UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Robert SPRING, Defendant-Appellant.
No. 01-4496.
United States Court of Appeals, Fourth Circuit.
Argued June 6, 2002. Decided Sept. 26, 2002.
305 F.3d 276
IV.
In summary, our de novo review of Reliance‘s denial of Gallagher‘s claim for disability benefits reveals that Gallagher failed to submit, as required under the Plan, objectively satisfactory proof of a disability that made him incapable of performing each and every material duty of his occupation. We therefore reverse the district court‘s grant of summary judgment in Gallagher‘s favor and the award of attorney‘s fees, and remand for entry of judgment in Reliance‘s favor.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Before WIDENER and WILKINS, Circuit Judges, and FREDERICK P. STAMP, JR., United States District Judge for the Northern District of West Virginia, sitting by designation.
Affirmed in part and vacated and remanded in part by published opinion. Judge WILKINS wrote the majority opinion. Judge WIDENER wrote an opinion concurring in part and dissenting in part. Judge STAMP wrote an opinion concurring in part and dissenting in part.
OPINION
WILKINS, Circuit Judge.
Kenneth Robert Spring appeals his sentence for making unlawful threats, see
I.
In 1999, Spring completed a prison sentence for a prior federal offense and began serving a term of supervised release. Jef-
While in prison, Spring attempted to mail Naber a letter (“the Letter“) threatening to kill him along with his wife and daughter, the judge who had revoked Spring‘s supervised release, Chelsea Clinton, Hillary Rodham Clinton, and “every cop I can get my hand on.” J.A. 29 (internal quotation marks omitted). As a result of the Letter, Spring was charged with threatening to murder a federal law enforcement officer, see
At trial, Spring‘s former cellmate, Clarence Sargent, testified that Spring said he “resented his probation officer so much that he wanted to do something to him.” J.A. 253. Sargent explained:
Well, he didn‘t want to get out of jail, but if he did get out of jail he figured that he could do something to him, hurt him, hurt his family or, you know, to get put back in jail and it would all equal out, you know. That‘s his thinking, or that‘s how he related to me that he would get justice by retaliating himself.
Id. Another inmate, Michael Williams, recounted similar hostile comments about Naber:
Q. And what did Mr. Spring tell you about his probation officer?
A. That he never wanted ... to get out and be underneath the same probation officer. He didn‘t like him.
Q. Did he tell you why he didn‘t like his probation officer?
A. That he set him up. That his probation officer set him up and that‘s why he came back to prison and always harassing him and stuff.
. . . .
Q. Did he tell you anything else about his dislike of his probation officer?
A. It was bad enough where he wanted to kill him, you know.
Q. Did he say that?
A. Yes, Ma‘am.
Id. at 301; see id. at 302-03 (Williams testifying that he observed Spring writing down plans to rape and kill Naber‘s children). Williams further testified that Spring inquired about buying a handgun on the black market.
Spring was convicted on all counts. The ensuing presentence report (PSR) assigned Spring a total offense level of 20, based in part on a two-level enhancement for making more than two threats. See
The PSR also placed Spring in Criminal History Category (CHC) IV but noted that an upward departure might be appropriate “[b]ased upon the defendant‘s three prior convictions for similar conduct.” J.A. 372. Neither this possibility nor any other ground for departure was mentioned during the proceedings concerning objections to the PSR, Spring‘s allocution, or final arguments by counsel. Nevertheless, when the district court announced its judgment, it stated that CHC IV “fails to capture the likelihood that [Spring] will commit further crimes,” id. at 337, and departed upward to CHC V. Immediately
II.
Spring first challenges the two-level enhancement for making more than two threats. He asserts that his statements to his fellow inmates were not threats within the purview of
Section 115(a)(1) prohibits, inter alia, making threats against certain federal officials to influence their future actions or to retaliate against them for past actions. According to Spring, this offense logically requires that the threats be communicated to their intended targets, as a threat cannot affect its victim unless the victim is aware of it. See United States v. Fenton, 30 F.Supp.2d 520, 528-30 (W.D.Pa.1998). But see United States v. Martin, 163 F.3d 1212, 1216-17 (10th Cir.1998); United States v. Snelenberger, 24 F.3d 799, 803 (6th Cir.1994). We need not decide this question, however, because the relevant provision here is
Section 2A6.1 governs sentencing for crimes involving threats or harassing communications. Under
The contours of this generic definition have never been expressly delineated, but the cases provide much guidance. For example, this court has held that in order to avoid punishing constitutionally protected speech not amounting to a “true threat,” the prosecution must prove that “an ordinary, reasonable [person] who is familiar with the context of the [communication] would interpret it as a threat of injury.” United States v. Maxton, 940 F.2d 103, 106 (4th Cir.1991) (internal quotation marks omitted). We have also held that a statement may qualify as a threat even if it is never communicated to the victim. See United States v. Patillo, 431 F.2d 293, 295-96 (4th Cir.1970) (holding that statements to co-worker expressing desire to kill President constituted true threats for purposes of
We do not hold that the failure to communicate a threat to its intended victim is entirely irrelevant. In a particular case, whether a threat was communicated to the victim may affect whether the threat could reasonably be perceived as an expression of genuine intent to inflict injury. Cf. Patillo, 431 F.2d at 297-98 (distinguishing among threats against President based on whether they were transmitted (or were intended to be transmitted) to President or to third party). Or, as Spring argues with respect to
It follows that Spring‘s statements to Sargent and Williams may be treated as threats even though Spring did not communicate them or intend to communicate them to Naber. Although the statements might not support separate convictions under
III.
Spring next contends that the district court erred in departing upward from CHC IV to CHC V without giving prior notice of its intent to do so. We agree.
At the outset, we have some question about whether this claim was properly preserved. Spring could not have objected to the departure prior to the imposition of sentence except by interrupting the district court, a practice we do not encourage. After the court announced its sentence, however, Spring could have objected to the lack of opportunity to comment, either at the hearing itself or in a subsequent motion to correct the sentence pursuant to
It is not necessary for us to resolve this issue. If there was no proper objection, either at the hearing or in a post-hearing motion, then this claim must be reviewed for plain error. See United States v. Fant, 974 F.2d 559, 562 (4th Cir.1992). To establish plain error, Spring
Initially, we conclude that error occurred. A district court “must afford counsel for the defendant and for the Government an opportunity to comment on ... matters relating to the appropriate sentence.”
There was no defect in pre-hearing notice here; the PSR provided notice that a departure to a higher CHC might be considered at the sentencing hearing. See Burns v. United States, 501 U.S. 129, 138, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991). This notice informed counsel that they needed to prepare arguments on this issue, but not that they needed to present them. Although Spring could have offered his arguments preemptively, it is fully understandable why his attorney would not want to call attention to the possibility of an upward departure. See Burns, 501 U.S. at 137. Moreover, it would not serve the interests of judicial economy to encourage counsel to comment on all potential grounds for departure identified in the PSR, as many ultimately have no bearing on the sentence. Cf. id. (stating that requiring counsel to anticipate all possible grounds for departure that might be considered would result in “random and wasteful” examination of issues). Here, for example, the PSR noted four possible grounds for departure; if Spring had offered reasons why none of these grounds should apply, his comments regarding three of them would surely have been a waste of time.
By the time the parties received notice that an upward departure was under consideration, the court had already made a final ruling on the issue. The court did not solicit arguments from counsel before announcing this ruling. Thus, the sole option left to Spring was to request reconsideration of a decision that had already been announced and incorporated in a judgment. This is not equivalent to proper adversarial process before a decision is reached; on the contrary, once a sentence is announced, both the specific constrictions of
The remaining three requirements of the plain error test are also satisfied here. The error was plain because the decision to depart upward without comment from the parties violated the clear direction of
In light of these considerations, we vacate Spring‘s sentence and remand to allow the district court to consider an upward departure after hearing argument from the parties. We take no position regarding the merits of such a departure.
IV.
For the foregoing reasons, the judgment of the district court is affirmed in part, vacated in part, and remanded for further proceedings.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
WIDENER, Circuit Judge, concurring in part and dissenting in part:
I concur in the majority opinion as it relates to the two-level enhancement of Spring‘s offense level under
STAMP, District Judge, concurring in part and dissenting in part:
While I concur with the ruling expressed in Section III of the majority opinion regarding the lack of adequate notice leading to the district court‘s upward departure, I respectfully dissent from the majority view that affirms the two-level enhancement of Spring‘s offense level under
The record shows that none of these statements were communicated to Probation Officer Naber. While this Court has held in certain cases that a statement may constitute a threat even if it is not communicated, Judge Wilkins correctly notes that the majority opinion in this case does not “hold that the failure to communicate a threat to its intended victim is entirely irrelevant. In a particular case, whether the threat was communicated to the victim may affect whether the threat could reasonably be perceived as an expression of genuine intent to inflict injury.” I agree with that statement but dissent because I believe that under the particular facts in this case, a reasonable person would not conclude that Spring‘s comments to his fellow inmates or the statements contained on the typewriter tape or the back of the prison form, although reprehensible, were expressions of genuine intent to inflict injury upon the intended victim. Here, there was no connection between the inmates and the intended victim. Further, there was no request by Spring, expressed or implied, that any inmate communicate, either directly or indirectly, the statements to the intended victim. See United States v. Bellrichard, 779 F.Supp. 454 (D.Minn.1991), aff‘d, 994 F.2d 1318 (8th Cir.1993). Consequently, I do not believe that Spring‘s statements to or found by the inmates can be construed to be “true threats” as required under Watts v. Unit-ed States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969). Spring‘s statements to the three inmates and the message on the tape or paper would not, in my opinion, cause a reasonable person to believe that they were conveyed to the inmates to effect some change or to achieve some goal through intimidation. See United States v. Alkhabaz, 104 F.3d 1492 (6th Cir.1997); United States v. Fenton, 30 F.Supp.2d 520 (W.D.Pa.1998). At least there is insufficient evidence of such intention in the record. J.A. 219-268. Indeed, there is no evidence that Spring intended that the tape or paper be seen by the inmates. Stated another way, Spring‘s statements testified to by the three prison inmates differ dramatically from the statements contained in the letter from Spring addressed to “Jeff Nabers, U.S. Probation” and intercepted on May 22, 2000 by the Federal Bureau of Prisons’ personnel which letter was the basis of the three-count indictment against Spring and upon which he was convicted, and which statements were definitely true threats. J.A. 355-56.