United States v. Abbott

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4462
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CLARENCE BOBBY ABBOTT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (5:05-cr-00092-H)
Argued: February 1, 2007 Decided: March 8, 2007
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Jennifer Haynes Rose, Raleigh, North Carolina, for
Appellant. Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: George E. B. Holding, United
States Attorney, Anne M. Hayes, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After Clarence B. Abbott pleaded guilty to violating 18
U.S.C.A. § 876 (West 2006), the district court imposed an enhanced
sentence of sixty months imprisonment. On appeal, Abbott
challenges his sentence on several grounds. Principally, he argues
that the district court erred in applying a six-level enhancement
for his victim’s official status and in departing upward on the
ground that criminal history category VI under-represented the
seriousness of his prior crimes. For the reasons discussed below,
we affirm.
I.
In November of 2002, while an inmate at Caledonia Correctional
Institution in North Carolina, Abbott mailed a hand-written letter
to Elaine Marshall, the North Carolina Secretary of State. In the
letter, Abbott threatened to “blow [Secretary Marshall’s] damn head
off” and explicitly described how he would rape her and her
children. Abbott also wrote that Secretary Marshall “[didn’t]
deserve to uphold [sic] [her] office” and noted that although
Secretary Marshall was “supposed to be the secretary of state,” she
didn’t “do anything to help Theodis Beck [who is the Secretary for
the Department of Correction] with the prison overpopulation.”
Abbott signed the letter with the name and identification
number of another inmate at Caledonia Correctional Institution.
-2-
Investigators matched Abbott’s handwriting and identified him as
the author of the letter; Abbott then confessed to sending the
letter in order to get the other inmate in trouble.
The Government charged Abbott with knowingly causing the
United States Postal Service to deliver a communication containing
a threat to injure the person of another, in violation of 18
U.S.C.A. § 876 (West 2006). Abbott pleaded guilty without benefit
of a plea agreement.
A probation officer prepared a pre-sentence report (PSR). The
officer assigned Abbott a base offense level of 12, pursuant to
U.S.S.G. § 2A6.1 (2004). The PSR added a 6-level enhancement
because the victim was a public official and the offense was
motivated by the victim’s official status. See id. § 3A1.2(b).
The probation officer then subtracted three levels for Abbott’s
acceptance of responsibility. The total offense level was 15.
The officer also calculated Abbott’s criminal history,
assigning 21 criminal history points to Abbott because of his past
offenses and the timing of the instant offense. This total placed
Abbott in criminal history category VI, the highest category.
Based on Abbott’s criminal history category and offense level, the
Guidelines range was 41 - 51 months.
The PSR also noted that “the court may wish to consider an
upward departure . . . based on [Abbott’s] criminal history
category under-representing the seriousness of [his] criminal
-3-
history.” The report then admonished counsel to prepare to address
any potential departure issues at the sentencing hearing.
At sentencing, after hearing from the parties and Secretary
Marshall, the court departed upward sua sponte. Referring to §
4A1.3 of the Guidelines, the court found that Category VI “[did]
not reflect [Abbott’s] true criminal history category” and raised
Abbott’s offense level from 15 to 17. This upward departure
increased Abbott’s advisory Guidelines range from 41 - 51 months to
51 - 63 months. The district court then sentenced Abbott to 60
months imprisonment (the statutory maximum), three years of
supervised release, and a $2,500 fine.
II.
Abbott argues that the district court erred in applying the
six-level enhancement based on Secretary Marshall’s official
status. He also asserts that the district court violated the
Federal Rules of Criminal Procedure by failing to inform him of its
intent to depart upward. Additionally, he claims that the
-4-
departure itself was unwarranted.1 We consider each of these
contentions in turn.
A.
Abbott challenges the district court’s application of U.S.S.G.
§ 3A1.2(b), which authorizes a six-level enhancement for certain
offenses against government officials, when “the offense of
conviction was motivated by [the victim’s official] status.”
U.S.S.G. § 3A1.2 (2004). Abbott concedes that his victim was a
government official and that his offense is eligible for the
enhancement, but contests the court’s finding that he was motivated
by his victim’s official status. We review the sentencing court’s
factual findings for clear error. United States v. Green, 436 F.3d
449, 456 (4th Cir. 2006).
Abbott argues that he was not motivated by Secretary
Marshall’s official status because in sending the letter he only
intended to get the other inmate in trouble. Abbott misunderstands
1
Abbott raises two additional arguments that do not merit
extended discussion. First, he suggests that the judicial fact-
finding underpinning the enhancement violated Blakely v.
Washington, 542 U.S. 296 (2004). This claim fails because the
court sentenced Abbott after United States v. Booker, 543 U.S. 220(2005), held the Guidelines advisory; thus there is no Sixth
Amendment problem. Second, Abbott asserts that he suffered
“extreme prejudice” because the district court was “undu[ly]
influence[d]” by the victim’s identity and her “eloquent statements
during [her] oratory.” Brief of Appellant at 23-24. Abbott does
not cite any evidence to support this claim; accordingly, we reject
it.
-5-
the meaning of “motivate” as used in § 3A1.2. For a crime against
an official to be “motivated” by the official’s status, harming the
official because of that status need not be the offender’s sole or
even primary objective. See Cirilo-Munoz v. United States, 404
F.3d 527, 531 n.5 (1st Cir. 2005). A person who kidnaps and
ransoms an official cannot avoid the enhancement by claiming that
he only did it for the money. All that § 3A1.2 requires is that
the offender targeted the victim because of the victim’s official
status. See United States v. Garcia, 34 F.3d 6, 8-9, 13 (1st Cir.
1994) (holding crime motivated by police officer’s status when
defendant tried to run over officer in order to escape arrest).
In this case, Abbott sent Secretary Marshall the letter
because she was the North Carolina Secretary of State. Abbott
identified Secretary Marshall by her title and referred to her
public responsibilities. See J.A. 31 (“[Y]ou [are] supposed to be
the secretary of state, and you don’t do anything to help Theodis
Beck with the prison overpopulation.”). Further, Secretary
Marshall’s status was critical to Abbott’s plan -- a letter to a
prominent official was more likely to trigger an investigation that
would make trouble for the other inmate. The district court did
not clearly err in finding that Abbott’s offense was “motivated by”
Secretary Marshall’s official status.
-6-
B.
Abbott next asserts that the district court violated Rule
32(h) of the Federal Rules of Criminal Procedure by failing to
notify him of its intent to depart upward pursuant to § 4A1.3 of
the Guidelines. We review for plain error because Abbott did not
raise this objection before the district court. See United States
v. Bellamy, 264 F.3d 448, 455 (4th Cir. 2001) (applying plain error
analysis to claim of lack of notice of grounds for upward
departure); United States v. Spring, 305 F.3d 276, 281 (4th Cir.
2002) (same). Under the plain error standard, we reverse only if
(1) there is error, (2) that is plain, (3) that “affects
substantial rights,” and (4) that “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Johnson
v. United States, 520 U.S. 421, 467 (1997) (quoting United States
v. Olano, 507 U.S. 725, 732 (1993)).
Rule 32(h) provides that “[b]efore the court may depart from
the applicable sentencing range on a ground not identified for
departure . . . in the presentence report . . . the court must give
the parties reasonable notice that it is contemplating such a
departure.” Fed. R. Crim. Pro. 32(h) (emphasis added). In this
case, the district court departed upward pursuant to § 4A1.3
because it found that Abbott’s criminal history category under-
represented his true criminal history. The court did not violate
Rule 32(h) because the PSR identified the very ground for departure
-7-
upon which the court relied: “Based on the findings of the
presentence report, the court may wish to consider an upward
departure from the applicable criminal history category, pursuant
to 4A1.3 (Adequacy of Criminal History), based on [Abbott’s]
criminal history category under-representing the seriousness of the
defendant’s criminal history.”
Abbott complains that if he had received more notice, his
attorney would have had “adequate time” to investigate Abbott’s
criminal history and mental health record. Brief of Appellant at
12. However, Abbott’s counsel could have investigated such matters
between receipt of the PSR and the sentencing hearing. Abbott
received all the notice required by Rule 32(h). Thus, the district
court did not err, let alone plainly err, in failing to comply with
Rule 32(h).2
2
Although not mentioned in his brief, at oral argument Abbott
seemed to suggest that the district court might have violated Rule
32(I). That rule requires sentencing judges to “allow the parties’
attorneys to comment on the probation officer’s determinations and
other matters relating to an appropriate sentence.” Fed. R. Crim.
Pro. 32(i)(1)(C) (2006). We have recognized that the opportunity
to comment may be effectively denied if a court does not prompt
counsel to address a potential ground for departure identified in
the PSR, then departs upward on that ground, and never affords
counsel an opportunity to address the considerations that motivated
its departure. Spring, 305 F.3d at 279-80, 282 (interpreting a
predecessor to Rule 32(i)(1)(C)). In this case, however, the
district court clearly afforded Abbott an adequate opportunity to
comment. During the sentencing hearing, the court summarized
Abbott’s extensive criminal history and then asked Abbott’s
counsel, “What should I do and why[?]” Further, after announcing
the upward departure and sentence, the court solicited further
comment from Abbott’s counsel. Abbott took this opportunity to
correct the court’s announcement of a sentence above the statutory
maximum, but did not argue that an upward departure was
-8-
C.
Finally, Abbott challenges the upward departure itself. After
Booker, “[w]hen we review a sentence outside the advisory guideline
range-whether as a product of a departure or a variance-we consider
whether the district 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 guideline range.” United States
v. Perez-Pena, 453 F.3d 236, 241 (4th Cir. 2006) (citing United
States v. Moreland, 437 F.3d 424, 433-34 (4th Cir 2006); United
States v. Hairston, 96 F.3d 102, 106 (4th Cir. 1996)).
Under the Guidelines, an upward departure “may be warranted”
if “reliable information indicates that the defendant’s criminal
history category substantially under-represents the seriousness of
the defendant’s criminal history or the likelihood that the
defendant will commit other crimes.” U.S.S.G. § 4A1.3(a)(1)
(2004). A departure from criminal history category VI may be
appropriate “[i]n the case of an egregious, serious criminal record
in which even the guideline range for Criminal History Category VI
is not adequate to reflect the seriousness of the defendant’s
criminal history.” Id. application note 2(B).
The question here is whether the district court was reasonable
in concluding that Category VI substantially under-represented the
inappropriate. Having been given two chances to address how his
criminal history should affect his sentence, Abbott cannot prevail
on a claim that the court violated Rule 32(i) by denying him an
opportunity to comment.
-9-
“seriousness” of Abbott’s criminal history. Clearly, Category VI
does not fully reflect the number of crimes in Abbott’s past. He
had 21 criminal history points, 8 more than the 13 required for
Category VI. See U.S.S.G. ch. 5, pt. A (2004). Consequently,
almost forty percent of Abbott’s criminal history points are not
accounted for by his Category VI placement. Further, the PSR did
not assign Abbott any criminal history points for some of the
sentences resulting from his 34 convictions, either because of
their age or because they were related to sentences for which he
did receive criminal history points.
Moreover, Abbott has received two sentences “of substantially
more than one year [that were] imposed as a result of independent
crimes committed on different occasions.” U.S.S.G. §
4A1.3(a)(2)(B) (2004). The Guidelines suggest that such sentences
may be reliable evidence that Category VI under-represents the
seriousness of a defendant’s history. Id. This under-
representation occurs because the Guidelines assign the same number
of points to all sentences of over a year, regardless of how long
they are or how many convictions they punish. See U.S.S.G. § 4A1.1
(2004).
Furthermore, many of Abbott’s crimes are serious. He has 16
felony convictions for breaking and entering, 4 for larceny, and 7
for breaking, entering, and larceny. Although Abbott attempts to
minimize these crimes by characterizing them as “non-violent,”
-10-
Brief of Appellant at 16, the offenses involve significant harm to
property and substantial risk of personal injury to others. In
addition, while in prison Abbott has been disciplined for sending
a graphic threatening letter, threatening a staff member (3 times),
assaulting a staff member (3 times), and damage to state property
(2 times). The letter Abbott sent to Secretary Marshall seems part
of this pattern of threatening conduct.
In light of the nature and extent of Abbott’s history, the
sentencing court’s decision to impose an upward departure was
reasonable, and the extent of the upward departure, which led to a
sentence only nine months longer the top of the original Guidelines
range, was similarly reasonable.
III.
For all the reasons set forth within, the judgment of the
district court is
AFFIRMED.
-11-