United States v. Todd Spencer , 628 F. App'x 867 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4060
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TODD ALLEN SPENCER, a/k/a Todd Alan Spencer,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:13-cr-00131-RGD-LRL-1)
Submitted: September 14, 2015 Decided: October 20, 2015
Before SHEDD and DUNCAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Geremy C. Kamens, Acting Federal Public Defender, Frances H.
Pratt, Rodolfo Cejas, II, Assistant Federal Public Defenders,
Alexandria, Virginia, for Appellant. Dana J. Boente, United
States Attorney, William D. Muhr, Assistant United States
Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Todd Allen Spencer pled guilty to one count of threat to
injure by communication, in violation of 18 U.S.C. § 876(c)
(2012). The conviction stemmed from a letter Spencer mailed to
the Clerk of the United States District Court for the Eastern
District of Virginia. On appeal, Spencer challenges his 46-
month sentence, arguing that the district court erred in
adjusting his offense level pursuant to U.S. Sentencing
Guidelines Manual § 2A6.1(b)(1) (2014) because he included
dried, powdery toothpaste in the letter’s envelope. We vacate
Spencer’s sentence and remand for resentencing.
“We review the reasonableness of a sentence under a
deferential abuse-of-discretion standard, first ensuring that
the district court committed no significant procedural error,
such as failing to calculate (or improperly calculating) the
Guidelines range.” United States v. Cox, 744 F.3d 305, 308 (4th
Cir. 2014) (brackets and internal quotation marks omitted). In
reviewing the district court’s application of the Sentencing
Guidelines, we review factual findings for clear error and legal
conclusions de novo. United States v. Strieper, 666 F.3d 288,
292 (4th Cir. 2012).
A six-level adjustment is appropriate under USSG
§ 2A6.1(b)(1) “[i]f the offense involved any conduct evidencing
an intent to carry out such threat.” The application of this
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adjustment hinges on “‘the defendant’s intent and the likelihood
that the defendant would carry out the threat.’” United
States v. Worrell, 313 F.3d 867, 876 (4th Cir. 2002) (quoting
United States v. Gary, 18 F.3d 1123, 1128 (4th Cir. 1994)).
“The majority of circuit courts require that a defendant engage
in some form of overt act before sustaining a § 2A6.1(b)(1)
enhancement.” United States v. Goynes, 175 F.3d 350, 353 (5th
Cir. 1999) (citing Gary, among other authority). Accordingly,
“threats alone” are insufficient to support an adjustment under
§ 2A6.1(b)(1). Id. at 355.
To determine if Spencer’s inclusion of dried toothpaste in
the envelope containing his letter constitutes “conduct
evidencing an intent to carry out such threat,” we must first
identify the threat(s) that Spencer’s letter communicated. On
appeal, the Government argues that Spencer’s letter contains a
threat to kill or injure the recipient of the letter and a
threat to disrupt the workings of the district court. * The
Government, however, did not present the latter interpretation
to the district court, and nothing in the record shows that the
*Below, the Government also argued Spencer’s letter
contained a threat to place the recipient in fear of her life.
On appeal, the Government does not raise any argument regarding
this interpretation of the threat, thus abandoning it. See
United States v. Powell, 666 F.3d 180, 185 n.4 (4th Cir. 2011)
(stating that Government abandons arguments raised below where
it does not present them in its appellate brief).
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court relied on this interpretation when imposing the
§ 2A6.1(b)(1) adjustment. Accordingly, we limit our review of
the propriety of the adjustment to the theory that Spencer’s
inclusion of the dried toothpaste constituted conduct evidencing
an intent to carry out a threat to kill or injure the recipient
of his letter. See United States v. Llamas, 599 F.3d 381, 389
(4th Cir. 2010) (holding that appellate court must confine its
basis for upholding adjustment to theories relied on by district
court and “may not guess at the district court’s rationale,
searching the record for . . . any . . . clues that might
explain a sentence” (internal quotation marks omitted)).
While the application notes to USSG § 2A6.1(b)(1) do not
discuss or provide any examples of what constitutes “conduct
evidencing an intent to carry out [a] threat,” the section does
cross-reference USSG § 2M6.1, which pertains to the use or
threatened use of biological agents and toxins. See USSG
§ 2A6.1(c). The commentary to USSG § 2M6.1 does discuss when a
defendant’s conduct evidences an intent to carry out a threat.
USSG § 2M6.1 cmt. n.2. Relevant here, a defendant does not
engage in conduct evidencing an intent to carry out a threat to
use a biological agent or toxin by dispersing a substance that
appears to be an agent or toxin but is not, and the defendant
knows is not, an actual biological agent or toxin. Id.
Applying this concept to the underlying facts, Spencer’s
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inclusion of a substance he knew to be dried toothpaste does not
constitute conduct evidencing an intent to carry out a threat to
kill or injure the recipient of his letter because it does not
show a subjective belief on Spencer’s part that he would carry
out the threat, or increase the likelihood that he would carry
it out. See Worrell, 313 F.3d at 876. Accordingly, we conclude
that the district court erred in applying the six-level
adjustment under USSG § 2A6.1(b)(1).
When we find a procedural error at sentencing, we must
consider whether the error was harmless. United States v. Lynn,
592 F.3d 572, 576 (4th Cir. 2010). “A Guidelines error is
considered harmless if we determine that (1) the district court
would have reached the same result even if it had decided the
guidelines issue the other way, and (2) the sentence would be
reasonable even if the guidelines issue had been decided in the
defendant’s favor.” United States v. Gomez-Jimenez, 750 F.3d
370, 382 (4th Cir.) (internal quotation marks omitted), cert.
denied, 135 S. Ct. 305, 384 (2014). Because the error increased
Spencer’s Guidelines range and because nothing in the record
indicates that, absent the error, the district court would have
departed upward and imposed a 46-month sentence, we cannot
conclude that the error was harmless.
Accordingly, we vacate Spencer’s sentence and remand for
resentencing without application of the § 2A6.1(b)(1)
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adjustment. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
VACATED AND REMANDED
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