United States v. Berrow ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4433
GEORGE DOUGLAS BERROW,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
James A. Beaty, Jr., District Judge.
(CR-96-256)
Submitted: February 26, 1998
Decided: March 20, 1998
Before WIDENER and LUTTIG, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Louis C. Allen, III, Federal Public Defender, Eric D. Placke, Assistant
Federal Public Defender, Greensboro, North Carolina, for Appellant.
Walter C. Holton, Jr., United States Attorney, Michael F. Joseph,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
George Douglas Berrow pled guilty to two counts of mailing
threatening communications in violation of 18 U.S.C.§ 876 (1994).
He appeals his 34-month sentence, contending that the district court
erred in considering that he previously shot his wife when it enhanced
his sentence by six levels for conduct evidencing an intent to carry out
the threats. See U.S. Sentencing Guidelines Manual § 2A6.1(b)(1)
(1995). We affirm.
A short time after Berrow's wife left him, he approached her car
at an intersection and shot her five times with a revolver. He also shot
his son, who was in the car. Both survived. Berrow pled guilty to
assault and weapons charges in state court and was sentenced to eight
years imprisonment.
A year after the shooting, Berrow sent a letter to his wife at her
workplace. It stated in part, "The only thing that would have made me
feel better was to have you in your grave so that one day before I died
I could have spit on it." In February 1996, Berrow sent a letter
addressed to Brenda Martin* via her sister-in-law. It stated in part, "I
want you dead kid that's the bottom line now it's up to you to figure
out how to prevent that." A third letter was sent with divorce papers
to Ms. Martin's attorney in April 1996. It stated in part, "When I put
those five slugs into your ass, the only thing it wasn't final. . . . Your
death was supposed to have made it final. . . . That's what keeps me
going the hatred. Knowing that you are still out their still alive, and
that it wont be long before I return to the same outside world. . . . My
vows was until death do us part. See you in May 97 and you can
count on that." The last letter was sent to Ms. Martin at her workplace
in September 1996. It read in part:
_________________________________________________________________
*Mrs. Berrow obtained a divorce in May 1996 and thereafter used her
maiden name, Brenda Martin.
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I told you a long time ago that the only thing that would sep-
arate us would be death. . . . [Y]ou wanted to be brave think-
ing that God was going to save you ass from those bullet.
Well he saved you from death that time. The next time I
wouldn't play around with faith again. I am ready to die and
don't give a dam about life, I am supposed to be on death
row right now that's the way I had it planed. . . .[I]f some-
one wants to get somebody their nothing you can do about
it. . . . See you in hell bitch.
The government requested a sentence enhancement for conduct
evidencing an intent to carry out the threat under USSG
§ 2A6.1(b)(1). The guideline currently provides for a six-level
enhancement "[i]f the offense involved any conduct evidencing an
intent to carry out such threat." USSG § 2A6.1(b)(1) (emphasis
added). The commentary states that, in determining whether this spe-
cific offense characteristic should apply, the focus should be the
defendant's intent and the likelihood that the defendant would carry
out the threat. USSG § 2A6.1, comment. (n.1). Before USSG
§ 2A6.1(b)(1) was amended in 1993, it stated that the enhancement
should be made "[i]f the defendant engaged in any conduct evidenc-
ing an intent to carry out such threat." (emphasis added). The purpose
of the amendment was to delete "language that could be construed as
a limitation on the scope of conduct for which a defendant is account-
able under § 1B1.3 (Relevant Conduct) and[replace] it with language
consistent with that used in other offense guidelines." USSG App. C.
amd. 480 (effective Nov. 1, 1993).
At sentencing, the government argued that the shooting was rele-
vant conduct. However, Berrow and the probation officer opposed the
enhancement, arguing that the shooting was not relevant conduct and
that the enhancement could only be based on conduct which was part
of the instant offense. The district court determined that the prior
shooting was probative of the seriousness of Berrow's intent to carry
out the threats and the likelihood that he would carry them out. See
USSG § 2A6.1, comment. (n.1). The court noted that in three of the
letters Berrow made a direct connection between his threat and the
prior shooting, and that Berrow also referred to his expected release
date as his first opportunity to complete his plan of killing Ms. Mar-
tin. Consequently, the court found that a six-level enhancement was
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warranted. Although the district court did not make a finding concern-
ing whether the shooting was relevant conduct, it deleted three crimi-
nal history points assigned for the eight-year sentence Berrow was
serving to avoid possible double counting. In finding that the prior
shooting was probative of Berrow's intent to carry out his threats, the
district court impliedly found that the shooting was not relevant con-
duct under USSG § 1B1.3. If the shooting were relevant conduct,
there would be no need for a finding on whether it could be consid-
ered in determining the sentence because relevant conduct is always
considered. The court also found implicitly that pre-threat conduct
could be considered even after the 1993 amendment. While a more
explicit ruling on the effect of the 1993 amendment would have been
preferable, we find that the court's ruling was adequate to comply
with the requirement that it make findings to resolve disputed issues.
See United States v. McManus, 23 F.3d 878, 887 (4th Cir. 1994).
On appeal, as in the district court, Berrow argues that the 1993
amendment to USSG § 2A6.1(b)(1) precludes the district court from
considering his pre-threat conduct in determining whether there was
evidence that he intended to carry out the threat. Berrow relies on
United States v. Sullivan, 75 F.3d 297 (7th Cir. 1996). In Sullivan, the
Seventh Circuit upheld an enhancement based on pre-threat conduct
but in dicta discussed at some length the effect of the 1993 amend-
ment to USSG § 2A6.1(b)(1), opining that,"[T]he amendment was
intended to broaden the scope of conduct which could be considered
as grounds for the six-level enhancement. However, the new wording
may also limit consideration of the defendant's own conduct to that
which `the offense involved.'" Sullivan , 75 F.3d at 303.
Before the 1993 amendment to USSG § 2A6.1(b)(1), we held that
pre-threat conduct could be considered in determining whether the
defendant had an intent to carry out the threat. See United States v.
Gary, 18 F.3d 1123, 1127-28 (4th Cir. 1994) (pivotal inquiry is defen-
dant's intent and likelihood that he will carry out threat); accord
United States v. Taylor, 88 F.3d 938, 942-43 (11th Cir. 1996); United
States v. Hines, 26 F.3d 1469, 1473-74 (9th Cir. 1994); United States
v. Fonner, 920 F.2d 1330, 1332 (7th Cir. 1990). But see United States
v. Hornick, 942 F.2d 105, 108 (2d Cir. 1991).
Except for Sullivan, cases decided under the amended version of
USSG § 2A6.1(b)(1) have upheld the enhancement based on prior
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conduct as long as there is a direct connection between the prior con-
duct and the threat. See United States v. Carter , 111 F.3d 509, 513-14
(7th Cir. 1997) (history of abuse of threat victim); United States v.
Barbour, 70 F.3d 580, 586-87 (11th Cir. 1995) (unsuccessful prior
attempt to assassinate president), cert. denied , ___ U.S. ___, 64
U.S.L.W. 3691 (U.S. Apr. 15, 1996) (No. 95-8208). In fact, Carter
cites Sullivan for the proposition that prior conduct may be considered
where the threat is part of a long course of harassment. See Carter,
111 F.3d at 513.
We find that the court's ruling here was correct because Berrow's
repeated references to the shooting and assurances that he intended to
kill Ms. Martin when he was released from prison provided a basis
for the enhancement. Under both versions of USSG§ 2A6.1(b)(1),
the focus of the enhancement is the instant offense--the defendant's
conduct in sending the threatening communications and the defen-
dant's intent and ability to carry out his threats. Under either version,
pre-threat conduct may be useful to shed light on the defendant's cur-
rent intention. Under neither version is the enhancement given for the
pre-threat conduct itself. Therefore, the district court did not err in
relying on Gary to find that Berrow's pre-threat conduct could be
considered to shed light on whether his offense conduct--the threat-
ening letters--evinced an intent to carry out his threats.
We therefore affirm the sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED
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