United States v. Carolyn Kay Poff

926 F.2d 588, 1991 U.S. App. LEXIS 2392, 1991 WL 17045
CourtCourt of Appeals for the Seventh Circuit
DecidedFebruary 14, 1991
Docket89-3017
StatusPublished
Cited by175 cases

This text of 926 F.2d 588 (United States v. Carolyn Kay Poff) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Carolyn Kay Poff, 926 F.2d 588, 1991 U.S. App. LEXIS 2392, 1991 WL 17045 (7th Cir. 1991).

Opinions

FLAUM, Circuit Judge,

with whom BAUER, Chief Judge, and CUMMINGS, WOOD, Jr., RIPPLE, and KANNE, Circuit Judges, join.

Can a “crime of violence” also be a “nonviolent offense”? We heard this case en banc to answer this seemingly straightforward question. The career offender provision of the Sentencing Guidelines defines a “crime of violence” as, inter alia, any offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 4B1.2(l)(i); see also 18 U.S.C. § 16 (progenitor of the Guideline definition). The Guidelines also authorize judges to depart downward from an otherwise applicable sentencing range if a defendant committed “a non-violent offense while suffering from significantly reduced mental capacity,” U.S.S.G. § 5K2.13, but don’t define “non-violent offense.” We must determine whether that term can encompass a “crime of violence” as defined in § 4B1.2.

These two provisions are at issue because the appellant has a history of both [590]*590mental illness and making threats. She is a forty-four year-old woman convicted for writing six threatening letters to President Reagan in 1988. See 18 U.S.C. § 871. Her father, now deceased, sexually abused her until she was twenty, and she has since been in and out of psychiatric institutions as an adult. Among the manifestations of her mental illness is her penchant for threatening public officials at, she believes, the behest of her dead father. Before she began writing to President Reagan, she had been convicted of making two bomb threats, of threatening a county prosecutor, and of arson for setting a hotel room on fire. Her probation was revoked in 1979, after she wrote five threatening letters to President Carter.

Appellant admitted that she threatened President Reagan, but raised an insanity defense at trial. A jury convicted her, and her prior convictions required the trial judge to apply the career offender provision of the Guidelines to her sentence, producing a fifty-one month sentence. See § 4B1.1; United States v. McCaleb, 908 F.2d 176, 178 (7th Cir.1990) (a threat is a crime of violence to which § 4B1.1 applies); United States v. Left Hand Bull, 901 F.2d 647, 649 (8th Cir.1990) (same). Appellant submits that the provision did not apply to her since all concede that she never intended to carry out her threats, but the Guidelines do not condition application of the enhancement on whether the defendant intended to make good on the threat. Threats are themselves a form of violence that “may be costly and dangerous to society in a variety of ways, even when their authors have no intention whatever of carrying them out.” Rogers v. United States, 422 U.S. 35, 46-47, 95 S.Ct. 2091, 2098-99, 45 L.Ed.2d 1 (1975) (Marshall, J., concurring); cf. United States v. White, 903 F.2d 457, 467 (7th Cir.1990) (including threats as a type of violent conduct); French v. Owens, 111 F.2d 1250, 1257 (7th Cir.1985) (describing threats as a lesser form of violence). For that reason, 18 U.S.C. § 871 criminalizes the utterance of a threat, not the intent to carry it out. United States v. Hoffman, 806 F.2d 703, 706-07 (7th Cir.1986); see also Left Hand Bull, 901 F.2d at 649 (defendant’s inability to carry out threat is irrelevant). Both Congress (see 18 U.S.C. § 16) and the Sentencing Commission have deemed it appropriate to incapacitate for a longer period recidivists who have demonstrated a violent nature in the past by threatening others, whether or not they carried out their threats or intended to do so. When a defendant did manifest an intent to carry out the threat, the Guidelines require courts to increase the sentence from the base offense level. See § 2A6.1(b) (increase base offense level by six in such cases). And, when the threatened victim is the President, the Guidelines call for longer sentences still. See Application Note 2 to § 3A1.2; McCaleb, 908 F.2d at 177. The district court did not apply § 3A1.2 to appellant’s sentence, but should have since the adjustment factor of § 3A1.2 is mandatory.

The Commission also concluded, however, that in some cases it may be appropriate to reduce the sentences of defendants who have “committed a non-violent offense while suffering from significantly reduced mental capacity not resulting from voluntary use of drugs or other intoxicants.... ” U.S.S.G. § 5K2.13 (policy statement). The Guidelines permit, but do not require, sentencing judges to depart downward from the otherwise applicable sentencing range in such cases. Appellant asked the district court to depart on this basis. Judge Miller, in a thoughtful sentencing memorandum, 723 F.Supp. 79 (N.D.Ind.1989), concluded that § 5K2.13 does not authorize departure in cases, like this one, where a defendant was convicted of a “crime of violence” as defined by § 4B1.2 of the Guidelines.

The government claims that we have no jurisdiction to review a refusal to depart from the Guidelines. That is true when the refusal reflects an exercise of the judge’s discretion. United States v. Ojo, 916 F.2d 388, 394 (7th Cir.1990); United States v. Franco, 909 F.2d 1042, 1045 (7th Cir.1990). Judge Miller, however, declined to depart because he believed the Guidelines did not permit him to do so in this case. See 723 F.Supp. at 84-85. That was [591]*591a legal conclusion, not an exercise of discretion. 18 U.S.C. § 3742(a)(1) authorizes appeal whenever a sentence is “imposed in violation of law,” a source of jurisdiction that permits appellate review of legal interpretations of the Guidelines. We therefore agree with United States v. Bayerle, 898 F.2d 28, 31 (4th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 65, 112 L.Ed.2d 39 (1990), that a decision not to depart is reviewable on appeal if it is the product of a conclusion that the judge lacks authority to depart. See also United States v. Prescott, 920 F.2d 139 (2d Cir.1990); United States v. Chotas, 913 F.2d 897, 899 (11th Cir.1990); United States v. Cheape, 889 F.2d 477, 480-81 (3d Cir.1989); United States v. Russell, 870 F.2d 18, 20-21 (1st Cir.1989). The government cites United States v. Franz, 886 F.2d 973 (7th Cir.1989), to support its position, but that case involved a discretionary refusal to depart. Moreover, Franz acknowledged that 18 U.S.C. § 3742

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Bluebook (online)
926 F.2d 588, 1991 U.S. App. LEXIS 2392, 1991 WL 17045, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-carolyn-kay-poff-ca7-1991.