United States v. Todd Spencer , 848 F.3d 324 ( 2017 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4026
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)
Argued: December 8, 2016 Decided: February 9, 2017
Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Shedd and Judge Duncan joined.
ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Richard Daniel Cooke,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender,
Rodolfo Cejas, II, Assistant Federal Public Defender, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for
Appellant. Dana J. Boente, United States Attorney, Alexandria,
Virginia, William D. Muhr, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for
Appellee.
WILKINSON, Circuit Judge:
Todd Allen Spencer pleaded guilty to mailing a threatening
letter in violation of 18 U.S.C. § 876(c). The district court
deviated upward from the advisory Guidelines range to account
for the threat’s effect on the victim and imposed a 45-month
sentence.
Spencer now contends that his sentence was procedurally and
substantively unreasonable. For the reasons that follow, we
affirm.
I.
On September 12, 2013, the clerk’s office of the federal
courthouse in Norfolk, Virginia received a letter from an inmate
at Chesapeake City Jail identified as “T.A. Spencer.” The letter
was covered in white powder and read, in part, as follows:
You never know when it can happen! The very letter you
hold may indeed be the last you hold. This letter may
contain on it what takes your last breath. Who knows?
Only time will tell. Good luck to you.
. . . .
Should you run? Should you stay? Who do you call to
make it all go away? Are you already infected with the
pain? What do you do? Is there anything to gain? Only
time will tell.
J.A. 14-15. The clerk who opened the letter was “disconcerted
and afraid”; at the instruction of the U.S. Marshals she locked
herself alone — with the letter — in the mailroom until
inspectors arrived. J.A. 15. In the course of the investigation,
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one inspector visited Spencer at Chesapeake City Jail, where he
admitted to sending the letter and explained that the powder was
dried toothpaste. He had included the powder “to enhance the
effect of the letter in order to put fear into the reader that
the white powdery substance was some type of poison.” Id.
On October 2, 2014, Spencer pleaded guilty to sending a
threatening communication in violation of § 876(c). The
probation officer prepared a presentence report (“PSR”), which
recommended a base offense level of 12. The probation officer
then applied a six-level enhancement because, in his view, the
offense involved “conduct evidencing intent to carry out [the]
threat” contained in the letter. U.S. SENTENCING GUIDELINES MANUAL
§ 2A6.1(b)(1) (U.S. SENTENCING COMM’N 2016). After factoring in
Spencer’s acceptance of responsibility and criminal history
category, the PSR yielded an advisory Guidelines range of 37 to
46 months.
At the sentencing hearing on January 13, 2015, the district
court overruled Spencer’s objection to the six-level enhancement
and sentenced him to 46 months’ imprisonment. The district court
expressed concern about the “devastat[ing]” impact on the
victim: “One can’t forget it. It’s like war. . . . You can’t
forget what people do when they face the ultimate.” J.A. 46, 59.
Given the “very, very serious” nature of the offense, the court
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observed that the Guidelines were “very kind” and therefore
imposed a sentence at the top of the advisory range. J.A. 60-61.
On appeal, this court found that the district court erred
in applying the six-level enhancement. United States v. Spencer,
628 F. App’x 867 (4th Cir. 2015). The court determined that
Spencer’s threat did not qualify for the § 2A6.1(b)(1) increase
because the use of harmless toothpaste did not suggest an intent
to carry out the threat to kill or injure the clerk.
Accordingly, the panel vacated and remanded for resentencing
without application of the enhancement.
On January 12, 2016, the district court noted at the outset
of the resentencing hearing that, in light of the Fourth
Circuit’s mandate, it would not apply any additional
enhancements. But the court explained that a sentence in the
range of 21 to 27 months would be “totally inadequate” based on
the sentencing factors in 18 U.S.C. § 3553(a). J.A. 118. The
district court reiterated its concern about the need to “afford
adequate deterrence” to similarly situated offenders. J.A. 127.
The court also underscored the importance of providing “just
punishment” that reflected the serious nature of the offense:
“The lady who got that letter thought it was anthrax, and she
thought somebody had sentenced her to death.” J.A. 126-27.
Taking these “factors into consideration and the fact that
[Spencer] ha[s] successfully appealed the prior sentence,” the
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court decided to “upwardly depart” and imposed a sentence of 45
months. J.A. 128. The district court reasoned that the sentence
was “fair under the circumstances” and one that it “would have
given him if there had never been any . . . [Guidelines.]” J.A.
133. Although the court maintained that it was “strictly an
upward departure,” id., on the Statement of Reasons for the
judgment it checked the box for a variance sentence and cited
the § 3553(a) factors as the basis for deviating from the
Guidelines, J.A. 244-45.
II.
We review a sentence for both procedural and substantive
reasonableness. See Gall v. United States, 552 U.S. 38, 51
(2007). We first ensure that the district court committed no
significant procedural error, such as “improperly calculating[]
the Guidelines range, . . . selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence.” Id. If the sentence is procedurally sound, we
then consider its substantive reasonableness under a
“deferential abuse-of-discretion standard.” Id. at 52. While a
district court’s explanation for the sentence must “support the
degree of the variance,” id. at 50, it need not find
“extraordinary circumstances” to justify a deviation from the
Guidelines, id. at 47. Rather, because district courts are “in a
superior position to find facts and judge their import,” all
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sentencing decisions — “whether inside, just outside, or
significantly outside the Guidelines range” — are entitled to
“due deference.” Id. at 41, 51.
With these principles in mind, we turn to Spencer’s
procedural and substantive challenges to the sentence.
A.
Spencer first contends that the district court erred by
failing to provide advance notice of its intention to depart
from the advisory Guidelines range. See Fed. R. Crim. P. 32(h)
(requiring a district court to provide “reasonable notice” that
it is considering a departure from the Guidelines “on a ground
not identified for departure either in the presentence report or
in a party’s prehearing submission”). Spencer notes that the
district court repeatedly characterized the sentence as an
upward “departure,” see J.A. 128, 133-35, yet never advised the
parties that it was contemplating such an action. Consequently,
he claims that he was deprived of the opportunity to challenge
the increased sentence. There are several difficulties with this
argument, which we address in turn.
For starters, the boundary between departures and variances
is often murky, and this case especially confounds the
distinction. Because the circumstances surrounding threats vary
substantially, § 2A6.1 gives district courts latitude to depart
from the Guidelines. See § 2A6.1 cmt. n.4(A). The provision does
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not set forth a comprehensive departure framework for threats
cases, but instead invites district courts to apply other
generic departures as necessary. Id. (referencing additional
departures in Chapter Five). Given the dearth of guidance for
capturing the seriousness of such a factually variable offense,
the considerations underlying a departure in a threats case
converge with those underlying a variance to an unusual degree.
Nonetheless, a measure of formality must mark the
sentencing procedure, and the district court was simply too
casual about the course it intended to undertake. At the
resentencing hearing the court repeatedly stated that it would
“upwardly depart,” see J.A. 128, 133-35, but its reasoning —
resting on the § 3553(a) factors rather than a departure
provision — supported a variance, see J.A. 126-28. Likewise, on
the Statement of Reasons for the judgment the court checked the
box for a variance sentence and cited various § 3553(a) factors
as the basis for deviating from the Guidelines. J.A. 244-45.
While it may be true that “the practical effects of applying
either a departure or variance are the same,” see United States
v. Diosdado-Star, 630 F.3d 359, 365 (4th Cir. 2011), the court’s
colloquial migration between the two concepts was at a minimum
imprecise.
We conclude, nonetheless, that Spencer cannot establish
that any lack of notice affected his substantial rights. Because
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Spencer did not raise the issue in the district court, we review
for plain error. Fed. R. Crim. P. 52(b); Henderson v. United
States, 133 S. Ct. 1121, 1126-27 (2013). Spencer thus bears the
burden of showing “that, but for [the error claimed], the result
of the proceeding would have been different.” United States v.
Dominguez Benitez, 542 U.S. 74, 82 (2004).
Spencer summarily asserts that he was prejudiced by the
lack of formal notice, but the district court repeatedly
telegraphed that it might deviate from the Guidelines.
Throughout the original sentencing hearing, the letter’s effect
on the victim was front and center. See J.A. 42–43, 46–47, 52,
54, 58–59. And it was no secret that the court was troubled by
the “very, very serious” nature of the offense: It stressed the
need to provide “just punishment” and “adequate deterrence” and
remarked that the initial Guidelines range was “very kind to
[Spencer].” J.A. 59-61. Accordingly, when the removal of the
§ 2A6.1(b)(1) enhancement resulted in an even lower Guidelines
range, Spencer had every reason to believe that the court might
adopt an above-Guidelines sentence. Indeed, at resentencing the
court stated that the original sentence was “fair and fit,” J.A.
127, and that it would have imposed the same sentence even if
the Guidelines had not applied, J.A. 133. Spencer thus had
numerous opportunities to address the district court’s concerns
about the letter’s effect upon the victim and “the record does
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not indicate that a statement announcing th[e] possibility [of
an increased sentence] would have changed the parties’
presentations in any material way.” Irizarry v. United States,
553 U.S. 708, 715 (2008).
B.
Spencer also asserts that his 45-month sentence is
substantively unreasonable. His substantive (or hybrid
procedural / substantive) argument is essentially that the
sentence was too much. In particular, he insists that the
severity of the sentence rested on improper sentencing factors
and unfounded factual findings. For the reasons that follow, we
disagree.
As an initial matter, we simply do not find that the
district court rested its sentence on improper grounds. Pursuant
to our mandate, the court made clear that it was not applying
any additional enhancements at resentencing. Rather, the
district court based its sentence on the intended effect on the
victim, explaining that the reduced Guidelines range was
“totally inadequate” given the serious nature of a threat
accompanied by ostensible poison. J.A. 118. In other words, the
court tailored its sentence in light of traditional § 3553(a)
sentencing factors such as deterrence and punishment. See J.A.
127. This sort of particularized assessment is the hallmark of
individualized sentencing, see Gall, 552 U.S. at 50, and we see
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no reason to question the district court’s decision to deviate
from the Guidelines on this basis.
The inferences drawn by the district court here lay within
the bounds of its discretion. The trial court, to be sure, used
some vivid rhetoric in explaining the sentence, surmising that
the victim “thought somebody had sentenced her to death,” J.A.
127, and “it’s something one can’t forget. . . . It’s like war,”
J.A. 59. But these expressions were hardly divorced from the
facts of Spencer’s case. After all, Spencer had sent a letter
that threatened death. To compound the victim’s horror, he
included with the letter dried toothpaste that resembled
anthrax. The U.S. Marshals took the threat seriously and ordered
the victim to lock herself in a confined space. And she waited
alone with the potential toxin until the authorities could
determine its true nature. From these facts, the rest are
reasonable inferences that could be drawn by anyone confronted
with a “prank” that was distinctly unfunny.
We are mindful that we have charged district courts to
explain the basis for their sentence. See United States v.
Carter, 564 F.3d 325, 328-29 (4th Cir. 2009) (instructing that
the district court must “justify [its] sentence with an
individualized rationale”); see also Gall, 552 U.S. at 50
(advising that the judge “must adequately explain the chosen
sentence to allow for meaningful appellate review and to promote
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the perception of fair sentencing”). But there is also a balance
to be struck. We want trial judges to offer a “rationale
tailored to the particular case at hand,” Carter, 564 F.3d at
330, but we also take seriously the Supreme Court’s injunction
that those same sentencing rationales are in turn entitled to
“due deference” on appeal, Gall, 552 U.S. at 51. The district
court’s expressions of dismay at Spencer’s actions were thus not
impermissible so long as they bore upon the § 3553(a) factors of
deterrence and punishment. Indeed, many upward departures or
variances will be accompanied by some expression of concern that
the Guidelines do not reflect the full seriousness of the
offense.
Spencer understandably objects to the increased sentence.
But he acknowledged that the court “has the right to impose a
sentence it deems sufficient but not greater than necessary.”
J.A. 120. Although Spencer contends that there was no
substantial disruption of government functions here, see
U.S.S.G. § 2A6.1(b)(4)(A), that did not deprive the district
court of the right to apply the § 3553(a) factors, specifically,
in this age of unbalanced acts, the need to deter depredations
of this kind in the future. It was not error therefore for the
district court to recognize that government’s functioning
depends on the indispensable efforts of an underappreciated
workforce and that no employee deserves to endure what Spencer
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indisputably intended for the recipient of the letter to endure
here. The district court could reasonably believe that the
effect on the victim was no small matter and, indeed, if there
be such a thing, that this was no ordinary threat. We hold that
its sentence was substantively reasonable. *
III.
The judgment of the district court is accordingly
AFFIRMED.
* We decline to draw an inference of actual vindictiveness
from the district court’s acknowledgment on remand that Spencer
“successfully appealed the prior sentence.” J.A. 128. To be
sure, “[d]ue process requires that vindictiveness play no role
in resentencing the defendant.” United States v. Olivares, 292
F.3d 196, 198 (4th Cir. 2002). But this passing reference to an
appeal does not allow us to infer actual vindictiveness on the
part of the trial court, particularly where the district court’s
concern from the beginning rested on non-vindictive factors such
as the serious nature of this offense and the need to deter
others like it in the future.
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