U.S. v. Gary, 92-5652

• Decision Date: 28 February 1994
• Docket Number: No. 92-5652,92-5652
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Christopher GARY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1123

18 F.3d 1123

UNITED STATES of America, Plaintiff-Appellee, v. Christopher GARY, Defendant-Appellant.

No. 92-5652.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 28, 1993.

Decided Feb. 28, 1994.

ARGUED: George Alan DuBois, Jr., Assistant Federal Public Defender, Raleigh, North Carolina, for appellant. John Samuel Bowler, Assistant United States Attorney, Raleigh, North Carolina, for appellee.

ON BRIEF: Margaret Person Currin, United States Attorney, Raleigh, North Carolina, for appellee.

Before ERVIN, Chief Judge, PHILLIPS, Circuit Judge, and MICHAEL, United States District Judge for the Western District of Virginia, sitting by designation.

OPINION

ERVIN, Chief Judge:

Christopher Gary was convicted on June 3, 1992 of twelve counts of mailing threatening communications in violation of 18 U.S.C. Sec. 876. The revised presentence report calculated the Federal Sentencing Guidelines range to be 30 to 37 months. At the sentencing hearing on September 24, 1992, the district court adjusted the base offense level upward by six levels for conduct evidencing an intent to carry out the threats and upward by two levels for selection of a vulnerable victim, finding the range to be 70 to 87 months. The district court then departed upward by twelve levels from the Guideline range on grounds of extreme psychological injury to the victim and extreme conduct by the defendant. The district court imposed a sentence of 250 months incarceration followed by a term of 36 months supervised release and imposed $600 in special assessments. Gary appeals only his sentence.

We affirm the adjustment for conduct evidencing an intent to carry out the threats. We find, however, that enhancing the sentence both for selection of a vulnerable victim and for extreme psychological injury amounted to double counting the same criminal conduct and that the district court erred in applying both enhancements. The vulnerable victim adjustment is not appropriate in these circumstances. We further hold that, although the district court correctly found a departure warranted for extreme psychological injury and extreme conduct, the district court erred in its application of the departure because the court failed to demonstrate any analytical basis supporting the extent of the departure. We do not imply that the district court must reduce the upward departure imposed on remand, but simply that a reasoned basis for the court's decision must be set forth. We therefore vacate the sentence imposed by the district court and remand the case for resentencing.

I.

Christopher Gary met Jean Grim in 1987 when he was hired as a repairman by her employer, Carolina Custom Golf, in Raleigh, North Carolina. While Gary worked with Grim, their relationship was cordial but did not go beyond professional. Gary left Raleigh in May 1988 to return to his home in Chattanooga, Tennessee. Gary was incarcerated in Tennessee on a DUI conviction from July 1988 until the summer of 1989. During this period, he began calling the golf shop at its toll-free number to talk to all its employees. He began having friendly conversations with Grim at this point. The relationship became more friendly as Gary asked Grim for advice and support related to his alcoholism. The long distance relationship continued following his release from prison, with the pair sending cards and letters and occasionally phoning each other until mid-1990.

In June 1990, Gary returned to Raleigh to look for work. Gary and Grim had four or five dates over a five week period and slept together twice. By the end of July, however, Grim began pulling away from Gary. When her sister was undergoing serious surgery, Grim asked Gary not to call her for awhile. Gary became angry and began calling Grim five to seven times a day at work, despite repeated pleas not to disturb her workplace. He also began writing her angry letters.

Unable to find work in Raleigh, Gary returned to Chattanooga in early August, 1990. The phone calls and letters to Grim increased in frequency. He would call repeatedly until four in the morning and sent up to eight letters a day, each six to eight double-sided pages long. The communications became increasingly angry and threatening. They caused Grim tremendous stress and she was often unable to sleep. Grim changed her home phone number to no avail; the calls continued. Despite office-wide meetings convened by Grim to prevent his calls from reaching her, Gary's calls still got through. The situation at the golf shop became intolerable; the calls were causing tension throughout the workplace. Grim was forced to resign in October, 1990 after six years of employment.

After her resignation, Grim changed her home phone number a second time and the calls stopped. The letters, however, continued and became more violent. Gary threatened to return to Raleigh at Christmas and harm her and visiting family members. Because she was terrified for the safety of her family, Grim called Gary and made a deal with him. She agreed to meet with him to allow him to speak his mind if he would wait until after Christmas to return. After these plans were made, the letters continued but were not as violent.

On February 14, 1991, Gary went to Grim's apartment and left a note on her windshield informing her that he had returned and was in the hotel up the street. He told her to call him to arrange a meeting. Because Grim believed he would leave her alone if she would meet him and allow him to say what he wanted, she called to arrange a meeting. They met in front of Grim's condominium with her roommate, Amanda Webster, watching from the kitchen window with phone in hand to call for help if necessary. Gary arrived intoxicated half an hour late. He gave Grim a card and professed his love to her for about twenty minutes. Grim did not reciprocate. Grim finally went back inside and Gary left quietly.

Less than a week later, Gary left flowers and a card on Grim's windshield. Grim defaced the card and crushed the flowers, leaving both outside her door. She put a note on her door telling Gary that if he didn't leave her alone, she would call the authorities. Several days later, on February 21, 1991, Gary went to Grim's home and pounded loudly on the door, yelling obscenities. He was apparently seeking an explanation for the note on the door. When his behavior became more violent and she feared he was trying to enter to carry out his threats, she called the police. When the police arrived, Gary left. Because Grim feared for her life, she applied for a gun permit in March, 1991 and purchased a handgun. Gary's letters continued and made repeated graphic threats to harm Grim, her family, and her roommate.

On June 13, 1991, Gary pled guilty in Wake County District Court to communicating threats to Grim and was sentenced to six months in jail. He served thirty days and was released on July 15, 1991. This conviction was based on the letters Gary sent to Grim from October 30, 1990 until December 25, 1990. On the day he was released, Gary went to Grim's home, vandalized her home and car and left a note on her windshield stating, "Guess who got out today, bitch?" Gary immediately returned to Chattanooga and resumed letter-writing seven days later. The series of letters serving as the basis of this conviction was written between July 22 and September 15, 1991.

Gary began a six-week alcohol and cocaine binge during which he wrote eighteen letters to Grim totaling eighty-eight pages. The gruesome details of these letters are summarized in Appellee's brief and the letters themselves constitute a large part of the joint appendix.

Suffice it to say here that the letters were often written in the defendant's own blood and detailed the gory specifics of innumerable tortures Gary planned to inflict on Grim and her roommate.

Following Grim's repeated appeals to local authorities, Raleigh Police Officer Marshall Carroll called Gary in Tennessee on August 26, 1991, to tell him to stop sending the letters. The letters continued, however, with Gary belittling Carroll's attempts to help Grim. The final letter in this series was written on September 5, 1991. On September 19, 1991, Gary was arrested in Chattanooga, Tennessee and sentenced to six months incarceration for possession of marijuana and public intoxication. On December 2, 1991, Gary was arrested on the instant charges. The grand jury returned an eighteen count indictment on December 19, 1991. After a psychiatric evaluation determined that Gary was fit to stand trial, trial began on June 1, 1992. He was convicted on June 3, 1992. While incarcerated prior to sentencing, Gary wrote numerous hostile letters to the prosecutor and the trial judge. In these letters, Gary expressed his hatred for Grim and the prosecutor and reconfirmed his obsession with Grim: "What I have to do is break her of her conduct.... What I am really upset about is that when I read that she is thinking of moving out of state before I get released." These letters, written after conviction, evidence the unrelenting nature of Gary's conduct. He was sentenced to 250 months in prison on September 24, 1992 and this appeal followed.

II.

The standard for review of application of the Sentencing Guidelines to the facts of a particular case is set forth in 18 U.S.C. Sec. 3742(e):

The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court's application of the guidelines to the facts. (Emphasis added.)

This court has found that

the amount of deference due a sentencing judge's application of the guidelines to the facts thus depends on the circumstances of the case. If the issue turns primarily on a factual determination, an appellate court should apply the 'clearly erroneous' standard. If the issue,...