Donald McAnineh, who pleaded guilty to mail fraud and mailing threatening communications, appeals the sentence imposed by the district court. We affirm.
FACTS AND PROCEDURAL HISTORY
From April of 1990 through March of 1991, McAnineh waged a campaign of harassment and intimidation against several individuals in Oregon and Washington whom he did not know but believed to be interracially married. Following an investigation by the Secret Service, McAnineh was arrested and indicted for these activities.
The indictment alleged that McAnineh ordered scores of magazine subscriptions to be sent to the homes of the eight individuals he targeted, as well as books аnd other merchandise, for which they were billed; that he submitted false change of address cards to the post office in the individuals’ names, causing their mail to be forwarded to other locations; that he called utilities and requested to have power shut off in their homes; and that he sent threatening communiea-tions, including a magazine article describing the violent death of Mulugeta Seraw, a black Ethiopian youth who was killed by skinheads in Portland, an oath pledging allegiance to the Ku Klux Klan, and a photograph of a confederate statue with a swastika drawn on it. In addition, it was alleged that McAnineh mailed two letters to the White House threatening to kill President Bush, signing the names of two of the men he had chosen to harass.
Pursuant to a plea agreement, McAnineh pleaded guilty to three counts of the ten-count indictment: count three, which alleged mail fraud in connection with a false change of address form McAnineh filled out in the name of Walter Naylor, in violation of 18 U.S.C. §§ 1341, 1346, 3237, and 2; count nine, which alleged the mailing of a threatening communication to Brian Williams, in violation of 18 U.S.C. § 876, 3237, and 2; and count ten, which alleged that McAnineh sent a letter threatening the President to which he had signed the namе of Ramsey Al-Sa-lam, in violation of 18 U.S.C. §§ 871, 3237, and 2. In keeping with the plea agreement, the remaining counts were dismissed at sentencing.
The probation officer premised the presen-tence report on his determination that the mail fraud count was controlled by guidelines section 2F1.1 (Fraud and Deceit) and that the two other counts fell under section 2A6.1 (Threatening Communications). Applying these guidelines, the probation officer calculated McAninch’s offense level to be 13, 1 with a criminal history category of II. At the sentencing hearing, the district court departed upward to an offense levеl of 16 on the basis of three factors: the President had been a victim of the threatening communication in count ten; the harassment had resulted in extreme psychological injury to McAn-inch’s victims; and McAninch’s actions had *1383 been racially motivated. 2 The court sentenced McAninch at the top of the applicable range to 30 months imprisonment. In addition, the court ordered McAninch to pay restitution in the amount of $250.91 to the victim of count eight and imposed a special assessment of $150.
On appeal, McAninch contends that the district court improperly relied on conduct alleged in the dismissed counts in sentencing him and that the three-point upward departure was unwarranted.
DISCUSSION
A. Improper Reliance on Dismissed Counts
In addition to describing the offenses to which McAninch had pleaded guilty, the pre-sentence report contained information about the victims of the counts that were to be dismissed pursuant to the plea agreement. At the sentencing hearing, the court characterized McAninch’s conduct as “over a year’s worth of repeated bombardment,” although the specific counts to which McAninch had pleaded referred only to acts committed between September 1990 and January 1991. (Sentencing Transcript (“S.T.”) at 41.) The judge permitted a victim of one of the dismissed counts, Luma Nichol, to address the court concerning the racist nature of McAn-inch’s actions. As part of McAninch’s sentence, Nichol was awarded $250.91 in restitution, representing the amount she had spent to cancel magazine subscriptions and undo other effects of the harassment against her.
McAninch contends that the district court’s consideration of conduct that was the subject of dismissed counts entitles him to a remand. We review the district court’s interpretation of the Sentencing Guidelines de novo,
United States v. McInnis,
This circuit recently addressed the issue whether dismissed counts can be taken into consideration by the sentencing judge.
United States v. Fine,
Offenses to which guideline 2F1.1 applies, which include the mail fraud charged in count three, are groupable offenses.
See
U.S.S.G. § 3D1.2(d) (1991);
Fine,
The injuries inflicted by McAninch were more psychic than financial. Under the logic of the Sentencing Guidelines, this meant that McAninch received the lowest possible base offense level rating for the mail fraud to which he pleaded guilty in count three, level 6. See U.S.S.G. § 2Fl.l(b)(l)(A) (1991) (offenses resulting in losses of $2,000 or less). *1384 The court adopted the recommendation of the presentence report to increase the offense level by two pursuant to section 2Fl.l(b)(2)(A) because the fraud involved more than minimal planning, resulting in an offense level of eight for count three. 3
There is nothing in the presentence report upon which the district judge relied that indicates that the calculation of the offense level for count three related to any of the dismissed charges. In recommending level eight (and considering but rejecting a vulnerable victim adjustment), the probation officer, in his report, mentioned only the victim of that count, the wife of the deceased man whose mail McAninch had fraudulently forwarded. Similarly, there is nothing in the record that shows that the court was relying on dismissed counts in adopting the level 12 as the base оffense level for counts nine and ten. Twelve is the minimum under section 2A6.1.
McAninch’s primary concern appears to be that the court considered the experiences of Nichol before imposing the sentence. 4 Count eight, the only count specifically concerning Nichol, charged McAninch with mail fraud in connection with a magazine he ordered in Niehol’s name. Even if the court had looked to conduct directed against Nichol and other aspects of McAninch’s overall fraudulent scheme in setting the offense level for count three, it would have been entitled to do sо, because the fraud counts were groupable. 5
B. Upward Departure
McAninch makes specific objections to each of the court’s three bases for departing upward. We review the district court’s decision to depart under the tripartite test established in
United States v. Lira-Barraza,
1. President as victim
The letter McAninch sent to President Bush over the signature of Ramsey Al-Salam threatened that if the President did not “[e]nd the imperialist aggression against the Iraqi people,” he would “pay with [his] life.” It continued, “How would your wife, Barbara, like to walk into [the] Oval Office and see your brains splattered all over the wall? or visit Seattle with you and return to the White House ALONE? ” (E.R. 6 at 11.)
Because the communication threatened the President, the government and probation officer both recommended that the court depart uрward pursuant to application note 2 to *1385 guideline section 3A1.2. The court adopted this recommendation as one of the grounds for its three-level upward departure. McAn-inch concedes the factual basis of the departure, that the President was a victim, but argues that to depart upward on this basis constituted impermissible double-counting in that an element of the offense of which he was convicted in count ten was that the President was a victim. McAninch further contends that his mailing of the letter was not motivated by the President’s status.
Section 3A1.2(a) (Official Victim) of the 1991 Sentencing Guidelines 6 instructs the court to increase the offense level by three
[i]f ... the victim was a law enforcement or corrections officer; a former law enforcement or corrections officer; an officer or employee included in 18 U.S.C. § 1114; a former officer or employee included in 18 U.S.C. § 1114; or a member of the immediate family of any of the above, and the offense of conviction was motivated by such status.
Because 18 U.S.C. § 1114 does not include the President among the list of officials it is designed to protect, however, section 3A1.2 does not provide for an upward adjustment when the official victim is the President. Application note 2 to that section fills in thаt lacuna: “Certain high-level officials, e.g., the President and Vice President, are not expressly covered by this section. The court should make an upward departure of at least three levels in those unusual cases in which such persons are victims.”
An application note cannot be disregarded by the district court unless it is inconsistent with the related guideline.
United States v. Anderson,
We find no merit in McAninch’s contention that the upward departure constituted double-counting under the guidelines. Because all sorts of threatening communications fall within the ambit of section 2A6.1, the guideline which provided the base offense level for count tеn, the relevant comparison in determining whether there was double-counting in this case is between the applicable guidelines provisions, not between the guidelines provisions and the criminal code. Indeed, the commentary to section 2A6.1 notes that
[t]he Commission recognizes that this offense includes a particularly wide range of *1386 conduct and that it is not possible to include all of the potentially relevant circumstances in the offense level. Factors not incorporated in the guideline may be considered by the court in determining whether a departure from the guidelines is wаrranted.
U.S.S.G. § 2A6.1 application note 1 (1991). This commentary is borne out in McAninch’s case, since section 2A6.1 applied to count nine as well, which did hot involve the President.
Because section 2A6.1 does not specify any victim-related adjustments at all, a court’s departure pursuant to application note 2 is not redundant. To the contrary, as is demonstrated by the involvement of the Secret Service in this case, a sentencing enhancement based on the fact that the President was the recipient of a threat is easily supportable because of the response the thrеat necessarily provokes in those whose responsibility it is to protect the chief of state.
See Roy v. United States,
Relying on the language in guideline section 3A1.2, McAninch argues in the alternative that the three-level upward departure pursuant to application note 2 was improper because the letter was not “motivated by” the President’s official status.
See United States v. Hoyungowa,
To begin with, application note 2 does not contain the “motivated by” language to which McAninch refers; nor do we perceive a reason to read the language into this departure provision since it functions independently of the section to which it is appended. Even if we were to read such a requirement intо the application note, however, it was undoubtedly met in this case because such motivation was inherent in the offense to which McAninch pleaded guilty. Application note 4 to section 3A1.2 offers guidance on interpreting the language “motivated by such status.” It explains that an offense arising out of a “personal dispute” between coworkers at a government agency would not be considered to have been motivated by the victim’s official status. In this case, President Bush’s official status was not incidental to the conduct at issue. In urging Bush to end a military conflict, McAninch in his threatening lettеr obviously referred to the President’s official duties. Moreover, in keeping with the scheme of harassment devised by McAninch, the purpose of the communication evidently was to implicate its purported author in unlawful. activities that would attract the attention of the authorities.
The court’s decision to depart upward because the President was a victim was legally and factually justified. 8
2. Psychological injury to victims
McAninch contends that the court’s finding of extreme psychological injury is not supported by the record, and that it therefore did not constitute a valid basis for departure.
The presentence rеport contained information about the impact of the harassing conduct on the victims of the counts to which McAninch pleaded guilty, as well as on the victims of the dismissed counts. In justifying the proposed departure for psychological *1387 injury, the report referred to individuals in addition to those who were the targets of the specific conduct charged in counts three, nine and ten.
The court also had before it with respect to this ground of departure letters from several victims detailing individual experiences of harassment. For example, the wife of the man who had been sent thе threatening items that were the subject of count nine wrote that she had “never felt so vulnerable and helpless” in her life. (Presentence Report attachment (Williams letter) at 3.) “After receiving that letter, I would come home from work to find my daughter huddled in the corner of the sofa with a kitchen knife in her hand.... I felt it was entirely possible that the next step the harasser would take would be to confront us directly.” (Id. at 2.) Some of the letters included in the presen-tence report were from the victims of dismissed counts.
The district court found that McAninch had harassed his victims to “an extreme degree .... placing them in extreme fear ... that the next mention of [McAninch], the next contact would be at the door.” (S.T. at 40-41.) The court adopted the recommendation of the government and presentence report to depart upward pursuant to section 5K2.3 of the guidelines due to the psychological injury McAninch inflicted on those he chose to harass. In doing so, the court did not specify to which victims it referred.
The district court’s desire to depart upward on this basis was understandable in view of the psychological trauma McAninch visited upon his victims, a consequence that was not necessarily reflected in the applicable offense level. Nonetheless, we cannot uphold this basis for departure because the court did not clearly limit its consideration of psychological injury to the counts of conviction, as is required under
Castro-Cervantes. United States v. Fine,
3. Racist motivation
McAninch submitted a written statement to the court in connection with his sentencing in which he explained his actions in part as follows:
I committed these crimes due to the psychological problems I wаs and am experiencing; ...
In the Spring of 1987 my sister told me she had married a [Peruvian] Indian man due to the fact that white men are sexually inferior to other men.... I became obsessed over the fact that women potentially viewed me as inferior....
I honestly felt that if minority males (i.e. black men, hispanic men, indian men, etc.) were sexually superior to white men, it would hurt my chances of landing a woman. My problems were more sexual and psychological than racial. I am not a racist. ...
(E.R. 7 attachment (Statement of Donald McAninch) at 1-2.)
The district court considered but ultimately rejected McAninch’s explanation of his behavior:
I cannot tell whether or not [your problems] are racially motivated or whether they are delusional, as you indicate....
The fact remains, to the outward appearance and to everybody who has observed the case or read about the case or knows anything about it, it appears to be a hatred crime, not a delusional crime.
(S.T. at 40.) The district court concluded that the racist nature of McAninch’s actions warranted an upward departure. McAninch contends that the court’s determination was erroneous because he was psychologically impaired when he cоmmitted the crimes in question.
A sentencing court may impose a sentence above the one prescribed by the guidelines if it finds that there was an aggravating cir
*1388
cumstance not adequately taken into consideration by applicable guidelines provisions. U.S.S.G. § 5K2.0 (1991);
Lira-Barraza,
Although the race of the defendant can never be a ground for departure,
see
U.S.S.G. § 5H1.10 (1991), courts have, on occasion, considered the race of the
victim
in assessing whether an upward adjustment is warranted under section 3A1.1 because of the victim’s particular vulnerability to racist acts.
See, e.g., United States v. Skillman,
• Next we сonsider the court’s factual finding that McAninch was racially motivated. The judge acknowledged McAninch’s psychological problems, but in the final analysis, she decided that his crime was not one of delusion, but of hatred. This finding was not clearly erroneous. The psychologist’s report submitted by McAninch in connection with his sentencing noted that McAninch had reported no hallucinations or delusions, that his cognitive processes were intact, that he was of above average to superior intelligence, and that there was no evidence of “a formal thought disorder.” (Certified Record 28 attachment at 6.) The acts charged in count nine, which included the mailing of a Ku Klux Klan oath and a photograph with a swastika
*1389
on it, embraced well-recognized forms of racial harassment.
Cf. United States v. McInnis,
Finally, there is no indication that the district court looked beyond the counts of conviction in determining that the facts supported a departure for racial motivation. McAninch’s statement to the court was a general explanation of his behavior that did not mention any of the dismissed counts; nor did the presentence report’s justification for this departure refer to dismissed counts. The court’s finding of racial animus was based on information properly before it.
4. Degree of departure
The government noted in its sentencing memorandum that a seven-point upward departure could be supported but did not press this position at the hearing. The district court adopted the presentence report’s recommendation and departed upward only three levels from McAninch’s offense level.
Ordinarily, we would have to remand where one of the court’s grounds for departure was invalid because we would not be able to review the reasonableness of the extent of the departure. The sentencing court is obliged to set forth “a reasoned explanation of the extent of the departure,” with appropriate analogies to the guidelines.
Lira-Barraza,
Nonetheless, under the harmless error rule established in
Williams v. United States,
— U.S. -,
By virtue of application note 2 to section 3A1.2, which provided for at least a three-point increase because the President was a victim, McAninch’s offense level could be no less than 16. The district court effectively imposed no increase for either of the other grounds for departure. In concluding that the error was harmless, we note that the government merely urges ■ affirmance and does not take the position on appeal that the court should have departed more. We therefore have no occasion to remand for reconsideration on that,basis.
See United States v. Turner,
McAninch’s sentence is AFFIRMED.
Notes
. The offense level was arrived at as follows: McAnineh was awarded 8 points for the mail fraud count (the base offense level of 6 plus 2 points for more than minimal planning), and 12 points for each of the threatening communications counts (the unadjusted base offense level). As these counts were nongroupable, the officer added 3 levels (one for each оf the three counts) to the highest offense level, 12, to arrive at 15. See U.S.S.G. § 3D1.4 (1991) (Determining the Combined Offense Level). From 15, the officer *1383 deducted 2 points for acceptance of responsibility, resulting in the offense level of 13.
. In doing so the court followed the recommendation of the probation department, which in turn was based on the government's sentencing memorandum.
. McAninch does not dispute this adjustment.
. McAninch does not challenge the propriety of the court’s restitution order to Nichol. The plea agreement provided that the court could "order restitution to any victim of the offense.” (Excerpts of Record (“E.R.”) 5 at 2.) At thе sentencing hearing, McAninch agreed to pay restitution to Nichol. Under 18 U.S.C. § 3663(a)(3), which went into effect before McAninch’s scheme of harassment came to an end, a court can order restitution in any criminal case to the extent agreed to by the parties to a plea agreement.
See
Pub.L. No. 101-647; § 2509, 104 Stat. 4789, 4863 (1990);
see also United States v. Angelica,
.McAninch does not contest the factual allegations of the dismissed fraud counts.
. Generally, we apply the version of the Sentencing Guidelines that was in effect at the time of sentencing, in this case, the 1991 guidelines.
United States v. Monroe,
. As described in the introduction to the Sentencing Guidelines, guided departures contain "suggestions” which represent "policy guidance" for the courts. U.S.S.G. ch. 1, pt. A, at 6 (1991) (citing section 2G1.1 as example of guided departure); see also U.S.S.G. § 1B1.7 (1991) (Significance of Commentary) (commentary may suggest circumstances which, in Commission’s view, warrant departure).
Application note 2 was recently amended so that it now represents a more typical guided departure. See supra note 5.
. We note that the first of the Lira-Barraza criteria is not strictly applicable to a guided departure such as this one where the Sentencing Commission has considered the circumstance in question and has provided expressly for departure.
. There are guidelines sections that address civil rights offenses, in which racial discrimination may be an element. See U.S.S.G. §§ 2H1.1-2H4.1 (1991). Though it does not differentiate among potential bases of discrimination, the introductory commentary to these sections explains that "[t]hc addition of two levels to the offense level applicable to the underlying offense in this subpart reflects the fact that the harm involved both the underlying conduct and activity intended to deprive a person of his civil rights.” U.S.S.G. ch. 2, pt. H introductory commentary (1991).
The civil rights guidelines did not apply in McAninch's case because he was not charged with civil rights violations.
. In arriving at this conclusion, we note that this court has upheld the imposition of criminal liability for conduct involving racist animus.
See,
e.g.,
United States
v.
Skillman,