This is а single-issue sentencing appeal wherein a defendant who pled guilty to a charge of threatening a federal officer, in violation of 18 U.S.C. § 115(a), (b)(4), challenges the district court’s 6-point adjustment in its computation of defendant’s total offense level. The court made the upward adjustment because it found that the defendant had engaged in conduct “evidencing an intent to carry out [the] threat,” U.S.S.G. § 2A6.1(b)(l), by brandishing a screwdriver during the crime’s commission.
The circumstances are as follows. On September 28, 1988, defendant-appellant Manuel Jimenez-Otero (Jimenez) was charged with having verbally threatened to murder a postal service employeе engaged in the performance of his official duties. Subsequently, a non-binding plea agreement was entered, Fed.R.Crim.P. 11(e)(1)(B), in which the government agreed to reduce the charge from “threat to murder” to “threat to assault.” Jimenez agreed to plead guilty to the reduced charge. The parties stipulated that they beliеved the applicable sentencing guideline should be computed at a base offense level of 12, U.S.S.G. § 2A6.1(a), to be decreased by 4 levels since defendant’s conduct involved a single instance evidencing littlе or no deliberation, U.S.S.G. § 2A6.1(b)(2), and further reduced by 2 more levels for acceptance of responsibility, U.S.S.G. § 3El.l(a). (A base offense level of 6 and a criminal history category of I would produce a sentencing rangе of 0 to 6 months).
Defendant pled guilty to the reduced charge. Pursuant to standard convention, see Fed.R.Crim.P. 32(c), the cоurt ordered a presentence report (PSI Report). The Report did not recommend the downward adjustments foreseen by the parties. Rather, the probation officer suggested an increase of 6 levels on the ground that the defendant had brandished a dangerous weapon — a screwdriver — during the commission of the crime 1 Inasmuch as this conduct called for a 6-level upward adjustment, see infra, the probation officer advisеd computing the sentence at a total offense level of 18, resulting in a guideline imprisonment range of 27-33 mоnths. The Report concluded with the opinion that there was no information that would warrant departure from the guidelines.
At the sentencing hearing, the court granted defendant a 2-point reduction for acceptance of responsibility (not envisioned by the probation officer) but increased the base offensе level by 6 because the “defendant engaged in conduct evidencing an intent to carry out a threat ... [by] brаndishing] a dangerous weapon.” See U.S. S.G. § 2A6.1(b)(l). The resultant total offense level (16) produced a 21-27 month spread. The court sentenced defendant at the nadir of the guideline range, 21 months in prison.
Jimenez appeals on thе basis that the district court incorrectly applied the guidelines.
See
18 U.S.C. § 3742(a)(2). We review the district court’s fact-based determination regarding defendant’s purpose in holding the screwdriver only for clear error.
See
18 U.S.C. § 3742(e) (court of appeals “shall accept the findings of fact of the district court unless they are clearly errоneous and shall give due deference to the district court’s application of the guidelines to the fаcts”);
United States v. Royer,
Nor can we say that the рlea agreement made a dispositive difference. Appellant concedes that the cоlloquy ordained under Fed.R.Crim.P. 11(c) contained all of the required advice, warnings, and caveats. Moreovеr, the law is clear that, where a non-binding plea agreement is struck, the district court is constrained neither by thе United States Attorney’s sentencing recommendation, see U.S.S.G. § 6Bl.l(b) (policy statement), nor by stipulations of fact aсcompanying the plea contract, U.S.S.G. § 6B1.4(d) (policy statement).
Defendant also argues that there were “mitigating circumstances” such that the court should have departed downward in imposing sentence. We have held before, and today reaffirm, that a criminal defendant cannot normally ground an appeal on such a theory.
See United States v. Pighetti,
We need go no further. Although the district judge might havе elected to view the scenario more congenially to defendant, she was not obliged to do sо. Because the court’s recension of the evidence was plausible, we cannot say that its conclusions were unfounded or clearly erroneous. The judgment of conviction and the concomitant sentence are, therefore, Affirmed.
Notes
. Defendant did not dispute that he was holding the screwdriver at the time. He arguеd instead that it was part of his usual equipage as a maintenance man and that he was not carrying it in a threatening manner.