PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 03-4067 TURNER DAVID STOKES, Defendant-Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., District Judge. (CR-02-154)
Argued: August 25, 2003
Decided: October 15, 2003
Before WILKINS, Chief Judge, and TRAXLER and GREGORY, Circuit Judges.
Affirmed in part and vacated and remanded in part by published opin- ion. Chief Judge Wilkins wrote the opinion, in which Judge Traxler and Judge Gregory joined.
COUNSEL
ARGUED: Edward Henry Weis, Assistant Federal Public Defender, Charleston, West Virginia, for Appellant. Michael Harvard Spencer, Assistant United States Attorney, Charleston, West Virginia, for Appellee. ON BRIEF: Mary Lou Newberger, Federal Public Defender, Charleston, West Virginia, for Appellant. Kasey Warner, United States Attorney, Charleston, West Virginia, for Appellee. 2 UNITED STATES v. STOKES OPINION
WILKINS, Chief Judge:
Appellant Turner David Stokes pled guilty to mailing a threatening communication, see 18 U.S.C.A. § 876(c) (West Supp. 2003). He claims that the district court erred at sentencing by imposing an enhancement under U.S. Sentencing Guidelines Manual § 2A6.1(b)(2) (2002) and denying a reduction under U.S.S.G. § 2A6.1(b)(5). We vacate the enhancement, affirm the denial of the reduction, and remand for resentencing.
I.
The basis for this prosecution was a letter Stokes mailed to his wife, whom he suspected of infidelity. As is relevant here, the letter appeared to threaten the lives of Stokes’ wife, "the man or men you are with," and Stokes’ three children. J.A. 49. (The full letter is repro- duced in an appendix to this opinion.)
The presentence report prepared after Stokes pled guilty recom- mended an adjusted offense level of 10, representing a base offense level of 12 reduced by two levels for acceptance of responsibility, see U.S.S.G. § 3E1.1(a). Stokes asserted that his offense level should be reduced pursuant to § 2A6.1(b)(5), which authorizes a downward adjustment if (a) no other adjustments under § 2A6.1 apply and (b) "the offense involved a single instance evidencing little or no delibera- tion."1 1 Section 2A6.1 provides in full: (a) Base Offense Level: (1) 12; or (2) 6, if the defendant is convicted of an offense under 47 U.S.C. § 223(a)(1)(C), (D), or (E) that did not involve a threat to injure a person or property. (b) Specific Offense Characteristics (1) If the offense involved any conduct evidencing an intent to carry out such threat, increase by 6 levels. UNITED STATES v. STOKES 3 The district court found that Stokes did not meet either of the requirements of § 2A6.1(b)(5). Regarding the first requirement, the court found that Stokes was eligible for an enhancement under § 2A6.1(b)(2) because his letter included threats against multiple peo- ple. The court further found that, in light of Stokes’ acknowledged difficulties with reading and writing, his letter must have required sig- nificant deliberation. Based on these findings, the court rejected Stokes’ request for a § 2A6.1(b)(5) reduction and instead imposed a two-level § 2A6.1(b)(2) enhancement. The court then sentenced Stokes to 21 months imprisonment.
II.
Stokes first asserts that the enhancement for multiple threats was erroneous because his entire letter comprised a single threat, even though it was directed at multiple victims. We agree that the § 2A6.1(b)(2) enhancement does not apply.
This claim presents an issue of guideline interpretation, which we review de novo. See Elliott v. United States, 332 F.3d 753, 761 (4th Cir. 2003). In interpreting a guideline, we apply the ordinary rules of statutory construction. See United States v. Bahhur, 200 F.3d 917, 927 (6th Cir. 2000). These rules require us to give the guideline its plain meaning, as determined by examination of its "language, struc-
(2) If the offense involved more than two threats, increase by 2 levels. (3) If the offense involved the violation of a court protec- tion order, increase by 2 levels. (4) If the offense resulted in (A) substantial disruption of public, governmental, or business functions or services; or (B) a substantial expenditure of funds to clean up, decontaminate, or otherwise respond to the offense, increase by 4 levels. (5) If (A) subsection (a)(2) and subdivisions (1), (2), (3), and (4) do not apply, and (B) the offense involved a single instance evidencing little or no deliberation, decrease by 4 levels. 4 UNITED STATES v. STOKES ture, and purpose." United States v. Horton, 321 F.3d 476, 479 (4th Cir. 2003) (internal quotation marks omitted), petition for cert. filed (U.S. May 19, 2003) (No. 02-10830). We must also examine the com- mentary accompanying the guideline, which "is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline." Stinson v. United States, 508 U.S. 36, 38 (1993).
In construing § 2A6.1(b)(2), we begin with the proposition that, all other factors being equal, a defendant who has threatened multiple individuals deserves a more severe penalty than a defendant who has threatened only one person. Section 2A6.1 contains two provisions that might permit a district court to impose a greater sentence for the more culpable defendant. First, as noted above, § 2A6.1(b)(2) pro- vides for a two-level increase "[i]f the offense involved more than two threats." And, Application Note 3(B) states:
If the offense involved substantially more than two threaten- ing communications to the same victim or a prolonged period of making harassing communications to the same victim, or if the offense involved multiple victims, an upward departure may be warranted.
The question we must answer is whether these provisions authorize both an enhancement and a departure when, as here, the defendant made a single communication threatening multiple people. We con- clude that only a departure, not an enhancement, is appropriate.
Note 3(B) authorizes a departure for an offense that involved (i) "substantially more than two threatening communications to the same victim," (ii) "a prolonged period of making harassing communi- cations to the same victim," or (iii) "multiple victims." The third por- tion of the note applies here. The key word within this portion of the note is "multiple," which means "consisting of, including, or involv- ing more than one." Webster’s Third New Int’l Dictionary 1485 (1981). Thus, Note 3(B) authorizes an upward departure if a single threatening communication names two or more victims. If § 2A6.1(b)(2) applies whenever a defendant threatens more than two victims, then a defendant who mails a single communication threaten- ing three people could receive both a § 2A6.1(b)(2) enhancement and UNITED STATES v. STOKES 5 a departure under Note 3(B). We do not believe the Sentencing Com- mission intended this result, as departures are generally reserved for factors that are not adequately taken into account in the applicable guideline. See U.S.S.G. § 5K2.0, p.s.
Our conclusion is buttressed by the fact that Note 3(B) imposes a far lower threshold for departures based on multiple victims than for departures based on the number of threatening communications.
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PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 03-4067 TURNER DAVID STOKES, Defendant-Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., District Judge. (CR-02-154)
Argued: August 25, 2003
Decided: October 15, 2003
Before WILKINS, Chief Judge, and TRAXLER and GREGORY, Circuit Judges.
Affirmed in part and vacated and remanded in part by published opin- ion. Chief Judge Wilkins wrote the opinion, in which Judge Traxler and Judge Gregory joined.
COUNSEL
ARGUED: Edward Henry Weis, Assistant Federal Public Defender, Charleston, West Virginia, for Appellant. Michael Harvard Spencer, Assistant United States Attorney, Charleston, West Virginia, for Appellee. ON BRIEF: Mary Lou Newberger, Federal Public Defender, Charleston, West Virginia, for Appellant. Kasey Warner, United States Attorney, Charleston, West Virginia, for Appellee. 2 UNITED STATES v. STOKES OPINION
WILKINS, Chief Judge:
Appellant Turner David Stokes pled guilty to mailing a threatening communication, see 18 U.S.C.A. § 876(c) (West Supp. 2003). He claims that the district court erred at sentencing by imposing an enhancement under U.S. Sentencing Guidelines Manual § 2A6.1(b)(2) (2002) and denying a reduction under U.S.S.G. § 2A6.1(b)(5). We vacate the enhancement, affirm the denial of the reduction, and remand for resentencing.
I.
The basis for this prosecution was a letter Stokes mailed to his wife, whom he suspected of infidelity. As is relevant here, the letter appeared to threaten the lives of Stokes’ wife, "the man or men you are with," and Stokes’ three children. J.A. 49. (The full letter is repro- duced in an appendix to this opinion.)
The presentence report prepared after Stokes pled guilty recom- mended an adjusted offense level of 10, representing a base offense level of 12 reduced by two levels for acceptance of responsibility, see U.S.S.G. § 3E1.1(a). Stokes asserted that his offense level should be reduced pursuant to § 2A6.1(b)(5), which authorizes a downward adjustment if (a) no other adjustments under § 2A6.1 apply and (b) "the offense involved a single instance evidencing little or no delibera- tion."1 1 Section 2A6.1 provides in full: (a) Base Offense Level: (1) 12; or (2) 6, if the defendant is convicted of an offense under 47 U.S.C. § 223(a)(1)(C), (D), or (E) that did not involve a threat to injure a person or property. (b) Specific Offense Characteristics (1) If the offense involved any conduct evidencing an intent to carry out such threat, increase by 6 levels. UNITED STATES v. STOKES 3 The district court found that Stokes did not meet either of the requirements of § 2A6.1(b)(5). Regarding the first requirement, the court found that Stokes was eligible for an enhancement under § 2A6.1(b)(2) because his letter included threats against multiple peo- ple. The court further found that, in light of Stokes’ acknowledged difficulties with reading and writing, his letter must have required sig- nificant deliberation. Based on these findings, the court rejected Stokes’ request for a § 2A6.1(b)(5) reduction and instead imposed a two-level § 2A6.1(b)(2) enhancement. The court then sentenced Stokes to 21 months imprisonment.
II.
Stokes first asserts that the enhancement for multiple threats was erroneous because his entire letter comprised a single threat, even though it was directed at multiple victims. We agree that the § 2A6.1(b)(2) enhancement does not apply.
This claim presents an issue of guideline interpretation, which we review de novo. See Elliott v. United States, 332 F.3d 753, 761 (4th Cir. 2003). In interpreting a guideline, we apply the ordinary rules of statutory construction. See United States v. Bahhur, 200 F.3d 917, 927 (6th Cir. 2000). These rules require us to give the guideline its plain meaning, as determined by examination of its "language, struc-
(2) If the offense involved more than two threats, increase by 2 levels. (3) If the offense involved the violation of a court protec- tion order, increase by 2 levels. (4) If the offense resulted in (A) substantial disruption of public, governmental, or business functions or services; or (B) a substantial expenditure of funds to clean up, decontaminate, or otherwise respond to the offense, increase by 4 levels. (5) If (A) subsection (a)(2) and subdivisions (1), (2), (3), and (4) do not apply, and (B) the offense involved a single instance evidencing little or no deliberation, decrease by 4 levels. 4 UNITED STATES v. STOKES ture, and purpose." United States v. Horton, 321 F.3d 476, 479 (4th Cir. 2003) (internal quotation marks omitted), petition for cert. filed (U.S. May 19, 2003) (No. 02-10830). We must also examine the com- mentary accompanying the guideline, which "is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline." Stinson v. United States, 508 U.S. 36, 38 (1993).
In construing § 2A6.1(b)(2), we begin with the proposition that, all other factors being equal, a defendant who has threatened multiple individuals deserves a more severe penalty than a defendant who has threatened only one person. Section 2A6.1 contains two provisions that might permit a district court to impose a greater sentence for the more culpable defendant. First, as noted above, § 2A6.1(b)(2) pro- vides for a two-level increase "[i]f the offense involved more than two threats." And, Application Note 3(B) states:
If the offense involved substantially more than two threaten- ing communications to the same victim or a prolonged period of making harassing communications to the same victim, or if the offense involved multiple victims, an upward departure may be warranted.
The question we must answer is whether these provisions authorize both an enhancement and a departure when, as here, the defendant made a single communication threatening multiple people. We con- clude that only a departure, not an enhancement, is appropriate.
Note 3(B) authorizes a departure for an offense that involved (i) "substantially more than two threatening communications to the same victim," (ii) "a prolonged period of making harassing communi- cations to the same victim," or (iii) "multiple victims." The third por- tion of the note applies here. The key word within this portion of the note is "multiple," which means "consisting of, including, or involv- ing more than one." Webster’s Third New Int’l Dictionary 1485 (1981). Thus, Note 3(B) authorizes an upward departure if a single threatening communication names two or more victims. If § 2A6.1(b)(2) applies whenever a defendant threatens more than two victims, then a defendant who mails a single communication threaten- ing three people could receive both a § 2A6.1(b)(2) enhancement and UNITED STATES v. STOKES 5 a departure under Note 3(B). We do not believe the Sentencing Com- mission intended this result, as departures are generally reserved for factors that are not adequately taken into account in the applicable guideline. See U.S.S.G. § 5K2.0, p.s.
Our conclusion is buttressed by the fact that Note 3(B) imposes a far lower threshold for departures based on multiple victims than for departures based on the number of threatening communications. In the latter circumstance, a departure is permitted only if the defendant made "substantially more than two threatening communications." It appears that the reason for this stringent requirement is that in this scenario, a defendant is subject to a departure in addition to a § 2A6.1(b)(2) enhancement. If the Sentencing Commission had con- templated that a defendant who threatened several people in a single communication would be subject to a § 2A6.1(b)(2) enhancement, it would have included a word like "substantially" in the portion of Note 3(B) relating to multiple victims. Cf. United States v. Adelman, 168 F.3d 84, 87 (2d Cir. 1999) (concluding that none of the specific offense characteristics listed in § 2A6.1 cover threats against multiple victims).
In sum, Note 3(B) clarifies that the phrase "more than two threats," as used in § 2A6.1(b)(2), refers to the number of threatening commu- nications, not the number of victims threatened.2 Thus, the district court erred in imposing a § 2A6.1(b)(2) enhancement. We therefore vacate the enhancement and remand for resentencing.
III.
We next consider the refusal of the district court to reduce Stokes’ offense level pursuant to § 2A6.1(b)(5). As to this issue, we affirm.
2 There may be cases in which multiple threats issued within a single letter or conversation are so distinct in nature and purpose that they should not be treated as a single threat for purposes of § 2A6.1(b)(2). This is not such a case, however; the letter at issue here was brief, it was directed to a single recipient, and all of the threatening statements within it were similar in nature and were based on the same grievance. 6 UNITED STATES v. STOKES The district court denied a § 2A6.1(b)(5) reduction based on two findings: (1) that Stokes made more than two threats and (2) that his letter evidenced substantial deliberation. Although we have already vacated the first of these findings, the second finding suffices to sup- port the district court decision. As the district court observed, Stokes must have expended great effort in writing the letter because he has difficulty reading and writing. Cf. United States v. Stevenson, 126 F.3d 662, 665-66 (5th Cir. 1997) (stating that written threats generally require deliberation and suggesting that § 2A6.1(b)(5) reduction may be appropriate only in cases involving oral threats). Under these cir- cumstances, the finding that Stokes’ letter reflects more than minimal deliberation is not clearly erroneous. See Elliott, 332 F.3d at 761 (stat- ing that factual determinations relating to application of guidelines are reviewed for clear error).
IV.
For the foregoing reasons, we vacate Stokes’ § 2A6.1(b)(2) enhancement, affirm the denial of a § 2A6.1(b)(5) reduction, and remand for further proceedings.3
AFFIRMED IN PART; VACATED AND REMANDED IN PART
3 We note that, while Stokes’ appeal was pending, Congress enacted legislation providing for a de novo standard of review for certain depar- ture decisions under the sentencing guidelines. See Prosecutorial Reme- dies and Other Tools to end the Exploitation of Children Today Act of 2003 ("PROTECT Act"), Pub. L. No. 108-21, § 401(d), 117 Stat. 650, 670. Because the district court did not depart from the sentencing guide- lines range, we need not decide whether the provisions of the PROTECT Act apply to Stokes’ case. UNITED STATES v. STOKES 7 APPENDIX
First page of Stokes’ letter: 8 UNITED STATES v. STOKES Second page of Stokes’ letter: UNITED STATES v. STOKES 9 Third page of Stokes’ letter: