UNITED STATES оf America, Plaintiff-Appellee, v. William A. WHITE, Defendant-Appellant.
No. 14-4375.
United States Court of Appeals, Fourth Circuit.
Argued: Oct. 29, 2015. Decided: Jan. 7, 2016.
810 F.3d 212
Before MOTZ, KING, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge THACKER wrote the opinion, in which Judge MOTZ and Judge KING joined.
THACKER, Circuit Judge:
William White (“Appellant“) believed his ex-wife (“MW“) owed him money. When she refused to pay, he sent her a series of e-mails, four of which threatened violence if MW did not meet his demands. MW reported the threats to the authorities, and Appellant was eventually charged in a four-count indictment with violating
Appellant now asks us to reverse his conviction and vacate his sentence, assigning a number of errors. He maintains he could not have intended to extort MW because she owed him a legitimate debt and alleges more generally that the district court misinstructed the jury on the mens rea requirements for conviction pursuant to
I.
A.
This is not Appellant‘s first brush with the law for making threats, and his prior misadventures set the stage for this case. In 2010, he was charged in the Western District of Virginia for making a threatening telephone call to a university administrator and sending intimidating letters to several tenants in Roanoke who had filed a fair housing complaint against their landlord. A jury convicted him, and the district court imposed a 30-month term of imprisonment.
While he was incarcerated, Appellant‘s relationship with his now-ex-wife, MW, deteriorated. They eventually separated and MW agreed1 to pay alimony to Appellant. She made the first two payments in March and April of 2012. Around the same time, in March 2012, we upheld Appellant‘s conviction on appeal, but remanded the case for resentencing. See United States v. White, 670 F.3d 498, 502-03, 515-16 (4th Cir.2012).
Appellant was out of prison and on supervised release by that time, so the district court set a resentencing hearing for May 14, 2012. Appellant didn‘t show. Instead, he fled, absconding to Mexico with an acquaintance named Sabrina Gnos. When MW learned Appellant was on the lam, she stopped making the alimony payments, at least in part because she feared that doing so would amount to aiding a fugitive. Appellant‘s subsequent attempts to persuade MW to resume making the payments form the basis of the indictment in this case.
Appellant sent MW the following messages, which form Counts I, II, and III of the indictment at issue here, between May 27th and May 29th:
May 27, 2012 (Count I): I‘ve had an offer from a loan shark in Roanoke to split the money you owe me 50/50. He will send someone to beat your ass if you don‘t pay, and I will give him half for that service. I would rather we found some way to peacefully work things out so I had continuing contact with my daughter and you faced up to your obligations to me. If I don‘t hear from you soon, I will just let the guy know you owe me $500 and let him take
care of it. If you won‘t face up to what you‘ve done, someone has to hold you accountable. May 28, 2012 (Count II): If I were to allow myself to be arrested, you have proven that you will take [our daughter] from me forever and that the federal government will assist you with this. So, rather than be arrested, I will remain free, and if you attempt you are going to have the living shit beat out of you—to start with. You don‘t seem to have any sense of right or wrong and only seem to respond to the threat of legal or physical force. The things you do uрset a lot of people, and I have a lot of friends who think nothing of taking out on you the things you have done to me.
May 29, 2012 (Count III): Later on someone will be in touch with you. You owe me two alimony payments and $85 in fees, which is being called $500. I would strongly recommend you have the $500 when you are contacted—or you will probably be hospitalized.
J.A. 17-18.2
Appellant also asked Gnos for help finding someone in Virginia to pressure MW into making the payments. On June 2, 2012, Gnos, who was by that time cooperating with the Federal Bureau of Investigation (“FBI“), recorded the following conversation:
GNOS: Ah, you said you wanted, you wanted to start off with a phone call and see how that works. Are you ...
APPELLANT: I think that‘s probably best, um, I mean, that‘s easiest. You said you didn‘t know anybody that would actually go there and just tell her to give them the fucking money.
J.A. 730. The following day brought more of the same:
APPELLANT: I assume you‘re still, ah, working on the deal with my ex-wife up there.
GNOS: Yeah, it‘s not that easy.
APPELLANT: Honestly, it is really easy. Right now you just need to find someone to get on the phone and pick up, pick up a throw phone and call her up and say you‘re gonna pay the fucking money or I‘m gonna fuck you up.
Id. at 733. Appellant followed up again on June 4th:
APPELLANT: So, anyways, but, yeah, ah, well, I just thought I‘d, ah, check in with you. Have you got any solution for getting some money out of my ex-wife?
GNOS: No I‘ve been sick. I haven‘t been talking to anybody on the phone.
APPELLANT: All right, well, it‘s kind of important.... I‘m not kidding. You can probably pay somebody ten bucks to just scream some fucking obscenities into the phone and get what she, get five hundred bucks out of her. But I do need somebody to lean on her and get that money, so, if you can‘t do it, I got to talk to somebody else up there.
Id. at 737.
Finally, on June 7, 2012, after Gnos failed to find a solution, the indictment alleges Appellant sent MW a final warning, charged in Count IV:
June 7, 2012 (Count IV): I would very much like to avoid an incident in which something violent potentially happens to you around the baby. Will you make some agreement to settle the issues with the money and with my access to my daughter? If I don‘t hear from you within 24 hours, then what follows will
be on you—I‘ve done everything I can to work this out peacefully.
J.A. 18.
The following day, June 8, 2012, Appellant was arrested in Mexico and eventually deported to the United States. On February 7, 2013, he was indicted in the Western District of Virginia and charged with four counts of violating
B.
Before trial, Appellant moved to dismiss the indictment, arguing that it failed as a matter of law because he had a legal right to the alimony payments he demanded. The district court denied the motion. At the Government‘s request, and over Appellant‘s objection, the case proceeded to trial before an anonymous jury.
At trial, Gnos testified in detail about Appellant‘s activities during his escape to Mexico. She noted that Appellant frequently used a Toshiba laptop during the trip and that Appellant explained he was using software to disguise the computer‘s Internet Protocol (“IP“) address. Gnos also testified that, after she returned to Virginia, she continued to communicate with Appellant, check his mail, and wire him money. At her father‘s urging, Gnos explained, she eventually contacted authorities and agreed to record her telephone conversations with Appellant. The Government played several of those recordings for the jury, including the clips from early June, described above, in which Appellant repeatedly asked Gnos to find someone to lean on MW so that she would resume making the disputed alimony payments.
The court also received into evidence a handwritten note Gnos made of a call with Appellant, which had not been recorded. According to Gnos‘s note, the tenor of the call was much like the others; Appellant told her, “OK—if phone call dont [sic] work—we will have to have someone fuck her up!” J.A. 727.
Other testimony implicated Appellant as the author of the e-mails charged in the indictment. FBI Agent David Church testified that the e-mails to MW originated from an e-mail address, dhyphen@yahoo.com, that Appellant had previously used. Church also explained that Appellant bragged on his Facebook account of using an IP anonymizer much like the technology Gnos testified Appellant had described to her. And Church testified that Appellant‘s Facebook account registered activity very near in time to the moments when threatening e-mails were sent to MW, and that both the Facebook activity and e-mails originated from the same (albeit anonymized) IP address.
MW testified that the e-mails made her fearful for her safety and the safety of her daughter. For example, she testified that, after receiving the May 27, 2012 e-mail, she went to the local police station to ask for a protective order. She also shared the e-mails with the United States Marshals Service and the FBI, and took care not to travel alone whenever possible until Appellant had been captured.
Appellant took the stand in his own defense. He testified he did not send MW any of the e-mails identified in the indictment, suggesting instead that Gnos was responsible. The jury deliberated for just over three hours, but ultimately rejected Appellant‘s version of events, finding him guilty of violating
The Probation Department thereafter prepared a Presentence Report (“PSR“) that recommended a sentence of 92-115 months, based on a total offense level of 26 and a criminal history category of IV. Appellant‘s offense level was enhanced by two points for obstruction of justice as a result of his trial testimony, and the PSR opined that Appellant‘s counts of conviction were not subject to grouping pursuant to
II.
Appellant raises several issues on appeal, attacking each stage of his prosecution. The heart of his appeal, however, concerns the legal requirements for conviction pursuant to
Sections
A.
Section 875(c)
1.
We have previously held
In Elonis the Supreme Court asked “whether [
Turning to
Thus, Elonis abrogates our prior holding that liability under
What that means, in this circuit after Elonis, is that a conviction pursuant to
Here, by contrast, the district court (which did not have the benefit of the Court‘s decision in Elonis) instructed the jury that it could convict Appellant pursuant to
2.
The Government nevertheless maintains the error was harmless. We agree.
The Supreme Court has “often applied harmless-error analysis to cases involving improper instructions,” Neder v. United States, 527 U.S. 1, 9, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), as have we, see United States v. Brown, 202 F.3d 691, 699 (4th Cir.2000). “[O]ur task is to determine whether the guilty verdict actually rendered [at] trial was surely unattributable to the error.” Brown, 202 F.3d at 699 (internal quotation marks omitted). To do so, we ask whether it is “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error[.]” Neder, 527 U.S. at 18, 119 S.Ct. 1827.
Where, as here, the district court declines to give an instruction “not required under precedent that the Supreme Court later supersede[s],” United States v. Ramos-Cruz, 667 F.3d 487, 496 (4th Cir. 2012), we engage in two specific inquiries to test the harmlessness of the omission. Under the first, we will find an erroneous instruction harmless if we “conclude[ ] beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence.” Neder, 527 U.S. at 17, 119 S.Ct. 1827. Under the second, in cases where the defendant has contested the omitted element, we ask “whether the record contains evidence that could rationally lead to a contrary finding with respect to that omitted element. If not, then the error was harmless. If so, however, reversal is necessary.” Ramos-Cruz, 667 F.3d at 496 (internal quotation marks and citations omitted).
The omitted issue in this case is whether Appellant sent the e-mail charged in Count II of the indictment for the purpose of issuing a threat, with the knowledge that the communication would be viewed as a threat, or (perhaps) with reckless disregard that the e-mail would be perceived as threatening.3 Appellant did
We acknowledge that appellate courts are ill-equipped to “evaluate states of mind based on a cold record.” See Houston, 792 F.3d at 669. And we appreciate that, in many threat cases, the question of intent will be far from clear, even where it is undisputed that the defendant transmitted the communication and the message itself contains harsh and inflammatory language. In Elonis, for example, the defendant posted threatening language on his own Facebook page with disclaimers that the posts were rap lyrics, suggesting that they may have been created for personal, therapeutic, rather than malevolent, reasons. See id. at 2004-05. Similarly, the Sixth Circuit recently declined to find harmless error in a
But this case, and the message at issue, give rise to no comparably reasonable competing inferences. The jury found that Appellant sent the e-mail constituting Count II directly to MW, the intended recipient. And the language used—“you are going to have the living shit beat out of you—to start with“—was direct and declarative, not circumspect or hypothetical. Appellant offered no other explanation for the message. And in his contemporаneous conversations with Gnos, he explained his desire to scare MW into resuming the alimony payments.
“In many cases, the predicate facts conclusively establish intent, so that no rational jury could find that the defendant committed the relevant criminal act but did not intend to cause injury.” Pope v. Illinois, 481 U.S. 497, 503, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987) (internal quotation marks omitted). That holds true here. Accordingly, because the record contains no evidence that could rationally lead a jury to conclude that the sender of the Count II e-mail intended to do anything other than threaten the recipient, and because the jury concluded beyond a reasonable doubt that Appellant was indeed the sender, the district court‘s instructional error was harmless.
B.
Section 875(b)
We now turn to Appellant‘s three
1.
Section 875 does not define “intent to extort” or even the term “extortion.” See United States v. Coss, 677 F.3d 278, 283-84 (6th Cir.2012) (“The precise meaning of ‘extort’ ... in the context of
Incorporating this understanding, we hold that the intent to extort for purposes of
The Ninth Circuit‘s decision in United States v. Stewart, 420 F.3d 1007 (2005), illustrates well the principle we have just articulatеd. There the court considered whether
The district court‘s instruction sufficiently captured this concept. As the cоurt explained, to convict Appellant pursuant to
2.
Appellant‘s remaining argument—that he could not have intended to extort MW because he had a “claim of right” to the alimony payments—is similarly unavailing. As we have now said, the question is whether Appellant intended to procure something of value from MW through the use of a wrongful threat to kidnap or injure. The key word is “wrongful.”
Appellant‘s argument is that it is not wrongful to demand money one is rightfully owed. There are situations where that may well be true. In extortion cases under the Hobbs Act, for example, courts have held “a defendant cannot be found guilty of wrongfully obtaining property through the use of a legitimate economic threat if he has a claim of right to the property.” See, e.g., United States v. Sturm, 870 F.2d 769, 773 (1st Cir.1989) (emphasis supplied). Instead, “the use of legitimate economic threats to obtain property is wrongful only if the defendant has no claim of right to that property.” Id. (footnote omitted).
But this case involves threats of violence, not “legitimate economic threats.” And, outside the context of labor relations,4 the “claim of right” defense is inapplicable in Hobbs Act cases involving the use or threatened use of violence. See, e.g., United States v. Villalobos, 748 F.3d 953, 956 (9th Cir.2014) (“[T]he claim of right defense ... is unavailable in cases involving physical violence ... because such violence is inherently wrongful.“). This is so, courts have explained, because “Congress meant to punish as extortion” under the Hobbs Act “any effort to obtain property by inherently wrongful means, such as force or threats of force ..., regardless of the defendant‘s claim of right to the property.” United States v. Zappola, 677 F.2d 264, 268-69 (2d Cir.1982) (emphasis supplied).
It makes some sense, then, that the small number of courts to incorporate the “claim of right” defense into their understanding of
In sum, just as “you cannot beat someone up to collect a debt, even if you believe he owes it to you,” United States v. Castor, 937 F.2d 293, 299 (7th Cir.1991) (internal quotation marks omitted), it follows that a defendant may not threaten to injure or kidnap a person to collect a debt, even one legitimately due and owing. The indictment in this case alleged that Appellant threatened to have MW beaten, hospitalized, or subjected to some less specific violence. Accordingly, even assuming MW owed Appellant the alimony payments he sought, Appellant was not entitled to have the indictment against him dismissed on the basis of his “claim of right” theory.
III.
Having resolved the legal framework, we now consider, and reject, Appellant‘s remaining objections to the proceedings below.
A.
The Anonymous Jury
Appellant claims the district court erred by empaneling an anonymous jury, a decision which we review for abuse of discretion. See United States v. Hager, 721 F.3d 167, 186 (4th Cir.2013).
A district court should rarely empanel an anonymous jury, but may do so if “(1) there is strong reason to conclude that the jury neеds protection from interference or harm, or that the integrity of the jury‘s function will be compromised absent anonymity; and (2) reasonable safeguards have been adopted to minimize the risk that the rights of the accused will be infringed.” Hager, 721 F.3d at 186 (quoting United States v. Dinkins, 691 F.3d 358, 372 (4th Cir.2012)).
In assessing the need to protect the jury and its functions, a district court should consider several factors, including: whether the defendant is involved in organized crime or a member of some other group with the capacity to harm jurors; whether he has previously attempted to interfere with the judicial process; whether he is facing a lengthy sentence or substantial fine; and whether extensive publicity makes it more likely that the jury will be subjected to intimidation or harassment. See Hager, 721 F.3d at 187. As is often true of multi-factor tests, however, the list is not exhaustive and the presence or absence of any of those is not dispositive. See id.
Here, the district court found Appellant‘s criminal history weighed heavily in favor of jury anonymity. As the district court carefully explained, Appellant‘s pre-
And, as the district court further observed, Appellant had also previously been convicted in the Northern District of Illinois “of soliciting the commission of a violent federal offense” against a juror “in violation of
We agree with the district court that Appellant‘s prior history of interfering with witnesses and a juror, and in particular his use of the Internet to publicize a juror‘s personal information, strongly favored the use of an anonymous jury. Appellant complains that the district court erred by affording “dispositive weight” to this factor, but the district court did not rest its decision solely on Appellant‘s prior history. As the district judge explained, he also found that the possibility of a lengthy sentence under
The district court also satisfied its obligation to adopt reasonable safeguards to protect Appellant‘s right to a fair trial. Most significantly, the district court told the jurors they were being empaneled anonymously to prevent the press from communicating with them during trial:
We‘re not using this process to be disrespectful to any of you. Instead, we want to ensure that you will remain anonymous so that you will not be contacted by anyone in the media, and to ensure that no outside information is communicated to any juror throughout the jury selection process and the trial. This is so that each side can have a fair and impartial trial.
The fact that we are identifying you by number should have no impact at all on the presumption of innocence that the defendant is entitled to, or any impact in any other way as you consider and decide the case if you were selected to serve on the jury.
J.A. 155. We have previously endorsed precisely such a safeguard, and we find it appropriate here as well. See Hager, 721 F.3d at 188-89 (observing that a very similar explanation to the jury was a sufficient “neutral non-prejudicial reason for empan-
B.
The Gnos Notes
Appellant also argues it was reversible error to admit Gnos‘s handwritten notes into evidence. We review evidentiary rulings for an abuse of discretion, affording substantial deference to the district court. See United States v. Medford, 661 F.3d 746, 751 (4th Cir.2011).
The relevant portions of the notes, which were admitted during Gnos‘s direct examination by the prosecution, read as follows:
OK—if Phone Call dont [sic] work—we will have to have someone fuck her up!
*
*
*
find someone to talk to wife on [sic] go and collect money—
J.A. 727-28. The Government concedes the notes are prior out-of-court statements, but argues they were admissible under
“A nonconstitutional error ceases to be harmless if it had a substantial and injurious effect or influence in determining the jury‘s verdict.” United States v. Briley, 770 F.3d 267, 276 (4th Cir.2014) (internal quotation marks omitted). “We do not reverse evidentiary rulings for inconsequential technicalities. Rather, reversal is reserved for more serious errors that affect substantial rights or that directly affect the outcome of a case.” Id. (internal quotation marks omitted).
In this case, the notes, if believed by the jury, could have informed the jury‘s consideration of two important issues: whether Appellant authored the e-mails and whether Appellant intended to extort money from MW. But the Government properly introduced several audio recordings of Appellant making nearly identical comments to Gnos on several occasions. And those recordings demonstratеd, in far more vibrant detail than Gnos‘s notes, that Appellant was preoccupied with finding someone in Virginia willing to intimidate MW.
Appellant maintains that the strength of the Government‘s additional evidence is not dispositive. Fair enough. But the closeness of the case, which will frequently turn on the weight of the evidence, is clearly relevant to the harmless error analysis. See Kotteakos v. United States, 328 U.S. 750, 763, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) (“Errors of this sort in criminal causes conceivably may be altogether harmless in the face of other clear evidence, although the same error might turn scales otherwise level, as constantly appears in the application of the policy ... to questions of the admission of cumulative evidence.“). And we have in the past held evidentiary errors harmless where the Government‘s case is strongly corroborated by other admissible evidence. See Briley, 770 F.3d at 277-78 (observing that a “plethora of testimony established” the elements of the charged offense and concluding the admission of improper character evidence was harmless).
C.
The Sufficiency of the Evidence
We next turn to Appellant‘s claim that he was entitled to a judgment of acquittal, a question which we review de novo. See United States v. Howard, 773 F.3d 519, 525 (4th Cir.2014). The question is whether, “viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under that standard, we think a rational trier of fact could easily have found that Appellant sent MW true threats of bodily harm through foreign commerce with the intent to extort. The district court therefore properly denied the motion.
1.
Respecting the “true threat” requirement, the question—which remains unchanged following Elonis—is whether “a reasonable recipient familiar with the context” would consider the communicated statement “a serious expression of an intent to do harm.” United States v. White, 670 F.3d 498, 509 (4th Cir.2012) (internal quotation marks and emphasis omitted).
In the case at hand, we have an estranged wife on the outs with her fugitive husband with whom she was engaged in a dispute over money. The e-mails comprising Counts I, III, and IV explained (either explicitly or implicitly) that the sender had been in contact with a loan shark who lived near the recipient, and advised the recipient to be ready to remit payment or risk, respectively, having someone “beat [her] ass,” “probably be[ing] hospitalized,” or having “something violent potentially happen[] to [her] around [her] baby.” J.A. 717-25. As for the e-mail constituting Count II, it similarly warned the recipient that she would “have the living shit beat out of [her]—to start with,” and that the sender had “a lot of friends who think nothing of taking out on [her] the things” she allegеdly did to the sender. J.A. 721. By any measure, a reasonable person would have interpreted those messages as a serious expression of an intent to do harm. See White, 670 F.3d at 513 (holding that a caller‘s message that recipient would be “hunted down and shot” was a true threat).
2.
Whether Appellant sent the e-mails and whether they traveled in foreign commerce are overlapping questions. There is no dispute Appellant was in Mexico and MW in Virginia when the e-mails were sent; if he sent them, the foreign commerce element is clearly satisfied. And the jury heard more than enough evidence to find, beyond a reasonable doubt, that Appellant was indeed the author of each charged e-mail. To begin with, the e-mails originated from an e-mail address long associated with Appellant. They were also sent from an IP address that had been masked through the use of
3.
Finally, to demonstrate that Appellant sent each e-mail with the intent to extort, the Government was obliged to show Appellant intended to induce MW to pay him by wrongfully threatening her with bodily injury if she did not. The jury heard Appellant repeatedly emphasize to Gnos the importance of finding someone to lean on MW. And each of the e-mails comprising Counts I, III, and IV specifically demands money from the recipient, and threatens violence if the money is not paid. A rational jury could easily have found that the sender of those messages intended to express exactly what those words mean—the quintessential extortionate demand: “рay up, or else.” That Appellant also contemporaneously discussed his plans to intimidate MW into paying the alimony only crystalized his evident intent to extort her. Accordingly, the district court did not err in denying Appellant‘s motion for judgment of acquittal.5
D.
The Reasonableness of the Sentence
Finally, we consider Appellant‘s three challenges to his sentence. “We review the reasonableness of a sentencing decision under an abuse of discretion standard.” United States v. Howard, 773 F.3d 519, 527-28 (4th Cir.2014).
1.
Appellant first asserts the district court erred in applying the two-level enhancement for obstruction of justice, rendering his sentence procedurally unreasonable. “There are three elements necessary to impose a two-level enhancement for obstruction of justice based on the defendant‘s perjurious testimony: the sen-
Appellant testified at trial that he did not send the threatening e-mails to MW and suggested instead that Gnos was the responsible party. The jury, inasmuch as it found him guilty, clearly rejected Appellant‘s alternative theory of the crime. At sentencing the district court denied Appellant‘s objection to the two-level enhancement. The court explained:
Well, I have heard the evidence before a jury. I think there was ample evidence for the jury to have found like it did. I think when you took the stand and testified, I can‘t imagine you not knowing what you had done. I think that was to obstruct justice; maybe get the jury to think that someone else other than you did it.
J.A. 1139. Although not as explicit as ideal, the district court provided a sufficient basis for imposing the two-level enhancement. The observation that the jury rejected Appellant‘s testimony, and the court‘s comment that it could “not imagine” Appellant was unaware of sending the e-mails when he testified, established falsity and willfulness. See J.A. 1139. And the issue of who authored the e-mails, which Appellant attempted to muddy by falsely implicating Gnos, was plainly material. Accordingly, the district court did not err in applying the two-level enhancement.
2.
Next, Appellant claims his sentence is substantively unreasonable because the district court improperly considered his political views. “Any sentence that is within or below a properly calculated Guidelines range is presumptively reasonable.” United States v. Louthian, 756 F.3d 295, 306 (4th Cir.2014). Appellant bears the burden of convincing us that his sentence was instead greater than necessary to provide just punishment, promote respect for the law, reflect the seriousness of the offense, adequately deter similar criminal conduct, protect the public, and provide necessary rehabilitation. See
Here, the district court imposed a 92-month sentence at the bottom of the Guidelines range. Appellant argues the sentence was nevertheless “greater than necessary” because it was improperly based on his unpopular political views. He relies on two statements from the bench during the sentencing hearing. In the first, the district court noted its concern that “the Government [wa]s trying to punish [Appellant] for [his] beliefs,” or “largely because of [his] beliefs.” J.A. 1140-41. In the second, the district court observed that it was “bothered ... a little bit” that the Guidelines range was “a little high because of [Appellant‘s] beliefs,” but ultimately denied Appellant‘s request for a downward departure because his offense was “serious,” and because MW “would have been very apprehensive about” re-
Appellant reads too much into these remarks. The district court immediately rebuked the Government when the prosecutor attempted to argue that some of Appellant‘s politically controversial writings showed a lack of rеspect for the law. The court explained that Appellant “has a constitutional right to believe what he believes,” and reminded the Government that it “[c]an‘t punish him for that.” J.A. 1136-37.
In sum, we think the most that can be inferred from the sentencing transcript is that the district court was concerned by the potential that Appellant had been singled out for prosecution and so selected a sentence at the bottom of the Guidelines range. But the district court also acknowledged that Appellant‘s words nevertheless constituted serious threats that negatively impacted MW, making departure below the Guidelines range inappropriate. We find no error in this approach.
3.
Finally, Appellant contends that the district court erred by failing to group his counts of conviction under
Appellant‘s PSR stated that his convictions were not subject to grouping pursuant to
Several courts have made clear that offenses excluded from grouping under Subsection (d) may nevertheless be grouped pursuant to Subsection (a) or (b). See, e.g., United States v. Lopez-Urbina, 434 F.3d 750, 764 (5th Cir.2005); United States v. Tank, 200 F.3d 627, 632 (9th Cir.2000). But there is no evidence in the sentencing transcript suggesting the court interpreted Subsection (d) to absolutely bar grouping under any circumstances. Nor was it plainly erroneous for the district court to decline to group Appellant‘s offenses pursuant Subsection (a) or (b). In fact, though we need not definitively resolve the question, the Application Notes to those Subsections could be plausibly read to suggest Appellant‘s offenses were not subject to grouping. For example, respecting Subsection (a), Comment 3 states:
(5) The defendant is convicted of three counts of unlawfully bringing aliens into the United States, all counts arising out of a single incident. The three counts are to be grouped together. But: (6) The defendant is convicted of two counts of assault on a federal officer for shooting at the officer on two separate days. The counts are not to be grouped together.
See
(2) The defendant is convicted of two counts of mail fraud and one count of wire fraud, each in furtherance of a single fraudulent scheme. The counts are to be grouped together, even if the mailings and telephone call occurred on different days. ... But: (5) The defendant is convicted of two counts of rapе for raping the same person on different days. The counts are not to be grouped together.
See
In support of his argument, Appellant points to United States v. Thomas, 155 F.3d 833, 840 (7th Cir.1998), in which the court remanded for consideration of the grouping question with respect to multiple
IV.
A defendant is entitled to a fair trial, not a perfect one. See Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). Here, Appellant received a fair trial, and we find no reason to disturb the jury‘s verdict or the district court‘s sentence. For the foregoing reasons, the judgment of the district court is
AFFIRMED.