United States v. Tessmer
2011 U.S. App. LEXIS 21330
| 8th Cir. | 2011Background
- Tessmer was convicted of mailing a threatening communication under 18 U.S.C. § 876(c).
- The district court designated Tessmer as a career offender under USSG § 4B1.1 and imposed a 46-month sentence.
- Tessmer timely appealed, arguing § 876(c) is not a crime of violence because it lacks intent or means to carry out the threat.
- The court reviews the district court’s crime-of-violence determination de novo under USSG § 4B1.2(a).
- The statute defines crime of violence to include offenses with a threatened use of physical force against another person.
- Left Hand Bull held § 876(c) is categorically a crime of violence; Begay does not disturb that result.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is § 876(c) a crime of violence under § 4B1.2(a)(1)? | Tessmer argues it is not a crime of violence. | United States argues it is a crime of violence per Left Hand Bull. | Yes; § 876(c) is a crime of violence. |
| Does Begay undermine Left Hand Bull's ruling on § 876(c)? | Begay underminesLeft Hand Bull’s category. | Begay concerns the residual clause, not the § 4B1.2(a)(1) element in Left Hand Bull. | Begay does not affect Left Hand Bull; the holding remains. |
Key Cases Cited
- United States v. Left Hand Bull, 901 F.2d 647 (8th Cir. 1990) (mailing threatening communication categorically a crime of violence due to threat element)
- United States v. Bellrichard, 62 F.3d 1046 (8th Cir. 1995) (upholding § 876(c) against First Amendment challenge)
- Begay v. United States, 553 U.S. 137 (U.S. 2008) (residual clause analysis; not dispositive here)
- United States v. Craig, 630 F.3d 717 (8th Cir. 2011) (de novo review of crime-of-violence determinations)