United States v. Stokes ( 2003 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4067
TURNER DAVID STOKES,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CR-02-154)
Argued: August 25, 2003
Decided: October 15, 2003
Before WILKINS, Chief Judge, and TRAXLER and
GREGORY, Circuit Judges.
Affirmed in part and vacated and remanded in part by published opin-
ion. Chief Judge Wilkins wrote the opinion, in which Judge Traxler
and Judge Gregory joined.
COUNSEL
ARGUED: Edward Henry Weis, Assistant Federal Public Defender,
Charleston, West Virginia, for Appellant. Michael Harvard Spencer,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee. ON BRIEF: Mary Lou Newberger, Federal Public
Defender, Charleston, West Virginia, for Appellant. Kasey Warner,
United States Attorney, Charleston, West Virginia, for Appellee.
2 UNITED STATES v. STOKES
OPINION
WILKINS, Chief Judge:
Appellant Turner David Stokes pled guilty to mailing a threatening
communication, see 18 U.S.C.A. § 876(c) (West Supp. 2003). He
claims that the district court erred at sentencing by imposing an
enhancement under U.S. Sentencing Guidelines Manual § 2A6.1(b)(2)
(2002) and denying a reduction under U.S.S.G. § 2A6.1(b)(5). We
vacate the enhancement, affirm the denial of the reduction, and
remand for resentencing.
I.
The basis for this prosecution was a letter Stokes mailed to his
wife, whom he suspected of infidelity. As is relevant here, the letter
appeared to threaten the lives of Stokes’ wife, "the man or men you
are with," and Stokes’ three children. J.A. 49. (The full letter is repro-
duced in an appendix to this opinion.)
The presentence report prepared after Stokes pled guilty recom-
mended an adjusted offense level of 10, representing a base offense
level of 12 reduced by two levels for acceptance of responsibility, see
U.S.S.G. § 3E1.1(a). Stokes asserted that his offense level should be
reduced pursuant to § 2A6.1(b)(5), which authorizes a downward
adjustment if (a) no other adjustments under § 2A6.1 apply and (b)
"the offense involved a single instance evidencing little or no delibera-
tion."1
1
Section 2A6.1 provides in full:
(a) Base Offense Level:
(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
(1) If the offense involved any conduct evidencing an
intent to carry out such threat, increase by 6 levels.
UNITED STATES v. STOKES 3
The district court found that Stokes did not meet either of the
requirements of § 2A6.1(b)(5). Regarding the first requirement, the
court found that Stokes was eligible for an enhancement under
§ 2A6.1(b)(2) because his letter included threats against multiple peo-
ple. The court further found that, in light of Stokes’ acknowledged
difficulties with reading and writing, his letter must have required sig-
nificant deliberation. Based on these findings, the court rejected
Stokes’ request for a § 2A6.1(b)(5) reduction and instead imposed a
two-level § 2A6.1(b)(2) enhancement. The court then sentenced
Stokes to 21 months imprisonment.
II.
Stokes first asserts that the enhancement for multiple threats was
erroneous because his entire letter comprised a single threat, even
though it was directed at multiple victims. We agree that the
§ 2A6.1(b)(2) enhancement does not apply.
This claim presents an issue of guideline interpretation, which we
review de novo. See Elliott v. United States, 332 F.3d 753, 761 (4th
Cir. 2003). In interpreting a guideline, we apply the ordinary rules of
statutory construction. See United States v. Bahhur, 200 F.3d 917,
927 (6th Cir. 2000). These rules require us to give the guideline its
plain meaning, as determined by examination of its "language, struc-
(2) If the offense involved more than two threats, increase
by 2 levels.
(3) If the offense involved the violation of a court protec-
tion order, increase by 2 levels.
(4) If the offense resulted in (A) substantial disruption of
public, governmental, or business functions or services;
or (B) a substantial expenditure of funds to clean up,
decontaminate, or otherwise respond to the offense,
increase by 4 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.
4 UNITED STATES v. STOKES
ture, and purpose." United States v. Horton, 321 F.3d 476, 479 (4th
Cir. 2003) (internal quotation marks omitted), petition for cert. filed
(U.S. May 19, 2003) (No. 02-10830). We must also examine the com-
mentary accompanying the guideline, which "is authoritative unless
it violates the Constitution or a federal statute, or is inconsistent with,
or a plainly erroneous reading of, that guideline." Stinson v. United
States, 508 U.S. 36, 38 (1993).
In construing § 2A6.1(b)(2), we begin with the proposition that, all
other factors being equal, a defendant who has threatened multiple
individuals deserves a more severe penalty than a defendant who has
threatened only one person. Section 2A6.1 contains two provisions
that might permit a district court to impose a greater sentence for the
more culpable defendant. First, as noted above, § 2A6.1(b)(2) pro-
vides for a two-level increase "[i]f the offense involved more than two
threats." And, Application Note 3(B) states:
If the offense involved substantially more than two threaten-
ing communications to the same victim or a prolonged
period of making harassing communications to the same
victim, or if the offense involved multiple victims, an
upward departure may be warranted.
The question we must answer is whether these provisions authorize
both an enhancement and a departure when, as here, the defendant
made a single communication threatening multiple people. We con-
clude that only a departure, not an enhancement, is appropriate.
Note 3(B) authorizes a departure for an offense that involved
(i) "substantially more than two threatening communications to the
same victim," (ii) "a prolonged period of making harassing communi-
cations to the same victim," or (iii) "multiple victims." The third por-
tion of the note applies here. The key word within this portion of the
note is "multiple," which means "consisting of, including, or involv-
ing more than one." Webster’s Third New Int’l Dictionary 1485
(1981). Thus, Note 3(B) authorizes an upward departure if a single
threatening communication names two or more victims. If
§ 2A6.1(b)(2) applies whenever a defendant threatens more than two
victims, then a defendant who mails a single communication threaten-
ing three people could receive both a § 2A6.1(b)(2) enhancement and
UNITED STATES v. STOKES 5
a departure under Note 3(B). We do not believe the Sentencing Com-
mission intended this result, as departures are generally reserved for
factors that are not adequately taken into account in the applicable
guideline. See U.S.S.G. § 5K2.0, p.s.
Our conclusion is buttressed by the fact that Note 3(B) imposes a
far lower threshold for departures based on multiple victims than for
departures based on the number of threatening communications. In
the latter circumstance, a departure is permitted only if the defendant
made "substantially more than two threatening communications." It
appears that the reason for this stringent requirement is that in this
scenario, a defendant is subject to a departure in addition to a
§ 2A6.1(b)(2) enhancement. If the Sentencing Commission had con-
templated that a defendant who threatened several people in a single
communication would be subject to a § 2A6.1(b)(2) enhancement, it
would have included a word like "substantially" in the portion of Note
3(B) relating to multiple victims. Cf. United States v. Adelman, 168
F.3d 84, 87 (2d Cir. 1999) (concluding that none of the specific
offense characteristics listed in § 2A6.1 cover threats against multiple
victims).
In sum, Note 3(B) clarifies that the phrase "more than two threats,"
as used in § 2A6.1(b)(2), refers to the number of threatening commu-
nications, not the number of victims threatened.2 Thus, the district
court erred in imposing a § 2A6.1(b)(2) enhancement. We therefore
vacate the enhancement and remand for resentencing.
III.
We next consider the refusal of the district court to reduce Stokes’
offense level pursuant to § 2A6.1(b)(5). As to this issue, we affirm.
2
There may be cases in which multiple threats issued within a single
letter or conversation are so distinct in nature and purpose that they
should not be treated as a single threat for purposes of § 2A6.1(b)(2).
This is not such a case, however; the letter at issue here was brief, it was
directed to a single recipient, and all of the threatening statements within
it were similar in nature and were based on the same grievance.
6 UNITED STATES v. STOKES
The district court denied a § 2A6.1(b)(5) reduction based on two
findings: (1) that Stokes made more than two threats and (2) that his
letter evidenced substantial deliberation. Although we have already
vacated the first of these findings, the second finding suffices to sup-
port the district court decision. As the district court observed, Stokes
must have expended great effort in writing the letter because he has
difficulty reading and writing. Cf. United States v. Stevenson, 126
F.3d 662, 665-66 (5th Cir. 1997) (stating that written threats generally
require deliberation and suggesting that § 2A6.1(b)(5) reduction may
be appropriate only in cases involving oral threats). Under these cir-
cumstances, the finding that Stokes’ letter reflects more than minimal
deliberation is not clearly erroneous. See Elliott, 332 F.3d at 761 (stat-
ing that factual determinations relating to application of guidelines are
reviewed for clear error).
IV.
For the foregoing reasons, we vacate Stokes’ § 2A6.1(b)(2)
enhancement, affirm the denial of a § 2A6.1(b)(5) reduction, and
remand for further proceedings.3
AFFIRMED IN PART; VACATED
AND REMANDED IN PART
3
We note that, while Stokes’ appeal was pending, Congress enacted
legislation providing for a de novo standard of review for certain depar-
ture decisions under the sentencing guidelines. See Prosecutorial Reme-
dies and Other Tools to end the Exploitation of Children Today Act of
2003 ("PROTECT Act"), Pub. L. No. 108-21, § 401(d), 117 Stat. 650,
670. Because the district court did not depart from the sentencing guide-
lines range, we need not decide whether the provisions of the PROTECT
Act apply to Stokes’ case.
UNITED STATES v. STOKES 7
APPENDIX
First page of Stokes’ letter:
8 UNITED STATES v. STOKES
Second page of Stokes’ letter:
UNITED STATES v. STOKES 9
Third page of Stokes’ letter: