of getting caught and thereby obtaining a
lengthy prison sentence. The court therefore concluded that Spring
12 UNITED STATES v. SPRING
possessed an "extraordinary" motive for committing the offenses in
question and, as a result, departed from the Guidelines:
The Court finds that the defendant’s motive for initiating
this mail campaign was, at that time, to stay in prison. Yet
the defendant is not some institutionalized "old con" but a
virtually delusional failed human being driven to despair by
grossly unreasonable supervised release supervision.
J.A. at 566. The court obviously credited Spring’s allegations that
probation officer Jeff Naber made life for him outside of prison virtu-
ally unbearable. Spring testified at his sentencing hearing that while
he was on supervised release, Naber deliberately caused Spring to
lose his job and repeatedly harassed him to find a suitable residence
despite his poverty. As a result, Spring testified that he lacked an
effective support system outside of prison, and that he sought to
obtain a lengthy sentence, believing that this would qualify him to
receive certain resources that would help him "get back on [his] feet."
J.A. at 381-82. Thus, the district court concluded that Spring commit-
ted his crimes in direct response to the probation officer’s "grossly
unreasonable" supervision, and held that this factor was sufficient to
remove the case from the heartland of the Sentencing Guidelines.
Although the significance of an "extraordinary motive" as a basis
for a downward departure is unclear, we interpret the district court’s
findings with respect to this factor as reflecting a conclusion that
Spring committed the offenses in question while under duress.
Although the district court may have characterized this departure fac-
tor as based on the "extraordinary motive" for the offenses, the only
motive the court identified was the "despair" Spring felt as a result of
the probation officer’s unreasonable conduct. J.A. at 566. The facts
of this case, however, do not satisfy the guideline dealing with depar-
tures for offenses committed under coercion or duress. In particular,
the Sentencing Guidelines state that:
If the defendant committed the offense because of serious
coercion, blackmail or duress, under circumstances not
amounting to a complete defense, the court may decrease
the sentence below the applicable guideline range. . . . Ordi-
narily coercion will be sufficiently serious to warrant depar-
UNITED STATES v. SPRING 13
ture only when it involves a threat of physical injury,
substantial damage to property or similar injury resulting
from the unlawful action of a third party or from a natural
emergency. The Commission considered the relevance of
economic hardship and determined that personal financial
difficulties and economic pressures upon a trade or business
do not warrant a decrease in sentence.
U.S.S.G. § 5K2.12 (2002). On this basis, we have observed that
crimes committed under duress caused by personal financial difficul-
ties or economic hardship do not, under any circumstance, warrant a
departure from the guidelines. See, e.g., United States v. Barber, 119
F.3d 276, 280 (4th Cir. 1997). Whatever despair Spring experienced
as a result of Naber’s behavior or his own straightened financial cir-
cumstances, no departure was permissible on the basis of an extraor-
dinary motive for the offenses.
E. Extreme Vulnerability to Prison Abuse
The district court departed from the Guidelines on the basis that
Spring would be extremely susceptible to abuse in prison. The court
observed that "the defendant is 5’6" tall, weighs about 90 pounds and
looks much younger than his years." J.A. at 565. The court concluded
that a departure was warranted based on these observations in addi-
tion to its finding that Spring had been the victim of two prior assaults
in prison. Id. The Guidelines state that "[p]hysical condition or
appearance, including physique, is not ordinarily relevant in determin-
ing whether a sentence should be outside the applicable guideline
range." U.S.S.G. § 5H1.4 (2002). Obviously, the Guidelines do not
prohibit the consideration of a defendant’s physical characteristics as
a basis for departure in every circumstance. See Koon, 518 U.S. at
106-07 (rejecting argument that susceptibility to prison abuse is an
impermissible departure factor under all circumstances); see also
Debeir, 186 F.3d at 568 (stating that extreme vulnerability to prison
abuse is a "permissible, though not encouraged, basis for departure.").
A sentencing court may not depart on the basis of a discouraged fac-
tor unless "the factor is present to an exceptional degree or in some
way makes the case different from the ordinary case where the factor
is present." Koon, 518 U.S. at 96. The circumstances of this case are
similar to United States v. Lara, 905 F.2d 599 (2d Cir. 1990), in
14 UNITED STATES v. SPRING
which prison authorities were forced to take extreme measures to pro-
tect an inmate whose "immature appearance, sexual orientation and
fragility" made him particularly vulnerable to abuse. Id. at 603.
Accordingly, we hold that the district court properly departed from
the Guidelines on the basis of Spring’s extreme vulnerability to prison
abuse, a fact underscored by his victimization in prison on two sepa-
rate occasions.6 J.A. at 565.
IV.
With the exception of Spring’s extreme vulnerability to prison
abuse, the district court identified no basis justifying a departure from
the Sentencing Guidelines in this case. Therefore, the court’s down-
ward departure is affirmed only with respect to this one factor. We
remand the case so that the district court may properly adjust the mag-
nitude of its sentencing departure in accordance with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED WITH INSTRUCTIONS
6
Because we affirm only one of the district court’s six departure fac-
tors, we must necessarily reject Spring’s argument that the combination
of all five factors was an independent basis for a downward departure.