United States v. Todd Spencer, 2017 U.S. App. LEXIS 2337

In 2013 Spencer, an inmate, mailed a threatening letter covered in white powder to a federal courthouse clerk; he later admitted the powder was dried toothpaste intended to mimic poison.
Spencer pleaded guilty to sending a threatening communication in violation of 18 U.S.C. § 876(c).
The PSR applied a six-level enhancement under U.S.S.G. § 2A6.1(b)(1), producing a Guidelines range of 37–46 months; the district court originally sentenced Spencer to 46 months.
This Court vacated the enhancement on appeal, finding the harmless toothpaste did not show intent to carry out the threat, and remanded for resentencing, yielding a Guidelines range of 21–27 months.
At resentencing the district court declined to apply enhancements but imposed a 45-month sentence as an "upward departure" (later characterized on the Statement of Reasons as a variance), citing § 3553(a) factors — particularly the severe effect on the victim and need for deterrence.
Spencer appealed, arguing (1) lack of reasonable notice of the court’s intent to depart/vary in violation of Fed. R. Crim. P. 32(h), and (2) that the 45‑month sentence was procedurally and substantively unreasonable.

Issue	Plaintiff's Argument (Spencer)	Defendant's Argument (United States)	Held
Whether the district court violated Rule 32(h) by failing to give reasonable advance notice of an intended upward departure/variance	Court said it would “upwardly depart” but did not give formal notice; Spencer says this deprived him of the chance to respond and thus prejudiced his rights	The court repeatedly signaled it might impose an above‑Guidelines sentence; any lack of formality did not affect Spencer’s substantial rights	Held: No reversible error under plain‑error review — prior proceedings put Spencer on notice and he suffered no prejudice
Whether the 45‑month sentence was substantively unreasonable	Sentence is excessive, based on improper factors, and rests on unfounded factual inferences	Sentence rests on permissible § 3553(a) considerations (victim impact, deterrence, just punishment); district court’s inferences were reasonable given facts	Held: Sentence is substantively reasonable and within the court’s broad discretion

Gall v. United States, 552 U.S. 38 (2007) (establishes procedural and substantive reasonableness framework and deference to district courts)
Irizarry v. United States, 553 U.S. 708 (2008) (addresses prejudice inquiry for notice of potential sentence increase)
Dominguez Benitez v. United States, 542 U.S. 74 (2004) (plain‑error prejudice standard)
Henderson v. United States, 133 S. Ct. 1121 (2013) (clarifies plain‑error review in criminal cases)
United States v. Carter, 564 F.3d 325 (4th Cir. 2009) (requires individualized sentencing explanation)
United States v. Diosdado‑Star, 630 F.3d 359 (4th Cir. 2011) (noting practical similarities between departures and variances)
United States v. Olivares, 292 F.3d 196 (4th Cir. 2002) (prohibits vindictiveness on resentencing)
United States v. Spencer, [citation="628 F. App'x 867"] (4th Cir. 2015) (prior panel decision vacating the § 2A6.1(b)(1) enhancement)