United States v. Judd ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-51081 c/w Nos. 98-51217; 99-50038; 99-50040;
99-50041; 99-50045; 99-50296; 99-50446; 99-50447; 99-50449;
99-50450; 99-50511; 99-50670; 99-50780; 99-50819; 99-50830;
99-50845; 99-50846; 99-50847; 99-50848; 99-50851; 99-50933;
00-51324; 01-50003; 01-50004
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEITH RUSSELL JUDD,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. MO-98-CR-93-ALL
--------------------
March 19, 2001
Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Keith Judd was found guilty by a jury of two counts of
mailing a threatening communication with the intent to extort
money or something of value. See 18 U.S.C. § 876. He was
sentenced to 210 months’ imprisonment, three years of supervised
release, restitution to the victim in the amount of $20,000, and
a special assessment of $200.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 98-51081 c/w Nos. 98-51217; 99-50038; 99-50040;
99-50041; 99-50045; 99-50296; 99-50446; 99-50447; 99-50449;
99-50450; 99-50511; 99-50670; 99-50780; 99-50819; 99-50830;
99-50845; 99-50846; 99-50847; 99-50848; 99-50851; 99-50933;
00-51324; 01-50003; 01-50004
-2-
Judd argues that the evidence was insufficient to establish
that he had an intent to extort with the mailing of postcards in
1997 which stated “Send the money back now, Keith Judd, Last
Chance or Dead.” He also contends that the 1997 package
containing a semen stained Playboy, a knife inside the magazine,
a key chain, and his father’s military discharge papers did not
show an intent to extort and did not constitute a threat.
Judd further argues that the district court committed
sentencing errors when it 1) increased Judd’s offense level by
six for conduct evidencing an intent to carry out the threats,
see U.S.S.G. § 2A6.1(b)(1); 2) increased Judd’s offense level by
two because the offense involved more than two threats, see
U.S.S.G. § 2A6.1(b)(2); 3) upwardly departed five levels based
upon the extreme psychological harm to the victim and Judd’s
extreme conduct, see U.S.S.G. §§ 5K2.3 & 5K2.8, p.s.; 4) upwardly
departed an additional five levels because Judd’s mailing of
letters to jurors after his trial was conduct outside the
heartland of cases covered under the Sentencing Guidelines, see
U.S.S.G. § 5K2.0; and 5) increased Judd’s criminal history
category from category I to category IV. See U.S.S.G. § 4A1.3.
Viewing the record in a light most favorable to the verdict,
we find that there was sufficient evidence establishing that Judd
had an intent to extort money with the mailing of the 1997
postcards and the package mailed to the victim and that the
mailing of the package constituted a threat. See United States
No. 98-51081 c/w Nos. 98-51217; 99-50038; 99-50040;
99-50041; 99-50045; 99-50296; 99-50446; 99-50447; 99-50449;
99-50450; 99-50511; 99-50670; 99-50780; 99-50819; 99-50830;
99-50845; 99-50846; 99-50847; 99-50848; 99-50851; 99-50933;
00-51324; 01-50003; 01-50004
-3-
v. Duhon, 565 F.2d 345, 351 (5th Cir. 1978); United States v.
Lance, 536 F.2d 1065, 1068 (5th Cir. 1976); see also United
States v. Bell, 678 F.2d 547, 549 (5th Cir. 1982)(en banc),
aff’d, 462 U.S. 356 (1983).
The district court’s determination that there was conduct
evidencing Judd’s intent to carry out his threats was not clearly
erroneous, and the district court’s six-level enhancement under
U.S.S.G. § 2A6.1(b)(1) was proper. See United States v. Goynes,
175 F.3d 350, 353 (5th Cir. 1999). The district court’s finding
that Judd’s offense involved more than two threats was supported
by the record and not clearly erroneous, and the two-level
enhancement under U.S.S.G. § 2A6.1(b)(2) was proper. See United
States v. Brock, 211 F.3d 88, 90-92 (4th Cir. 2000).
The district court’s five-level enhancement based upon the
extreme psychological injury to the victim and Judd’s extreme
conduct was also supported by the record, and the district court
did not double count conduct previously considered with the
court’s § 2A6.1(b)(1) and (2) enhancements. Judd’s challenge to
the five-level enhancement under U.S.S.G. § 5K2.3, p.s. and
§ 5K2.8, p.s. is without merit. The district court’s additional
five-level enhancement based upon Judd’s mailing of information
to jurors did not rely on the conduct supporting the two-level
obstruction-of-justice enhancement. Judd’s challenge to the
U.S.S.G. § 5K2.0 enhancement is without merit. Furthermore, the
district court sufficiently stated reasons for increasing Judd’s
No. 98-51081 c/w Nos. 98-51217; 99-50038; 99-50040;
99-50041; 99-50045; 99-50296; 99-50446; 99-50447; 99-50449;
99-50450; 99-50511; 99-50670; 99-50780; 99-50819; 99-50830;
99-50845; 99-50846; 99-50847; 99-50848; 99-50851; 99-50933;
00-51324; 01-50003; 01-50004
-4-
criminal history category from category I to category IV, and
Judd’s challenge to the increase is without merit. See U.S.S.G.
§ 4A1.3; United States v. Lambert, 984 F.2d 658, 663 (5th Cir.
1993 (en banc).
Finally, the multiple enhancements resulting in Judd’s
sentencing range being several times greater than the range
determined by the presentence report did not indicate error with
Judd’s sentencing. See United States v. Daughenbaugh, 49 F.3d
171, 174-75 (5th Cir. 1995). Judd’s conviction and sentence are
AFFIRMED.
Judd has filed numerous notices of appeal and motions in
this court. A number of those appeals have either been stricken
or consolidated with the instant appeal, and Judd has been
directed to file one brief addressing all his issues with his
conviction. To the extent that there are appeals from the
district court criminal case docketed as 98-CR-93-ALL not yet
consolidated, those appeals are now CONSOLIDATED with the instant
appeal. See Fed. R. App. P. 3(b). All motions currently pending
in this court pertaining to Judd’s appeal of his criminal case
are DENIED.