United States v. Patrick McMorrow ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2411
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of North Dakota.
Patrick Timothy McMorrow, *
*
Appellant. *
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Submitted: November 16, 2006
Filed: December 27, 2006
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Before RILEY, HANSEN, and SMITH, Circuit Judges.
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RILEY, Circuit Judge.
Patrick Timothy McMorrow (McMorrow) was convicted of mailing threatening
communications, in violation of 18 U.S.C. § 876(c); extortion, in violation of 18
U.S.C. § 876(b); and threatening the use of a weapon of mass destruction, in violation
of 18 U.S.C. § 2332a(a)(2). The district court1 sentenced McMorrow to 140 months’
imprisonment and 3 years’ supervised release. On appeal, we affirmed his conviction,
but reversed and remanded for resentencing pursuant to United States v. Booker, 543
U.S. 220 (2005). See United States v. McMorrow, 434 F.3d 1116, 1118 (8th Cir.
1
The Honorable Daniel L. Hovland, Chief Judge, United States District Court
for the District of North Dakota.
2006) (McMorrow I). On remand, the district court sentenced McMorrow to 360
months’ imprisonment and 3 years’ supervised release. McMorrow appeals. Finding
no error, we affirm.
I. BACKGROUND
McMorrow mailed several letters from the North Dakota State Penitentiary
(penitentiary) in late August 2003, less than three months before McMorrow’s
scheduled release. In letters to the federal district court in Bismarck, North Dakota;
the city of Fargo, North Dakota; the Governor of North Dakota; and the President of
the United States, McMorrow proclaimed “a formal declaration of war on the city of
Fargo” based on alleged violations of his constitutional rights. McMorrow demanded
reimbursement for these alleged violations, additional training for Fargo police
officers, and a review board to address complaints with the Fargo Police Department.
McMorrow vowed to wage war against the city of Fargo if his demands were not met
by a date coinciding with his scheduled release. He threatened violence and the use
of bombs, requesting citizens of Fargo “move out or take there [sic] chances.” In
McMorrow’s letter to the Governor, he asked any prisoners of war be housed at the
penitentiary because McMorrow did “not have the capabilities to hold them on [his]
own” and the use of such facilities “would cut down on the number of deaths since
[he] would be able to allow some individuals to surrender.” In his letters to both the
Governor and the President, McMorrow advised all state and federal employees be
moved from Fargo before commencement of the war given he was unable to guarantee
their safety.
During an interview with federal agents, McMorrow admitted sending the
letters, identified how he would obtain and build explosives, and advised he would
make smaller-sized bombs for ease of delivery and would store the bombs outside the
Fargo area. He also referred to military manuals he had received during his United
States Marine Corps service and noted his intent to use the Internet to aid in the
manufacture of nitroglycerin. McMorrow identified his targets as anyone within the
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city of Fargo, noting his own family could be killed and declaring he was willing to
die if necessary.
A jury later convicted McMorrow of mailing threatening communications,
extortion, and threatening the use of a weapon of mass destruction. Following
McMorrow’s convictions, a presentence investigation report (PSR) was prepared,
which indicated McMorrow was a “career offender” under U.S.S.G. § 4B1.1. Based
on a total offense level of 37 and criminal history category VI, the resulting
Guidelines range was 360 months’ to life imprisonment. Neither McMorrow nor the
government objected to this range. The district court then granted McMorrow’s
motion for downward departure, reasoning: (1) McMorrow suffered from psychiatric
problems and personality disorders, which hindered his ability to make reasonable
decisions; (2) McMorrow lacked serious intent to harm anyone; (3) few people took
McMorrow’s letters seriously; (4) there was uncertainty pending Booker regarding the
constitutionality of the Guidelines; and (5) a thirty-year sentence was unreasonable.
Accordingly, the district court sentenced McMorrow to 140 months’ imprisonment
and 3 years’ supervised release.2
In McMorrow I, we affirmed McMorrow’s convictions, but found Booker
entitled him to a remand for resentencing. McMorrow, 434 F.3d at 1118. In doing
so, we reviewed the district court’s decision to depart downward and concluded none
of the district court’s stated reasons provided a permissible ground for departure. Id.
at 1118-20. Because we remanded in light of Booker, we declined to address the
government’s argument on the reasonableness of McMorrow’s sentence under 18
U.S.C. § 3553(a). Id. at 1120.
2
The district court sentenced McMorrow to concurrent sentences of 120 months
for mailing threatening communications, 140 months for extortion, and 140 months
for threatening the use of a weapon of mass destruction.
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On remand, in the absence of any objections to the PSR, the district court again
adopted the PSR’s factual findings and advisory Guidelines sentencing range
calculation of 360 months’ to life imprisonment. During the resentencing hearing, the
district court recognized its discretion to depart downward and to impose a non-
Guidelines sentence. The district court noted its reasons previously given in support
of its downward departures were wholly rejected by this court on appeal, a holding the
district court felt “bound to adhere to.” After noting its consideration of the factors
set forth in § 3553(a) and finding no extraordinary circumstances to justify a variance,
the district court sentenced McMorrow to 360 months’ imprisonment and 3 years’
supervised release.3 The district court’s sentencing memorandum, issued the day after
McMorrow’s resentencing hearing, also discussed the court’s reasons for imposing
the 360-month sentence. McMorrow now appeals, arguing his sentence is
unreasonable.
II. DISCUSSION
“We review for abuse of discretion the reasonableness of the sentence imposed
by the district court.” United States v. Walker, 439 F.3d 890, 892 (8th Cir. 2006). A
sentence may be unreasonable if the district court failed to consider a relevant factor
that should have received significant weight, gave significant weight to an improper
or irrelevant factor, or considered only appropriate factors but nevertheless erred by
imposing a sentence outside the limited range of choice dictated by the facts of the
case. United States v. Haack, 403 F.3d 997, 1004 (8th Cir.), cert. denied, 126 S. Ct.
276 (2005).
McMorrow first contends the district court erred by imposing a sentence greater
than necessary to satisfy the purposes of § 3553(a)(2). We disagree. McMorrow, a
3
The district court resentenced McMorrow to concurrent sentences of 120
months for mailing threatening communications, 240 months for extortion, and 360
months for threatening the use of a weapon of mass destruction.
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career offender, has an extensive criminal history, which includes shoplifting, arson,
disorderly conduct, terrorizing another human being, forcible rape, multiple violations
of protection orders, and resisting arrest. McMorrow also has been arrested for
driving under the influence, theft, criminal coercion, domestic violence assault, and
additional protection order violations. Our review of McMorrow’s criminal
background reflects McMorrow’s acknowledgment he is “resistant to authority” and
indicates previous attempts to deter McMorrow from future criminal conduct have
proven unsuccessful. In his most recent offense, McMorrow repeatedly threatened the
city of Fargo and government officials with violence and the use of bombs if his
demands were not met on or before a date coinciding with his release from prison.
While McMorrow argues his incarceration made it impossible for him to carry out the
threats, his release from prison was a mere two to three months away. During
McMorrow’s interview with federal agents, McMorrow fully admitted making the
threats, explained what weapons would be used and how he would carry out the
attack, and declared he was willing to die if necessary. On these facts, we cannot say
the district court abused its discretion by imposing a 360-month sentence.
McMorrow next argues the district court erred by failing either to consider the
§ 3553(a) factors or to state the reasons for its imposition of the sentence with
sufficient particularity to enable this court to perform a meaningful reasonableness
review. Again, we disagree. At the time of sentencing, the district court must state
in open court the reasons for its imposition of the sentence. 18 U.S.C. § 3553(c). The
district court, however, is not required to rehearse categorically each of the § 3553(a)
factors, so long as it is clear from the record the factors were considered. United
States v. Dieken, 432 F.3d 906, 909 (8th Cir.), cert. denied, 127 S. Ct. 163 (2006).
During the resentencing hearing, the district court noted its consideration of the
§ 3553(a) factors and further indicated a sentencing memorandum detailing the court’s
reasoning would follow shortly thereafter. The sentencing memorandum set forth the
§ 3553(a) factors, discussed the court’s reasons for granting a downward departure in
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McMorrow’s first sentencing, and determined those reasons could properly be
classified as the nature and circumstances of the offense, the history and
characteristics of the defendant, and the seriousness of the offense. Recognizing this
court’s previous rejection of those reasons in concluding they were not entitled to
significant weight or were not supported by the evidence, the district court
acknowledged its obligation to follow McMorrow I.
The district court then stated it was adopting and incorporating by reference the
arguments set forth in the government’s sentencing memorandum as additional
support for the 360-month sentence. The government’s sentencing memorandum, in
turn, devoted significant attention to the § 3553(a) factors, discussing in detail the
nature and circumstances of McMorrow’s offense, the seriousness of the offense
conduct, the need to protect the public, McMorrow’s violent criminal history, and the
need to avoid unwarranted sentencing disparities among similarly-situated defendants.
Our review of the record convinces us the district court carefully considered the
§ 3553(a) factors and created a clear record to allow us to conduct a meaningful
reasonableness review. See, e.g., Walker, 439 F.3d at 892 (holding the district court’s
acknowledgment that it was required to, and in fact did, consider the § 3553(a) factors
was sufficient, despite the district court’s failure to discuss each factor in detail). The
district court’s expressed reasoning is thorough and well-reasoned.
Contrary to McMorrow’s assertions, we do not agree the district court believed
McMorrow I required the district court to sentence McMorrow within the advisory
sentencing Guidelines range. McMorrow I only rejected the district court’s stated
reasons for a downward departure; it did not, however, prohibit the district court from
granting a downward variance if the court believed such a variance was warranted
based on its consideration of the § 3553(a) factors. In sentencing McMorrow, the
district court properly followed Haack’s three-step procedure by (1) determining the
appropriate Guidelines range, (2) deciding whether a traditional departure was
warranted, and (3) then considering the § 3553(a) factors in deciding whether to
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impose a non-Guidelines sentence. See Haack, 403 F.3d at 1002-03. While the
district court expressed some reservations about the harshness of McMorrow’s 360-
month sentence, the court ultimately concluded the sentence was reasonable and
McMorrow was not entitled to a departure or a variance. We agree, and thus find
(1) no abuse of discretion by the district court, and (2) the sentence is not
unreasonable.
III. CONCLUSION
For the foregoing reasons, we affirm.
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