Defendant was convicted of one count interstate communication of a threat to injure the person of another in violаtion of 18 U.S.C. § 875(c). Prior to the use of threatening language, the defendant sued the government in certain civil suits pro se for denial of employment preference under the Veterans Readjustment Act. Defendant had no success with these cases. At one point, defendant spoke to a William Pharo, Assistant United States Attorney, regarding his inability to obtain relief from the government. During the telephone conversation with Mr. Pharo, the defendant stated that it would be easy to get a gun and walk into a post office and start shooting. The defendant also stated that the government either gives the defendant money or people would get hurt. Finally, the defendant stated that the government will еither pay in money or blood. Mr. Pharo related this information to the grand jury who indicted the defendant under Section 875(c). The defendant was adjudged guilty by a jury, and the court sentenced the defendant to eighteen months in custody and three years’ supervised release. The court enhanced the defendant’s sentence three levels pursuant to a finding that Mr. Pharo was an “official victim” under § 3A1.2, Guidelines Manual, which allows enhаncing the sentence for victims with certain governmental status, including Assistant United States Attorneys.
The defendant assigns the following three errors. First, thе defendant asserts that the District Court erred in not granting a continuance based on Defendant’s incompeteney due to sleep deprivation. Second, the defendant states that the evidence at trial was insufficient to convict the defendant of the crimе charged. Third, the defendant states that the District Court erred in computing the offense level under the sentencing guidelines by adding three offense levels upon a finding that Mr. Pha-ro was an official victim.
For the reasons stated below, this Court AFFIRMS the trial court’s denial of continuance on the sleep deprivation issue, and further AFFIRMS on the sufficiency of evidence to convict the defendant. This Court REVERSES on the cоmputation of offense level, reducing the offense level by three and reducing defendant’s sentence to twelve months.
DISCUSSION
On the day of trial, defendant’s attorney requested that the trial be continued on the basis that his client suffered from sleep deprivation. The court asked to hear an offer of proof, whereupon defendant’s attorney stated that defendant Schroeder would testify that hе was not thinking clearly and was not comfortable going to trial in a sleep-deprived state. The trial court explained that it had suсcessive criminal cases each week of that month and that *1471 in order for the trial to be carried over defendant Schroeder would have to waive his right to a speedy trial. Defendant Schroeder advised his counsel that he would not waive his right to speedy trial. After further discussion, the court, assuming the offer of proof to be true, nevertheless denied the request for delay. At that point, defendаnt’s counsel asked the defendant if he would waive his right to a speedy trial, which defendant again refused. The Court concluded other рreliminary matters and asked: “Is there anything else you need to put on the record, Mr. Bredar?” [Attorney for defendant.] To which counsel fоr defendant responded: “Thank you, Your Honor. I believe that covers everything that needed to be discussed prior to the time the jury сomes up.” Tr. Yol. Ill, p. 32.
Defendant now claims that the trial court erred in denying a - continuance because the trial court failed tо place the defendant on the stand to determine his state of awareness. This Court disagrees. Defendant’s counsel had an opportunity to make a full and complete offer of proof regarding defendant’s alleged incompetency and failed tо do so. A trial court must hold a competency hearing if there is reasonable cause to believe that the defendant is impаired to the extent that he is unable to understand the nature and consequences of the proceedings and to assist propеrly in his defense.
United States v. Crews,
Defendant's second assignment of error that the evidence at trial was insufficient to convict the defendant of the crime charged was not urged during oral argument. Nevertheless, this Court observes that the jury found the evidence to state a sufficiently definite threat to meet the requirements of the statute. Upon review оf the record, we see no error in this finding by the jury.
Finally, the defendant states that the trial court erred in raising the level of offense from 10 to 13 by finding thаt Mr. Pharo was a victim under § 3A1.2 of the Guidelines Manual. The defendant requested the sentence be reduced from eighteen months to twelve months refleсting a level 10 offense. This Court agrees with defendant’s position.
Nothing in the record indicates that Mr. Pharo received a threat direсted towards his person. During oral argument, the government urged that the receiver of a threat should be deemed a victim whether or not the receiver was the object of the threat. This Court disagrees. In order to find an official victim for purposes of sentencing, this Cоurt finds that the victim must be one who is the object of a threat under these -facts. Therefore, this Court REVERSES the trial court’s finding that Mr. Pharo was an offiсial victim for purposes of sentencing.
Accordingly, this Court AFFIRMS the trial court’s denial of continuance and AFFIRMS the sufficiency of evidence to convict the defendant. This Court REVERSES the finding that Mr. Pharo was an official victim, reducing defendant’s sen *1472 tence from eighteen months to twelve months.