United States v. Randall Keystone ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4919
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RANDALL J. KEYSTONE,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of Virginia, at Big
Stone Gap. James P. Jones, District Judge. (2:18-cr-00013-JPJ-PMS-1)
Submitted: July 19, 2021 Decided: August 13, 2021
Before WILKINSON, MOTZ, and RUSHING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Juval O. Scott, Federal Public Defender, Lisa Marie Lorish, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charlottesville, Virginia,
for Appellant. Thomas T. Cullen, United States Attorney, Jennifer R. Bockhorst, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Randall J. Keystone appeals his convictions by a jury of two counts of knowingly
transmitting a true threat in interstate commerce, in violation of 18 U.S.C. § 875(c), and
his sentence of 120 months. He argues that the indictment was multiplicitous, that there
was insufficient evidence to support his convictions, and that his sentence is procedurally
and substantively unreasonable. We affirm.
Keystone argues that his multiple convictions violate the Double Jeopardy Clause
of the Fifth Amendment. An indictment is multiplicitous if it charges “a single offense . . .
in multiple . . . counts.” United States v. Thomas, 669 F.3d 421, 425 (4th Cir. 2012)
(internal quotation marks omitted). The Double Jeopardy Clause “prohibits the
government from subjecting a person to multiple punishments for the same offense,”
United States v. Schnittker, 807 F.3d 77, 81 (4th Cir. 2015) (internal quotation marks
omitted), “not for the same conduct or actions,” Gamble v. United States, 139 S. Ct. 1960,
1965 (2019) (internal quotation marks omitted). “It is well-settled that a defendant may be
charged and prosecuted for the same statutory offense multiple times when each
prosecution is based on discre[te] acts that each constitute a crime.” United States v.
Goodine, 400 F.3d 202, 208 (4th Cir. 2005). With these standards in mind, we have
reviewed the record on appeal and find no reversible error in the district court’s denial of
Keystone’s motion to dismiss the indictment on double jeopardy grounds. See United
States v. Hosford, 843 F.3d 161, 163 (4th Cir. 2016) (stating standard of review).
Next, Keystone argues that the letters he mailed to the former state court prosecutor
cannot be considered true threats because they were hypothetical and did not evidence that
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violence was likely or imminent. “We review the denial of a motion for judgment of
acquittal de novo.” United States v. Savage, 885 F.3d 212, 219 (4th Cir. 2018). In
assessing the sufficiency of the evidence, we determine whether there is substantial
evidence to support the convictions, “viewing the evidence in the light most favorable to
the [G]overnment.” Id. (internal quotation marks omitted). “Substantial evidence is
evidence that a reasonable finder of fact could accept as adequate and sufficient to support
a conclusion of a defendant’s guilt beyond a reasonable doubt.” United States v.
Rodriguez-Soriano, 931 F.3d 281, 286 (4th Cir. 2019) (brackets and internal quotation
marks omitted). “A defendant who brings a sufficiency challenge bears a heavy burden,
as appellate reversal on grounds of insufficient evidence is confined to cases where the
prosecution’s failure is clear.” Savage, 885 F.3d at 219 (internal quotation marks omitted).
To convict a defendant of violating 18 U.S.C. § 875(c), the Government must
establish “(1) that the defendant knowingly transmitted a communication in interstate . . .
commerce; (2) that the defendant subjectively intended the communication as a threat; and
(3) that the content of the communication contained a true threat to . . . injure.”
United States v. White, 810 F.3d 212, 220-21 (4th Cir. 2016) (internal quotation marks
omitted). “The speaker need not actually intend to carry out the threat” because “a
prohibition on true threats protects individuals from the fear of violence and from the
disruption that fear engenders, in addition to protecting people from the possibility that the
threatened violence will occur.” Virginia v. Black, 538 U.S. 343, 359-60 (2003) (brackets
and internal quotation marks omitted). Thus, a true threat is distinguishable from
unprotected categories of speech like fighting words or words that are “directed to inciting
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or producing imminent lawless action and [are] likely to incite or produce such action.” Id.
at 359 (internal quotation marks omitted).
Our review of the record leads us to conclude that sufficient evidence supports the
jury’s verdict. Keystone argues that, in order to convict him under § 875(c), the
Government was required to show that violence was likely and/or imminent. But his
argument is squarely foreclosed by the Supreme Court’s decision in Black.
Finally, Keystone argues that his 120-month sentence, which is above the
Sentencing Guidelines range established by the district court, is procedurally and
substantively unreasonable. We review a sentence, “whether inside, just outside, or
significantly outside the Guidelines range[,] under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). This review requires
consideration of both the procedural and substantive reasonableness of the sentence. Id. at
51. In determining procedural reasonableness, we consider whether the district court
properly calculated the defendant’s advisory Guidelines range, considered the 18 U.S.C.
§ 3553(a) factors, analyzed any arguments presented by the parties, and sufficiently
explained the selected sentence. Id. at 49-51.
Here, the district court correctly calculated the Guidelines range but varied upward
based on its review of the § 3553(a) factors, particularly the need to protect the public from
future crimes. * Keystone complains that the district court speculated about his motivations
*
Contrary to Keystone’s assertion on appeal, the protections of Fed. R. Crim. P.
32(h) do not extend to the upward variant sentence imposed by the district court.
See Irizarry v. United States, 553 U.S. 708, 716 (2008).
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and future conduct, but, in sentencing defendants, district courts must consider the need for
the imposed sentence “to protect the public from further crimes of the defendant.”
18 U.S.C. § 3553(a)(2)(C). The district court did just that by evaluating Keystone’s risk
of recidivism in light of his criminal history and lack of understanding of the seriousness
of his repeated conduct of sending threatening letters. Although Keystone asserts that the
district court relied on victim impact that was not in the record, his assertion is belied by
the trial testimony of the victims. We therefore conclude that Keystone’s sentence is
procedurally reasonable.
If, as here, a sentence is free of “significant procedural error,” we review it for
substantive reasonableness, “tak[ing] into account the totality of the circumstances.” Gall,
552 U.S. at 51. “In reviewing a variant sentence, we consider whether the sentencing court
acted reasonably both with respect to its decision to impose such a sentence and with
respect to the extent of the divergence from the sentencing range.” United States v.
Washington, 743 F.3d 938, 944 (4th Cir. 2014) (internal quotation marks omitted). “We
will vacate such [a] sentence if its stated reasoning is inadequate or if it relies on improper
factors.” United States v. Bolton, 858 F.3d 905, 915 (4th Cir. 2017). “While a district
court’s explanation for the sentence must support the degree of the variance, it need not
find extraordinary circumstances to justify a deviation from the Guidelines.” United States
v. Spencer, 848 F.3d 324, 327 (4th Cir. 2017) (citation and internal quotation marks
omitted). Because our review is ultimately for an abuse of discretion, we accord “due
deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the
extent of the variance.” United States v. Zuk, 874 F.3d 398, 409 (4th Cir. 2017) (internal
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quotation marks omitted). Even if “we might reasonably conclude that a different sentence
is appropriate, that conclusion, standing alone, is an insufficient basis to vacate the district
court’s chosen sentence.” Id. (alterations and internal quotation marks omitted).
Our review of the record confirms that Keystone’s sentence is substantively
reasonable. The district court provided a thorough discussion of the § 3553(a) factors and
concluded that, in light of Keystone’s history of threatening communications, an above-
Guidelines sentence was necessary to protect the public from future crimes. We defer to
the district court’s determination that the § 3553(a) factors, taken as a whole, justified
Keystone’s sentence.
Accordingly, we affirm the criminal judgment. 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.
AFFIRMED
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