Wednesday, February 15, 2017

Court Affirms Above-Guideline Sentence for Mailing Threatening Letter

US v. Spencer: Spencer was an inmate in a local jail in Virginia when he sent a letter to the federal clerk's office that contained a letter "covered in white powder" that stated (among other things) that the "very letter you hold may indeed by the last that you hold." The letter asked "Are you already infected with the pain?", then answered that "Only time will tell." US Marshals instructed the clerk, who was "disconcerted and afraid" to lock herself in the mailroom, alone, until inspectors could arrive. Ultimately, the powder was harmless - dried toothpaste. Interviewed at the jail, Spencer admitted sending the letter and explained that the powder was "to enhance the effect . . . in order to put fear into the reader" that the powder was poison.

Spencer pleaded guilty to mailing a threatening communication. At sentencing, the district court overruled Spencer's objection to a six-level enhancement for "conduct evidencing intent to carry out [the] threat" and sentenced him to the top of the resulting Guideline range, 46 months. Spencer appealed and the Fourth Circuit vacated his sentence, finding that the enhancement should not apply. On remand, the district court concluded that a sentence within the new Guideline range - 21 to 27 months - was "totally inadequate" for the facts of the case, which included the "lady who got that letter thought it was anthrax, and she thought somebody had sentenced her to death." Therefore, the district court announced it was going to "upwardly depart" and impose a sentence of 45 months based on several factors, including that Spencer "ha[s] successfully appealed the prior sentence." Such a sentence was "fair" and was the sentence the district court "would have given" without any advice from the Guidelines. When imposing the 45-month sentence, the district court  made clear it was "strictly an upward departure," but on the Sealed Statement of Reasons checked the box for a variance.

On appeal for the second time the Fourth Circuit affirmed Spencer's sentence. First, the court rejected Spencer's argument that the district court erred by departing from the Guideline range without providing prior notice, as required by the Rules of Criminal Procedure. Although the court noted that "the boundary between departures and variances is often murky," especially so in this case, it treated the sentence as a departure ("a measure of formality must mark the sentencing procedure"). However, because Spencer did not object to the lack of notice, review was only for plain error and Spencer could not show any prejudice because "the district court repeatedly telegraphed that it might deviate from the Guidelines" and after the initial successful appeal eliminated the six-level enhancement "Spencer had every reason to believe that the court might adopt an above-Guidelines sentence." Second, Spencer argued that the 45-month sentence was substantively unreasonable. The court disagreed, holding that the district court did not abuse its discretion in imposing the sentence. The court relegated the comment about Spencer's successful appeal to a footnote, stating that the district court's "passing reference" was not enough to give rise to a presumption of vindictiveness.

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