United States v. Cocke

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 16, 1999
• Docket: 98-40696
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-40696 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SAMUEL WILLIAM COCKE,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. G-97-CR-9-1 - - - - - - - - - -

June 16, 1999

Before EMILIO M. GARZA, BENAVIDES, and PARKER, Circuit Judges.

PER CURIAM:*

Samuel William Cocke appeals his guilty-plea conviction for

making threats against the President and successors to the

President in violation of 18 U.S.C. § 871. Cocke contends that

the district court erred in denying his motion to dismiss the

indictment because it did not allege that he intended to carry

out the threat or that he intended the threat to be conveyed to

the President. Cocke’s argument is foreclosed by this court’s

precedent in United States v. DeShazo, 565 F.2d 893, 895 (5th

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 98-40696 -2-

Cir. 1978).

Cocke argues that the district court erred in not making a

factual finding concerning whether he actually traveled to

Washington, D.C., in February 1997 to conduct surveillance of the

White House before the district court increased his offense level

under U.S. Sentencing Guidelines § 2A6.1(b)(1). Because Cocke

told Secret Service agents in interviews that he conducted

surveillance of the White House and Cocke did not present any

specific evidence at sentencing to rebut the facts presented in

the Presentence Report (PSR) concerning his actions, the district

court was entitled to adopt the facts in the PSR without further

inquiry. See United States v. Sherbak, 950 F.2d 1095, 1099-1100

(5th Cir. 1992).

Cocke argues that the district court erred in not decreasing

his offense level by four levels under § 2A6.1(b)(4), which

provides for such a reduction if the threat “involved a single

instance evidencing little or no deliberation.” § 2A6.1(b)(4).

Because Cocke’s actions included obtaining stationery, searching

for an address, obtaining postage, and mailing the letter, his

actions were not spontaneous and did not warrant a reduction in

his offense level under § 2A6.1(b)(4). See United States v.

Stevenson, 126 F.3d 662, 665 (5th Cir. 1997).

AFFIRMED.