RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0112P (6th Cir.) File Name: 00a0112p.06
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________
; UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 98-4515 v. > CHARLES H. HUDSPETH, Defendant-Appellant. 1 Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 97-00086—Herman J. Weber, District Judge. Submitted: February 4, 2000 Decided and Filed: March 30, 2000 Before: WELLFORD, BATCHELDER, and DAUGHTREY, Circuit Judges. _________________ COUNSEL ON BRIEF: Richard W. Smith-Monahan, OFFICE OF THE FEDERAL PUBLIC DEFENDER, SOUTHERN DISTRICT OF OHIO, Cincinnati, Ohio, for Appellant. Terry Lehmann, ASSISTANT UNITED STATES ATTORNEY, Cincinnati, Ohio, for Appellee.
1 2 United States v. Hudspeth No. 98-4515 No. 98-4515 United States v. Hudspeth 7
DAUGHTREY, J., delivered the opinion of the court, in States v. Stanley, 24 F.3d 1314 (11th Cir. 1994), cited by the which BATCHELDER, J., joined. WELLFORD, J. (pp. 6-7), government in its brief, all involved law enforcement officials delivered a separate concurring opinion. and did not involve the guideline in question. United States v. Muhammed, 948 F.2d 1449 (6th Cir. 1991), involved the _________________ former version of § 3A1.2, and the defendant assaulted a law employment official in the course of attempted bank robbery OPINION of a federally insured bank in that case. It is not pertinent to _________________ the circumstances of this case, in my view. MARTHA CRAIG DAUGHTREY, Circuit Judge. The Strangely, neither the statute under which defendant was defendant, Charles Howard Hudspeth, appeals his sentence of convicted nor the indictment itself presented under 18 U.S.C. 21 months’ incarceration and three years’ supervised release, § 876 makes mention of the threat being caused, motivated, imposed as a result of his conviction for mailing threatening or engendered by reason of the victim’s official status. The communications in violation of 18 U.S.C. § 876 (1994). applicable part of the statute refers to a “threat” addressed to Hudspeth alleges that the district court impermissibly “any other person to injure the person” through the use of the enhanced his sentence pursuant to United States Sentencing mail. The indictment tracks the statute and makes no mention Guideline § 3A1.2(a), which mandates an increase of three of the language contained in guideline § 3A1.2, which refers sentencing levels if the victim of federal criminal conduct was to the threat’s being “motivated by such [official] status.” “a government officer or employee.” We find no error and, for the reasons set out below, we affirm the district court’s Under the circumstances, it is with trepidation and some judgment. uncertainty that I join the majority opinion. PROCEDURAL AND FACTUAL BACKGROUND In 1997, Charles Hudspeth was indicted on two counts of mailing threatening communications to Joseph Deters, a prosecuting attorney for Hamilton County, Ohio, in part for Deters’s presumed participation in Hudspeth’s prosecution on state criminal charges. As part of a plea agreement with the government, Hudspeth pleaded guilty to one count of the indictment. The district court sentenced Hudspeth to 21 months’ incarceration in federal prison, to be served consecutively with Hudspeth’s ongoing state prison sentence and to be followed by a three-year term of supervised release. The court enhanced Hudspeth’s sentence by three levels pursuant to § 3A1.2(a) of the sentencing guidelines, entitled “Official Victim,” because Joseph Deters was “a government official of Hamilton County.” On appeal, Hudspeth claims that the term “government officer or employee” in § 3A1.2(a) refers only to federal employees, not to state or local 6 United States v. Hudspeth No. 98-4515 No. 98-4515 United States v. Hudspeth 3
______________________ employees, and thus that his conduct in mailing threatening correspondence to Deters was not covered by this provision. CONCURRENCE ______________________ DISCUSSION
HARRY W. WELLFORD, Circuit Judge, concurring. I Section 3A1.2(a) states “If . . . the victim was a government reluctantly concur in my colleague’s opinion in this case. officer or employee; a former government officer or Were I writing on a clean slate, my view would be contrary to employee; or a member of the immediate family of any of the that of the majority. It seems to me that the guideline in above, and the offense of conviction was motivated by such question, § 3A1.2(a), goes far beyond the import of 18 U.S.C. status . . . increase by 3 levels.” The question of whether § 1114, which deals with “protection of officers and § 3A1.2(a), one of a number of guidelines provisions employees of the United States.” (Emphasis added.) Why the requiring victim-related adjustments to federal sentences, federal guidelines should have special concern about threats applies to cases where the victim is a state or local employee to local or county officials and employees and enhance is apparently one of first impression in this circuit, although federal penalties by reason of such factor escapes me, other federal appeals courts have held that the provision does particularly in the absence of specific language that a cover such cases. See United States v. Stewart, 20 F.3d 911, “government officer or employee” 1includes a non-federal 918 (8th Cir. 1994); cf. United States v. Aman, 31 F.3d 550, government official or employee. Should the federal 556 (7th Cir. 1994). Based on our de novo review of the sentencing guidelines bring about a particular enhancement to district court’s sentencing order, see United States v. Talley, a federal sentence for threats to a municipal secretary or a 164 F.3d 989, 1003 (6th Cir.), cert. denied, 119 S. Ct. 1793 sanitation worker or his or her immediate family? I think not (1999), we see little ambiguity in applying the plain language as a matter of logic and federalism. of the provision to these facts: Joseph Deters was a county government employee, and Hudspeth’s admitted criminal The Stewart case, cited in support by the majority, involved conduct was motivated by Deters’s status as “a government threats made to an Arkansas Department of Corrections officer or employee.” Moreover, we agree with the Eighth official in a federal courthouse. One can see a federal Circuit that, as a matter of policy, there is “absolutely no basis connection in such a case with 18 U.S.C. § 1114. United for limiting the guideline,” and whatever deterrent effect may States v. Aman, 31 F.3d 550, 536 (7th Cir. 1994), does be presumed from its promulgation, in this manner. See describe the 1992 amendment to the guideline in question as Stewart, 20 F.3d at 918. “greatly” expanding those who could be an “official victim” and cause a federal sentence enhancement.
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RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0112P (6th Cir.) File Name: 00a0112p.06
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________
; UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 98-4515 v. > CHARLES H. HUDSPETH, Defendant-Appellant. 1 Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 97-00086—Herman J. Weber, District Judge. Submitted: February 4, 2000 Decided and Filed: March 30, 2000 Before: WELLFORD, BATCHELDER, and DAUGHTREY, Circuit Judges. _________________ COUNSEL ON BRIEF: Richard W. Smith-Monahan, OFFICE OF THE FEDERAL PUBLIC DEFENDER, SOUTHERN DISTRICT OF OHIO, Cincinnati, Ohio, for Appellant. Terry Lehmann, ASSISTANT UNITED STATES ATTORNEY, Cincinnati, Ohio, for Appellee.
1 2 United States v. Hudspeth No. 98-4515 No. 98-4515 United States v. Hudspeth 7
DAUGHTREY, J., delivered the opinion of the court, in States v. Stanley, 24 F.3d 1314 (11th Cir. 1994), cited by the which BATCHELDER, J., joined. WELLFORD, J. (pp. 6-7), government in its brief, all involved law enforcement officials delivered a separate concurring opinion. and did not involve the guideline in question. United States v. Muhammed, 948 F.2d 1449 (6th Cir. 1991), involved the _________________ former version of § 3A1.2, and the defendant assaulted a law employment official in the course of attempted bank robbery OPINION of a federally insured bank in that case. It is not pertinent to _________________ the circumstances of this case, in my view. MARTHA CRAIG DAUGHTREY, Circuit Judge. The Strangely, neither the statute under which defendant was defendant, Charles Howard Hudspeth, appeals his sentence of convicted nor the indictment itself presented under 18 U.S.C. 21 months’ incarceration and three years’ supervised release, § 876 makes mention of the threat being caused, motivated, imposed as a result of his conviction for mailing threatening or engendered by reason of the victim’s official status. The communications in violation of 18 U.S.C. § 876 (1994). applicable part of the statute refers to a “threat” addressed to Hudspeth alleges that the district court impermissibly “any other person to injure the person” through the use of the enhanced his sentence pursuant to United States Sentencing mail. The indictment tracks the statute and makes no mention Guideline § 3A1.2(a), which mandates an increase of three of the language contained in guideline § 3A1.2, which refers sentencing levels if the victim of federal criminal conduct was to the threat’s being “motivated by such [official] status.” “a government officer or employee.” We find no error and, for the reasons set out below, we affirm the district court’s Under the circumstances, it is with trepidation and some judgment. uncertainty that I join the majority opinion. PROCEDURAL AND FACTUAL BACKGROUND In 1997, Charles Hudspeth was indicted on two counts of mailing threatening communications to Joseph Deters, a prosecuting attorney for Hamilton County, Ohio, in part for Deters’s presumed participation in Hudspeth’s prosecution on state criminal charges. As part of a plea agreement with the government, Hudspeth pleaded guilty to one count of the indictment. The district court sentenced Hudspeth to 21 months’ incarceration in federal prison, to be served consecutively with Hudspeth’s ongoing state prison sentence and to be followed by a three-year term of supervised release. The court enhanced Hudspeth’s sentence by three levels pursuant to § 3A1.2(a) of the sentencing guidelines, entitled “Official Victim,” because Joseph Deters was “a government official of Hamilton County.” On appeal, Hudspeth claims that the term “government officer or employee” in § 3A1.2(a) refers only to federal employees, not to state or local 6 United States v. Hudspeth No. 98-4515 No. 98-4515 United States v. Hudspeth 3
______________________ employees, and thus that his conduct in mailing threatening correspondence to Deters was not covered by this provision. CONCURRENCE ______________________ DISCUSSION
HARRY W. WELLFORD, Circuit Judge, concurring. I Section 3A1.2(a) states “If . . . the victim was a government reluctantly concur in my colleague’s opinion in this case. officer or employee; a former government officer or Were I writing on a clean slate, my view would be contrary to employee; or a member of the immediate family of any of the that of the majority. It seems to me that the guideline in above, and the offense of conviction was motivated by such question, § 3A1.2(a), goes far beyond the import of 18 U.S.C. status . . . increase by 3 levels.” The question of whether § 1114, which deals with “protection of officers and § 3A1.2(a), one of a number of guidelines provisions employees of the United States.” (Emphasis added.) Why the requiring victim-related adjustments to federal sentences, federal guidelines should have special concern about threats applies to cases where the victim is a state or local employee to local or county officials and employees and enhance is apparently one of first impression in this circuit, although federal penalties by reason of such factor escapes me, other federal appeals courts have held that the provision does particularly in the absence of specific language that a cover such cases. See United States v. Stewart, 20 F.3d 911, “government officer or employee” 1includes a non-federal 918 (8th Cir. 1994); cf. United States v. Aman, 31 F.3d 550, government official or employee. Should the federal 556 (7th Cir. 1994). Based on our de novo review of the sentencing guidelines bring about a particular enhancement to district court’s sentencing order, see United States v. Talley, a federal sentence for threats to a municipal secretary or a 164 F.3d 989, 1003 (6th Cir.), cert. denied, 119 S. Ct. 1793 sanitation worker or his or her immediate family? I think not (1999), we see little ambiguity in applying the plain language as a matter of logic and federalism. of the provision to these facts: Joseph Deters was a county government employee, and Hudspeth’s admitted criminal The Stewart case, cited in support by the majority, involved conduct was motivated by Deters’s status as “a government threats made to an Arkansas Department of Corrections officer or employee.” Moreover, we agree with the Eighth official in a federal courthouse. One can see a federal Circuit that, as a matter of policy, there is “absolutely no basis connection in such a case with 18 U.S.C. § 1114. United for limiting the guideline,” and whatever deterrent effect may States v. Aman, 31 F.3d 550, 536 (7th Cir. 1994), does be presumed from its promulgation, in this manner. See describe the 1992 amendment to the guideline in question as Stewart, 20 F.3d at 918. “greatly” expanding those who could be an “official victim” and cause a federal sentence enhancement. It does not appear, Hudspeth argues that, under the rule of lenity, we should however, that the defendant in Aman made the direct construe this purportedly ambiguous guidelines provision in challenge made by Hudspeth in this case. his favor. Although we do apply the rule of lenity to matters relating to the sentencing guidelines, see United States v. United States v. Garcia, 34 F.3d 6 (1st Cir. 1994); United Sanders, 162 F.3d 396, 402 (6th Cir. 1998), and, indeed, have States v. Alexander, 48 F.3d 1477 (9th Cir. 1995), and United not hesitated in the past to apply the rule to decisions regarding criminal sanctions, see United States v. Morton, 17 F.3d 911, 915 (6th Cir. 1994), the rule of lenity is generally 1 Before the amendment, I could see more reason for enhancement inapplicable unless, “after a court has ‘seize[d] [on] every when the threatened party was a “law enforcement or corrections officer” thing from which aid can be derived,’ it is still left with an of a state agency. 4 United States v. Hudspeth No. 98-4515 No. 98-4515 United States v. Hudspeth 5
ambigu[ity].” Chapman v. United States, 500 U.S. 453, 463 else in the structure of the guidelines or the history of their (1991) (quoting United States v. Bass, 404 U.S.336, 347 amendments supports Hudspeth’s position, and his “mere (1971)). assertion of an alternative interpretation of a sentencing guideline is not enough to bring the rule [of lenity] into play.” We believe both that the meaning of § 3A1.2(a) is clear and United States v. Tagore, 158 F.3d 1124, 1128 n.3 (10th Cir. that the history of the provision affirms our conclusion that 1998). conduct motivated by the work of state and local employees, or by their status as employees, is covered by this guideline. Although we recognize that, according to the pre-sentence Section 3A1.2(a) was last amended in 1992; pre-amendment, report recommending enhancement, the target of the it stated: threatening communications in this case apparently suffered little or no injury from the receipt of the threats, we conclude If . . . the victim was a law enforcement or corrections that application of § 3A1.2(a) depends on the victim’s status, officer; a former law enforcement or corrections officer; not on whether he or she suffered harm. We hold that federal an officer or employee included in 18 U.S.C. § 1114; a criminal sentences may be enhanced pursuant to § 3A1.2(a) former officer or employee included in 18 U.S.C. § 1114; if the underlying conduct was motivated by the victim’s status or a member of the immediate family of any of the above, as a state or local government employee, and we therefore and the offense of conviction was motivated by such AFFIRM the judgment of the district court. status . . . increase by 3 levels. United States Sentencing Guidelines Manual § 3A1.2(a) (1991). The version of § 1114 in effect before 1992 made killing any one of a number of designated federal officers a federal crime. See 18 U.S.C. § 1114 (1994). It included among those officers specially protected federal judges, United States Attorneys and Assistant Attorneys, United States marshals, FBI agents, other Department of Justice employees, Postal Service agents, and other employees of various federal agencies. See id. Hudspeth argues that § 1114 criminalized only the killing of these officers “on account of the performance of [their] official duties,” and not because of their “official position,” and thus that § 3A1.2(a) was amended to expand protection only to federal employees from retaliatory conduct similarly based on status, not to expand protection to state and local employees. We disagree with Hudspeth’s parsing of the language of the version of § 1114 in effect in 1992, which has since been amended to more broadly prohibit killing “any officer or employee of the United States.” We also disagree with his argument that, in this context, “performance of official duties” may be meaningfully distinguished from “official position.” Nothing