UNITED STATES of America, Plaintiff-Appellee, v. Todd Allen SPENCER, a/k/a Todd Alan Spencer, Defendant-Appellant.
No. 16-4026
United States Court of Appeals, Fourth Circuit.
February 9, 2017
Argued: December 8, 2016
III.
Gray did not exercise due diligence in discovering his blood type and the facts contained in the Zain III report. His petition is thus untimely under
Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.
Todd Allen Spencer pleaded guilty to mailing a threatening letter in violation of
Spencer now contends that his sentence was procedurally and substantively unreasonable. For the reasons that follow, we affirm.
I.
On September 12, 2013, the clerk‘s office of the federal courthouse in Norfolk, Virginia received a letter from an inmate at Chesapeake City Jail identified as “T.A. Spencer.” The letter was covered in white powder and read, in part, as follows:
You never know when it can happen! The very letter you hold may indeed be the last you hold. This letter may contain on it what takes your last breath. Who knows? Only time will tell. Good luck to you.
....
Should you run? Should you stay? Who do you call to make it all go away? Are you already infected with the pain? What do you do? Is there anything to gain? Only time will tell.
J.A. 14-15. The clerk who opened the letter was “disconcerted and afraid“; at the instruction of the U.S. Marshals she locked herself alone—with the letter—in the mailroom until inspectors arrived. J.A. 15. In the course of the investigation, one inspector visited Spencer at Chesapeake City Jail, where he admitted to sending the letter and explained that the powder was dried toothpaste. He had included the powder “to enhance the effect of the letter in order to put fear into the reader that the white powdery substance was some type of poison.” Id.
On October 2, 2014, Spencer pleaded guilty to sending a threatening communication in violation of
At the sentencing hearing on January 13, 2015, the district court overruled Spencer‘s objection to the six-level enhancement and sentenced him to 46 months’ imprisonment. The district court expressed concern about the “devastat[ing]” impact on the victim: “One can‘t forget it. It‘s like war.... You can‘t forget what people do when they face the ultimate.” J.A. 46, 59. Given the “very, very serious” nature of the offense, the court observed that the Guidelines were “very kind” and therefore imposed a sentence at the top of the advisory range. J.A. 60-61.
On appeal, this court found that the district court erred in applying the six-level enhancement. United States v. Spencer, 628 Fed.Appx. 867 (4th Cir. 2015). The court determined that Spencer‘s threat did not qualify for the
Taking these “factors into consideration and the fact that [Spencer] ha[s] successfully appealed the prior sentence,” the court decided to “upwardly depart” and imposed a sentence of 45 months. J.A. 128. The district court reasoned that the sentence was “fair under the circumstances” and one that it “would have given him if there had never been any [Guidelines.]” J.A. 133. Although the court maintained that it was “strictly an upward departure,” id. on the Statement of Reasons for the judgment it checked the box for a variance sentence and cited the
II.
We review a sentence for both procedural and substantive reasonableness. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We first ensure that the district court committed no significant procedural error, such as “improperly calculating the Guidelines range, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id. If the sentence is procedurally sound, we then consider its substantive reasonableness under a “deferential abuse-of-discretion standard.” Id. at 52, 128 S.Ct. 586. While a district court‘s explanation for the sentence must “support the degree of the variance,” id. at 50, 128 S.Ct. 586, it need not find “extraordinary circumstances” to justify a deviation from the Guidelines, id. at 47, 128 S.Ct. 586. Rather, because district courts are “in a superior position to find facts and judge their import,” all sentencing decisions—“whether inside, just outside, or significantly outside the Guidelines range“—are entitled to “due deference.” Id. at 41, 51, 128 S.Ct. 586.
With these principles in mind, we turn to Spencer‘s procedural and substantive challenges to the sentence.
A.
Spencer first contends that the district court erred by failing to provide advance notice of its intention to depart from the advisory Guidelines range. See
For starters, the boundary between departures and variances is often murky, and this case especially confounds the distinction. Because the circumstances surrounding threats vary substantially,
Nonetheless, a measure of formality must mark the sentencing procedure, and the district court was simply too casual about the course it intended to undertake. At the resentencing hearing the court repeatedly stated that it would would “upwardly depart,” see J.A. 128, 133-35, but its reasoning—resting on the
We conclude, nonetheless, that Spencer cannot establish that any lack of notice affected his substantial rights. Because Spencer did not raise the issue in the district court, we review for plain error.
Spencer summarily asserts that he was prejudiced by the lack of formal notice, but the district court repeatedly telegraphed that it might deviate from the Guidelines. Throughout the original sentencing hearing, the letter‘s effect on the victim was front and center. See J.A. 42-43, 46-47, 52, 54, 58-59. And it was no secret that the court was troubled by the “very, very serious” nature of the offense: It stressed the need to provide “just punishment” and “adequate deterrence” and remarked that the initial Guidelines range was “very kind to [Spencer].” J.A. 59-61. Accordingly, when the removal of the
B.
Spencer also asserts that his 45-month sentence is substantively unreasonable. His substantive (or hybrid procedural/substantive) argument is essentially that the sentence was too much. In particular, he insists that the severity of the sentence rested on improper sentencing factors and
As an initial matter, we simply do not find that the district court rested its sentence on improper grounds. Pursuant to our mandate, the court made clear that it was not applying any additional enhancements at resentencing. Rather, the district court based its sentence on the intended effect on the victim, explaining that the reduced Guidelines range was “totally inadequate” given the serious nature of a threat accompanied by ostensible poison. J.A. 118. In other words, the court tailored its sentence in light of traditional
The inferences drawn by the district court here lay within the bounds of its discretion. The trial court, to be sure, used some vivid rhetoric in explaining the sentence, surmising that the victim “thought somebody had sentenced her to death,” J.A. 127, and “it‘s something one can‘t forget.... It‘s like war,” J.A. 59. But these expressions were hardly divorced from the facts of Spencer‘s case. After all, Spencer had sent a letter that threatened death. To compound the victim‘s horror, he included with the letter dried toothpaste that resembled anthrax. The U.S. Marshals took the threat seriously and ordered the victim to lock herself in a confined space. And she waited alone with the potential toxin until the authorities could determine its true nature. From these facts, the rest are reasonable inferences that could be drawn by anyone confronted with a “prank” that was distinctly unfunny.
We are mindful that we have charged district courts to explain the basis for their sentence. See United States v. Carter, 564 F.3d 325, 328-29 (4th Cir. 2009) (instructing that the district court must “justify [its] sentence with an individualized rationale“); see also Gall, 552 U.S. at 50, 128 S.Ct. 586 (advising that the judge “must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing“). But there is also a balance to be struck. We want trial judges to offer a “rationale tailored to the particular case at hand,” Carter, 564 F.3d at 330, but we also take seriously the Supreme Court‘s injunction that those same sentencing rationales are in turn entitled to “due deference” on appeal, Gall, 552 U.S. at 51, 128 S.Ct. 586. The district court‘s expressions of dismay at Spencer‘s actions were thus not impermissible so long as they bore upon the
Spencer understandably objects to the increased sentence. But he acknowledged that the court “has the right to impose a sentence it deems sufficient but not greater than necessary.” J.A. 120. Although Spencer contends that there was no substantial disruption of government functions here, see
III.
The judgment of the district court is accordingly
AFFIRMED.
UNITED STATES of America EX REL. Brianna MICHAELS and Amy Whitesides, Plaintiffs-Appellants, v. AGAPE SENIOR COMMUNITY, INC.; Agape Senior Primary Care, Inc.; Agape Senior Services, Inc.; Agape Senior, LLC; Agape Management Service, Inc.; Agape Community Hospice, Inc.; Agape Nursing and Rehabilitation Center, Inc., d/b/a Agape Rehabilitation of Rock Hill, a/k/a Agape Senior Post Acute Care Center-Rock Hill, a/k/a Ebenezer Senior Services, LLC; Agape Senior Foundation, Inc.; Agape Community Hospice of Anderson, Inc.; Agape Hospice of the Piedmont, Inc.; Agape Community Hospice of the Grand Strand, Inc.; Agape Community Hospice of the Pee Dee, Inc.; Agape Community Hospice of the Upstate, Inc.; Agape Hospice House of Horry County, Inc.; Agape Hospice House of Laurens, LLC; Agape Hospice House of the Low Country, Inc.; Agape Hospice House of the Piedmont, Inc.; Agape Rehabilitation of Conway, Inc.; Agape Senior Services Foundation, Inc.; Agape Therapy, Inc.; Agape Hospice; Hospice Piedmont; Hospice Rock Hill; Carolinas Community Hospice, Inc., Defendants-Appellees, v. United States of America, Party-in-Interest-Appellee.
SavaSeniorCare Administrative Services, LLC; American Health Care Association; American Hospital Association; Catholic Health Association of the United States, Amici Supporting Defendants-Appellees.
United States of America ex rel. Brianna Michaels and Amy Whitesides, Plaintiffs, v. Agape Senior Community, Inc.; Agape Senior Primary Care, Inc.; Agape Senior Services, Inc.; Agape Senior, LLC; Agape Community Hospice, Inc.; Agape Nursing and Rehabilitation Center, Inc., d/b/a Agape Rehabilitation of Rock Hill, a/k/a Agape Senior Post Acute Care Center-Rock Hill, a/k/a Ebenezer Senior Services, LLC;