United States v. England, David H. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2381
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID H. ENGLAND,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois.
No. 04 CR 50068—Philip G. Reinhard, Judge.
____________
ARGUED SEPTEMBER 24, 2007—DECIDED NOVEMBER 7, 2007
____________
Before POSNER, FLAUM and WOOD, Circuit Judges.
FLAUM, Circuit Judge. On September 15, 2004,
defendant-appellant David England, a convicted felon,
smashed his neighbor’s car window with the butt of a gun
and then discharged the gun into the air. England was
soon arrested and, while in prison, he campaigned over
the prison phone to get his sister, brother-in-law and
father to hide evidence and create an alibi for him. When
he learned that his brother-in-law was instead cooperating
in the investigation, he made threats to kill him.
For his efforts, a grand jury returned a four-count
indictment. The indictment charged one count of unlawful
possession of a firearm by a felon under 18 U.S.C. § 922(g),
2 No. 06-2381
two counts of witness tampering in violation of 18 U.S.C.
§ 1512(b), and one count of threatening physical force
with the intent to prevent the testimony of a witness in
violation of 18 U.S.C. § 1512(a)(2)(A). At trial, England
proceeded without counsel and, on January 6, 2006, a jury
convicted him of all counts. The district court then sen-
tenced England to 262 months imprisonment.
England now appeals, challenging the sufficiency of the
evidence underlying his conviction for the threats, the
voluntariness of his decision to represent himself, and the
reasonableness of his sentence. For the reasons set out
below, we affirm his conviction and the district court’s
finding of a voluntary waiver of his right to counsel.
However, because the district court did not consider
the potential disparity that may arise from England’s
sentence, we vacate his sentence and remand for
resentencing.
I. Background
On September 15, 2004, defendant-appellant David
England was investigating a recently broken window in
his mother’s home. He had confronted four neighbors
about the incident and tried to get one to admit to break-
ing the window. When his efforts to elicit a confession
failed, he evened the score by shattering two car windows
in a nearby car and firing a gun into the air. One of the
onlookers notified the police and, a week later, the police
apprehended England at a gas station where he had
stopped to refuel. The police opted not to impound the
car he was driving—his mother’s Pontiac Grand Am—
and it remained parked at the gas station. Based on the
onlookers’ statements, a grand jury indicted England
for being a felon in possession of a firearm.
While in custody, England called his sister, Dawn Bull,
regarding the Grand Am. He asked his sister to move the
No. 06-2381 3
car to his grandmother’s house and “put a tarp over it.”
Later that day and again on September 25, he called his
brother-in-law, Robert Bull, inquiring as to the where-
abouts of the car and telling Bull not to let anyone use
it. On September 26, after moving the car, England’s
sister and mother found a blue duffle bag in the engine
compartment. Concerned about the contents of the bag,
they flagged down a police officer who removed it and
found a bloodied gun inside. The police conducted DNA
analysis on the recovered blood and matched the sample
to England.
News of the gun’s recovery did not sit well with England;
he immediately grew concerned that his sister and mother
were cooperating with the police. On September 27, he
called his brother-in-law and told him to make sure that
his sister and his mother “don’t get out o’ hand” and told
him to “control them women.” Later, on November 1, he
also asked his sister to corroborate his alibi, saying that
he did not “understand why a . . . couple of my family
members can’t . . . recognize they were up there at Barnes
and Noble that particular day, and they seen me up there.”
Dawn refused.
On December 15, England learned that his brother-in-
law had been cooperating with the police and he boiled
over. He could not call his brother-in-law directly as
Bull had blocked all calls coming from the prison. So
England called his father instead. He told his father that
he would “put some bullets in somebody’s head” and asked
his father to “talk with [Bull] man to man.” On December
27, he went further, asking his father to “go relay a
message to Robert” that if he “shows up to court, when
I walk outta prison in fifteen years, I’m ’onna fuckin’
murder his motherfuckin’ ass.” At trial, England’s father
would testify that he never relayed these threats to Bull.
In fact, Bull would not learn of England’s statements
until the government alerted him later in the investiga-
4 No. 06-2381
tion. Nonetheless, based on these threats and England’s
efforts to procure an alibi, on March 1, 2005, a grand jury
issued a superseding indictment, tacking on two counts of
witness tampering and one count of threatening a witness.
During his initial appearance for the felon-in-possession
charge, the court appointed England an attorney, Paul
Flynn. During England’s continued detention hearing on
February 8, Flynn advised the magistrate judge that
England wanted to represent himself, despite Flynn’s
advice to the contrary. Near the end of the hearing, the
magistrate questioned England extensively on his deci-
sion to represent himself. During the colloquy, England
stated that he had studied the law off and on for several
years and had helped with his prior criminal trials. He
said that he was familiar with the Federal Rules of
Evidence and Criminal Procedure and knew that the
judge would not assist him during the trial. Finally,
England said that he understood the evidence that the
government would offer and, despite the magistrate’s
opinion that he would be better served by a lawyer, he
wanted to represent himself. When Flynn expressed his
concern that England only wanted to represent himself
to move to a separate prison, the magistrate inquired
further and clarified that self-representation would not
impact his location. Satisfied by England’s responses
and convinced that the waiver was voluntary, the magis-
trate permitted England to proceed pro se with Flynn as
standby counsel.
The next week, on February 14, the district court held
another pre-trial proceeding to determine whether Eng-
land had knowingly and voluntarily waived his right to
counsel. The court expanded upon the magistrate’s ques-
tioning, including an inquiry into England’s personal
history; his education and family background; various
aspects of the trial such as the marshaling of evidence and
the function of opening statements; and England’s famil-
No. 06-2381 5
iarity with the charges and potential sentencing issues
that could arise. The district court also concluded that
England would be better off with an attorney and so
informed England. Following the questioning, England
remained convinced that he wanted to represent himself.
The extensive questioning satisfied the court that Eng-
land’s waiver was voluntary, and the court allowed
him to proceed pro se. After England claimed that he
was having problems with Flynn, the court appointed new
full-time counsel, Dennis Ryan. On December 29, 2005,
England again requested to represent himself and, after
determining that this was done knowingly and voluntarily,
the court complied, appointing Ryan as standby coun-
sel. The case went to trial on January 3, 2006. On January
6, the jury convicted England on all counts.
At sentencing, the court requested briefing on the
appropriate Guidelines section to apply to Count
IV—threatening physical force with the intent to prevent
the testimony of a witness. The government and the
presentence investigation report initially stated that
U.S.S.G. § 2A2.1(a)(1) was appropriate. This section
covers “Assault with Intent to Commit Murder; Attempted
Murder” and has a base offense level of 33. The court,
however, directed both parties to brief whether U.S.S.G.
§ 2.J1.2 might be more appropriate. This section covers
“Obstruction of Justice” and would result in an offense
level of 22.1 The court ultimately ruled that § 2A2.1 was
appropriate. In so doing, the court first looked to the
statutory index in Appendix A and located 18 U.S.C.
§ 1512(a). The Appendix indicated that § 1512(a) applied
to four separate Guidelines sections. The court reasoned
1
The base offense level set out in 2J1.2(a) is 14, with 8 levels
added by 2J1.2(b)(1)(A) “[i]f the offense involved causing or
threatening to cause physical injury to a person, or property
damage, in order to obstruct the administration of justice.”
6 No. 06-2381
that “Assault with Intent to Commit Murder; Attempted
Murder” was the most germane and stated that it had
to “apply the offense guidelines referenced in the statutory
index to the statute of conviction unless the case falls
within the limited stipulation exception,” which was
inapplicable. Although the court found it “somewhat
difficult in this case,” it applied § 2A2.1 and set the base
offense level at 33. The court declined to lower the sen-
tence under 18 U.S.C. § 3553(a) and sentenced England
to 262 months. This appeal followed.
II. Discussion
A. Waiver of Right to Counsel
England argues that he did not knowingly and volun-
tarily waive his right to counsel. The right to represent
oneself is “necessarily implied by the structure” of the
Sixth Amendment. Faretta v. California, 422 U.S. 806, 819
(1975). Although one can certainly question the wisdom
of self-representation, the right has a worthy pedigree; a
defendant’s freedom to raise his own voice in his defense
comes from the notion that some measure of individual
autonomy prevents a court from forcing an attorney upon
the defendant. Id. However lofty this ideal may be, courts
cannot rubber-stamp a defendant’s invocation of his
right to self-representation. The district court must make
the defendant “aware of the dangers and disadvantages
of self-representation, so that the record will establish
that ‘he knows what he is doing and his choice is made
with eyes open.’ ” Id. at 835 (quoting Adams v. United
States ex rel. McCann, 317 U.S. 269, 279 (1942)).
To that end, this Court has established a four-part
test that examines: (1) whether and to what extent the
district court conducted a formal hearing into the defen-
dant’s decision to represent himself; (2) other evidence in
No. 06-2381 7
the record that establishes whether the defendant under-
stood the dangers and disadvantages of self-representa-
tion; (3) the background and experience of the defendant;
and (4) the context of the defendant’s decision to waive
his right to counsel. United States v. Todd, 424 F.3d
525, 530 (7th Cir. 2005). This Court reviews the district
court’s finding of voluntary waiver for an abuse of discre-
tion, Todd, 424 F.3d at 530 n. 1, and we will not overturn
the district court’s decision “unless it would result in
fundamental unfairness impinging on due process rights,”
United States v. Irorere, 228 F.3d 816, 827 (7th Cir. 2000)
(quoting Maclin v. Freake, 650 F.2d 885, 886 (7th Cir.
1981)). Based on our review of the questions posed by the
magistrate and district court, we agree that England’s
waiver was knowing and voluntary.
As to the first factor, both the magistrate and the dis-
trict court adequately informed England of exactly what
he was waiving. A court does not have to give the defen-
dant a crash course in criminal law or trial procedure
before a defendant’s waiver of his right to counsel will be
voluntary. See Todd, 424 F.3d at 531. However, the
“failure to inform [a defendant] of the dangers and disad-
vantages of self-representation weighs against a finding
of a knowing or intelligent waiver.” United States v. Bell,
901 F.2d 574, 578 (7th Cir. 1990). On two occasions dur-
ing the pretrial proceedings—before the magistrate and
again before the district court—England received warn-
ings about the pitfalls of self-representation. The magis-
trate’s questioning tracked most, if not all, of the ques-
tions contained in the Federal Judicial Center’s Bench-
book for U.S. District Court Judges. The magistrate
specifically probed England’s familiarity with the Federal
Rules of Evidence and Criminal Procedure, the nature of
the charges against him, and the law more generally. In
addition, the magistrate informed him that he would be
better served by professional counsel and retained Flynn
8 No. 06-2381
as standby counsel. Although strict adherence to the
Benchbook is not required and rote adherence not desired,
United States v. Egwaoje, 335 F.3d 579, 585 (7th Cir.
2003), the magistrate’s questioning meaningfully touched
upon all the pitfalls of self-representation set out in the
Benchbook. Six days later, the district court questioned
England again and went even further, discussing matters
ranging from the purpose of the opening statement to his
reasons for forgoing representation, possible strategies
for cross-examination, and the government’s burden of
proof. The district court’s initial investigation—spanning
thirty-three pages of transcript—provides an impressive
illustration of a formal inquiry into a defendant’s waiver
of his right to counsel. These two wide-ranging discussions
of the effects of waiver nearly a year before trial were
clearly sufficient to inform England of the consequences
of his decision.
Turning to the second factor, other evidence indicates
that England understood the consequences of his waiver.
In analyzing this factor, this Court has credited state-
ments by the defendant regarding his own legal disability
and explanations by standby counsel of the pitfalls of self-
representation. United States v. Sandles, 23 F.3d 1121,
1128 (7th Cir. 1994). At the initial hearing before the
magistrate, England’s then-attorney said that he had
tried to talk England out of his decision, but England
would not listen. See United States v. Moya-Gomez, 860
F.2d 706, 735-36 (7th Cir. 1988) (crediting statements
by standby counsel in finding voluntary waiver). Before
the district court, England recognized his own legal
inability and said that he would do “about the same [as an
attorney], or I guess I’ll have to take my chances.” See
Moya-Gomez, 860 F.3d at 735 (crediting awareness of
legal disability in finding waiver). In addition, after his
own advocacy failed to gain an acquittal, England handed
the reins over to his standby counsel during sentencing,
No. 06-2381 9
saying that he did not know what he was doing. That
England recognized the risk of self-representation, after
being informed that he had made an unwise decision
by his acting attorney, provides other evidence that
England was aware of the consequences of waiver.
As to the third factor, England’s background and experi-
ence would also tend to support a finding of knowing
and voluntary waiver. This Court examines the back-
ground and experience of the defendant merely to gauge
whether he appreciated the gravity of his waiver, not
in the hopes of finding adequate legal training. See
Faretta, 422 U.S. at 835 (stating that “a defendant need
not himself have the skill and experience of a lawyer
in order competently and intelligently to choose self-
representation”); Egwaoje, 335 F.3d at 585-86. England’s
background indicated that he proceeded with his eyes
open. He had the equivalent of a high school education
and had thirty-six credits at a community college. A
doctor determined that he was competent to stand trial
and did not have any mental health issues that would
interfere with his ability to understand waiver. England
also had been in court several times before for his state
criminal charges. Granted this was England’s first time
in federal court and he had not represented himself in
his earlier proceedings. However, his prior involvement
with the criminal justice system apprised him of the
“seriousness of the charges brought against him.” Egwaoje,
335 F.3d at 586.
Finally, the context of England’s decision indicates
that it was knowing and voluntary. A waiver is likely
knowing and voluntary if the defendant gave it for strate-
gic reasons or after repeatedly rejecting the assistance of
counsel. Egwaoje, 335 F.3d at 586. England’s behavior at
trial caused unnecessary delay and duplicated the pro-
ceedings. On February 8 and 14, 2005, England said that
he wanted to represent himself and the court appointed
10 No. 06-2381
Flynn as stand-by counsel. In June, he complained of
medical problems but refused to cooperate with the
doctors. On July 1, 2005, the government moved to re-
place Flynn as stand-by counsel after England accused
Flynn of working for the prosecution. When the court
subsequently appointed Ryan as stand-by counsel, little
improved. England refused to cooperate or even meet
with Ryan. At one point, England even spat in Ryan’s face
in open court. England’s behavior at trial seemed calcu-
lated to delay and complicate the proceedings whenever
possible. Self-representation gave him the opportunity
to do this. In light of his behavior at trial, his decision to
forgo counsel was rooted in strategy and, accordingly,
this factor favors a finding of voluntary waiver.
For the foregoing reasons, England’s waiver of his right
to counsel was knowing and voluntary. Each factor
supports a finding of voluntariness; the evidence of
voluntariness is overwhelming. Accordingly, we affirm
the district court’s finding of waiver.
B. Sufficiency of the Evidence
England also argues that the evidence was insufficient
to support his conviction for witness tampering under 18
U.S.C. § 1512(a)(2)(A). A challenge based on the insuffi-
ciency of the evidence is a tall order, United States v.
Johnson, 903 F.2d 1084, 1086 (7th Cir. 1990), and the
standard governing such challenges is familiar: This
Court must affirm a conviction if “any rational trier of fact
could have found the essential elements of the crime
beyond a reasonable doubt.” Id. (citing United States v.
Troop, 890 F.2d 1393, 1397 (7th Cir. 1989)) (emphasis
omitted). In other words, an appeal does not deputize
this Court as the ultimate trier of fact.
Section 1512(a)(2)(A) punishes whoever “uses physical
force or the threat of physical force against any person . . .
No. 06-2381 11
with intent to . . . influence, delay, or prevent the testi-
mony of any person in an official proceeding.” 18
U.S.C. § 1512(a)(2)(A). To sustain a conviction under
§ 1512(a)(2)(A), the government must show that (1)
England used the threat of physical force; (2) with the
intent of curtailing his brother-in-law’s involvement in
his prosecution. On appeal, the issue before this Court
is a narrow one. England rightly does not deny ex-
pressing a desire to kill his brother-in-law for cooperat-
ing; the recorded conversations with his father over the
prison phone prove as much. Instead, England argues
that his statements to his father cannot support the
weight of his conviction because his father never re-
layed the threats to his brother-in-law. A threatening
statement that the intended recipient does not receive,
England argues, is not the “use of . . . [a] threat” for
purposes of § 1512(a)(2)(A). We disagree.
The statute itself does not define what it means to
“use[ ] . . . the threat of physical force.” However, the plain
meaning of the phrase does not require that the would-be
victim learn of the threat. The verb “use” in § 1512(a)(2) is
roughly akin to “employ” and means to “to put into
action or service.” WEBSTER’S THIRD INTERNATIONAL
DICTIONARY 2523 (1981); see also BLACK’S LAW DICTIONARY
1541 (6th ed. 1990) (defining “use” as “to convert to one’s
services”). And a “threat” is “an expression of intention to
inflict evil, injury, or damage on another.” WEBSTER’S
THIRD, supra, at 2382; BLACK’S, supra, at 1480 (defining
“threat” as a “communicated intent to inflict physical or
other harm on any person or on property”). When read
together, the statute prohibits expressing an intent to
inflict injury on another through physical force.2 An
2
“Putting an expression into action or service” means simply
“expressing.” See WEBSTER’S THIRD, supra, at 802 (defining
(continued...)
12 No. 06-2381
“expression” only requires that someone—not necessarily
the intended victim—perceive it. Adding a requirement
that the would-be victim himself actually perceive the
threat would graft on an additional “receipt” element that
the statute’s text does not require. See United States v.
Geisler, 143 F.3d 1070, 1071-72 (7th Cir. 1998) (rejecting
a “receipt” requirement under 18 U.S.C. § 876, which
prohibits depositing threatening communications in the
mail); see also Johnson, 903 F.2d at 1088 n.5 (stating
that under § 1512 “the focus is on the endeavor to bring
about the proscribed result, rather than on the success of
the endeavor”). We have not read an analogous require-
ment into other statutes prohibiting threats. See United
States v. Fuller, 387 F.3d 643, 646-47 (7th Cir. 2004) (18
U.S.C. § 871); Geisler, 143 F.3d at 1071-71 (18 U.S.C.
§ 876). Accordingly, we decline to do so under
§ 1512(a)(2)(A).
To avoid this result, England argues that, because the
threat never actually made it to his brother-in-law, his
statements did not have a “reasonable tendency to in-
timidate,” citing the standard articulated by this Court
in United States v. De Stefano, 476 F.2d 324 (7th Cir.
1973). However, this argument misreads De Stefano. The
relevant issue in that case was whether a none too
subtle “question” that the defendant posed to a witness in
an elevator—“Have you done any fishing lately?”—con-
stituted a threat under 18 U.S.C. § 1503. Id. at 327, 330.
The Court articulated an objective standard for evaluat-
ing whether a statement constitutes a threat, concluding
that the relevant inquiry is whether the statement has
2
(...continued)
“express” as “to represent in words” and “expression” as “an act,
process, or instance of representing, manifesting or conveying
in words or some other medium”).
No. 06-2381 13
a “reasonable tendency to intimidate.” Id. at 330. This
standard governs the contents of the threat; that is,
whether the defendant’s statement is actually “an expres-
sion of intention to inflict evil, injury, or damage.” This
objective reasonableness standard ensures that only “true
threats” go punished. See Watts v. United States, 394 U.S.
705, 707 (1969); United States v. Stewart, 411 F.3d 825,
828 (7th Cir. 2005) (stating that a “true threat” consists
of a statement made “in a context or under such circum-
stances wherein a reasonable person would foresee that
the statement would be interpreted by those to whom the
maker communicates a statement as” a threat (quoting
United States v. Khorrami, 895 F.2d 1186, 1191 (7th Cir.
1990)). It does not provide a yardstick for measuring the
likelihood that the statement would either reach or
subjectively affect the intended recipient.
Nonetheless, the fact that the intended target never
received the threat is still relevant under § 1512(a)(2)(A).
The proximity of the person who hears the threat to the
ultimate target of the threat is evidence of the speaker’s
“intent to . . . influence, delay, or prevent the testimony
of any person in an official proceeding.” Cf. United
States v. Spring, 305 F.3d 276, 281 (4th Cir. 2002) (stating
that “whether a threat was communicated to the victim
may affect whether the threat could reasonably be per-
ceived as an expression of genuine intent to inflict in-
jury”). As the link between an expression of an intent to
inflict injury and the participant in an official proceeding
grows more attenuated, so too does the inference that the
speaker intended to “influence, delay, or prevent” testi-
mony in an official proceeding. In this case, no such
attenuation exists. England could not reach his brother-in-
law because he had blocked calls from the prison phone.
His next best option was to convey the threats to his
father with instructions to pass them along. Although it
was not inevitable that his father would relay the threat,
14 No. 06-2381
it was not irrational to think that England intended to
influence his brother-in-law. Because rationality is the
relevant inquiry, sufficient evidence supported England’s
conviction under § 1512(a)(2)(A).
C. Reasonableness of England’s Sentence
Finally, England challenges the reasonableness of his
sentence. In calculating England’s sentence, the district
court first looked to the statutory index of the Guidelines
and found the Guidelines sections corresponding to 18
U.S.C. § 1512(a). Pursuant to this Court’s holding in
United States v. Lanas, 324 F.3d 894 (7th Cir. 2003), the
district court concluded that the most germane Guidelines
section was U.S.S.G. § 2A2.1, which punishes “Assault
with Intent to Commit Murder; Attempted Murder.” In so
doing, the court rejected England’s argument that it
should apply U.S.S.G. § 2J1.2, which governs “Obstruc-
tion of Justice,” but which the Guidelines do not link to
§ 1512(a). After grouping the four counts, the district
court calculated England’s sentencing range using the
base offense level for attempted murder, carrying an
offense level of 33. Finally, the court declined to vary the
sentence based on the factors listed in 18 U.S.C. § 3553(a).
The issue on appeal is straightforward: England threat-
ened to kill his brother yet the Sentencing Guidelines point
to a sentence for attempted murder. The difference
between the two is not negligible; attempted murder
carries a base offense level of 33 whereas threats of
physical injury to obstruct justice carry a base offense
level of 22. See U.S. SENTENCING GUIDELINES MANUAL
§§ 2A2.1, 2J1.2 (2005). England’s ultimate sentence was
262 months in prison, which, on appeal, England claims
is an unreasonable one. However, we do not find it neces-
sary to reach the reasonableness of England’s sentence.
The record on appeal lacks any indication that the district
court considered “the need to avoid unwarranted sentence
No. 06-2381 15
disparities among defendants with similar records who
have been found guilty of similar conduct.” 18 U.S.C.
§ 3553(a)(6). Because the record is inadequate to evaluate
the district court’s use of its discretion, we vacate Eng-
land’s sentence and remand for resentencing.
As a preliminary matter, the district court properly
declined to apply U.S.S.G. § 2J1.2. Prior to the 2000
Amendments to the Sentencing Guidelines, the district
court would have been free to choose a section not listed
in the statutory index in arriving at the appropriate base
offense level, “provided the charged conduct fit more
closely within the other guideline.” Lanas, 324 F.3d at
904. However, the 2000 Amendments deleted this “heart-
land” provision. Rather than tinker with the Guidelines
sections listed in the statutory index, the district court
must typically begin with “the offense guideline refer-
enced in the Statutory Index for the statute of conviction.”
See United States v. Gracia, 272 F.3d 866, 876 (7th Cir.
2001) (quoting U.S. SENTENCING GUIDELINES MANUAL
app. C. supp., amend. 591, at 32 (2000)); see also United
States v. Kosmel, 272 F.3d 501, 507 (7th Cir. 2001) (dis-
cussing effect of Amendment 591 on “heartland” analysis).
As long as the ultimate sentence is reasonable, the dis-
trict court can vary from the sentence identified in the
Guidelines based on its discretion under § 3553(a). See
United States v. Vitrano, 495 F.3d 387, 391-92 (7th Cir.
2007).
In denying the defendant’s request for a variance, the
district court did not actively consider 18 U.S.C.
§ 3553(a)(6) and the sentence disparity that may arise
from England’s sentence. In a post-Booker world, the
district court enjoys considerable discretion when impos-
ing a sentence. The present sentencing regime consists of
a nearly exhaustive set of rules set out in the Guidelines
that is moderated by judicial discretion and the reason-
ableness standard. Illustrative of this discretion are the
16 No. 06-2381
considerations set out in 18 U.S.C. § 3553(a); the result
dictated by the rigid calculus in the Guidelines must first
pass through the discretion conferred by these factors
before a sentence becomes final. See United States v.
Cunningham, 429 F.3d 673, 676 (2005).
In the case at hand, the court gave no indication that
it considered the disparity that may arise from England’s
sentence when it discussed a variance under § 3553(a)
even though the defendant pointed to the factual dissimi-
larity between his threat and the applicable Guidelines
section. Elsewhere, the court expressed its concern over
the potential injustice that might occur. The district court
stated that it found the use of the Guidelines section for
attempted murder “somewhat difficult in this case.” In
addition, the court requested briefing on whether to
apply § 2A2.1 or § 2J1.2 to England’s conduct. Despite
these concerns and the fact that the typical threat called
for a markedly different sentence, the district court did
not discuss the potential disparity as part of its § 3553(a)
analysis.
This discretion is all the more important where, as here,
it appears that the Sentencing Guidelines might have a
fairly pernicious scrivener’s error. The error results from
a recent amendment that Congress made to the witness
tampering statute. In 2002, Congress amended 18 U.S.C.
§ 1512 and created the current § 1512(a)(2). Before the
2002 changes, § 1512(a) only punished “[w]hoever kill[ed]
or attempt[ed] to kill another person, with intent to” affect
his cooperation in an official proceeding. 18 U.S.C.
§ 1512(a) (2000). At the time, the Sentencing Guidelines
statutory index mapped these offenses to four sections of
the Guidelines: first- and second-degree murder, voluntary
manslaughter, and § 2A1.1, which governs “Assault with
Intent to Commit Murder; Attempted Murder.” U.S.
SENTENCING GUIDELINES MANUAL app. A, at 459 (2001).
Given what § 1512(a) punished at the time, this made
No. 06-2381 17
sense. A person either “kill[ed]” the person involved in
an official proceeding (through first- or second-degree
murder or voluntary manslaughter) or “attempt[ed] to kill”
him. The statutory index punished accordingly.
Similarly, before the 2002 changes, § 1512(b) punished
“[w]hoever knowingly use[d] intimidation or physical force,
threaten[ed], or corruptly persuade[d] another person, . . .
or engage[d] in misleading conduct toward another person”
involved in an official proceeding. 18 U.S.C. § 1512(b)
(2000). The statutory index mapped these offenses to
three Guidelines sections: attempted murder, aggravated
assault, and § 2J1.2, which governs “Obstruction of Jus-
tice.” U.S. SENTENCING GUIDELINES MANUAL app. A, at 459
(2001). This also made sense. A defendant either used
physical force meaning to kill the witness but fell short
(committing attempted murder); used physical force
meaning only to harm the witness and succeeded (com-
mitting aggravated assault); or threatened, intimidated
or otherwise “corruptly persuaded” the witness (and
obstructing justice).
In 2002, Congress rearranged the witness tampering
statute and added a new § 1512(a)(2). Pub. L. No. 107-273,
at 1803-04 (2002). The bill was entitled “Increasing the
Penalty for Using Physical Force to Tamper with Wit-
nesses, Victims, or Informants” and it produced the
current § 1512. Id. Section 1512(a)(2) now punishes
“[w]hoever uses physical force or the threat of physical
force against any person, or attempts to do so.” 18 U.S.C.
§ 1512(a)(2) (2006). The 2002 amendment also added a ten-
year statutory maximum for threats under the modified
§ 1512(a)(2) and struck “physical force” from § 1512(b).
Pub. L. No. 107-273, at 1804. Section 1512(b) now only
punishes intimidation, threats, corrupt persuasion and
misleading conduct. 18 U.S.C. § 1512(b) (2006).
However, the relevant portions of the statutory index
to the Sentencing Guidelines remained exactly the same.
18 No. 06-2381
See U.S. SENTENCING GUIDELINES MANUAL app. A, at
525 (2005). As a result, the Guidelines sections that
correspond to § 1512(a) do not include “Obstruction of
Justice,” even though a threat of physical force against a
witness would appear to fall within this category. Simi-
larly, although no crime involving physical violence exists
in § 1512(b), the statutory index continues to reference
second-degree murder and aggravated assault. Most
notably, the statutory maximum for threats under
§ 1512(a) is ten years, but the minimum Guidelines
sentence for murder threats under § 1512(a) is over eleven
years. Compare U.S. SENTENCING GUIDELINES MANUAL
ch. 5, part A (2005) (setting minimum sentence for defen-
dant with no prior criminal history and base offense level
of 33 at 135-168 months in prison) with 18 U.S.C.
§ 1512(a)(3)(C) (2006) (providing as punishment “in the
case of the threat of use of physical force against any
person, imprisonment for not more than 10 years”).
All of this points to a potential scrivener’s error in the
statutory index. If a mistake exists, remedying it falls
within the purview of the Sentencing Commission, not
this Court. However, given the discretion that the dis-
trict court has in imposing a sentence, the potential
disparity that may arise from sentencing a threat as
though it was an attempted murder would be a basis for
a variance. Because the district court did not explain its
view on the potential disparity, we vacate England’s
sentence and remand for resentencing. However, we
express no opinion as to the appropriate sentence.
III. Conclusion
For the reason’s stated herein, we AFFIRM England’s
conviction and VACATE his sentence and REMAND for
resentencing.
No. 06-2381 19
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-7-07