U.S. v. Hines, s. 92-30441

• Decision Date: 20 June 1994
• Docket Number: Nos. 92-30441,92-30443,s. 92-30441
• Citation: 26 F.3d 1469
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roger Leroy HINES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1469

26 F.3d 1469

UNITED STATES of America, Plaintiff-Appellee, v. Roger Leroy HINES, Defendant-Appellant.

Nos. 92-30441, 92-30443.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 3, 1994.

Decided June 20, 1994.

Kathleen M. Correll, Asst. Federal Public Defender, Portland, OR, for defendant-appellant.

John F. Deits, Asst. U.S. Atty., Portland, OR, for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before: POOLE and TROTT, Circuit Judges, and KING, ^* District Judge.

Opinion by Judge TROTT.

TROTT, Circuit Judge:

Roger Hines appeals the sentence imposed by the district court following his guilty pleas to making threats against the President, in violation of 18 U.S.C. Sec. 871, and being a felon in possession of a firearm, in violation of 18 U.S.C. Sec. 922(g)(1). He argues the district court erred in applying the Sentencing Guidelines by: (1) imposing a six-level enhancement for "conduct evidencing an intent to carry out" the threat; (2) failing to group both counts; (3) departing upward six levels because the President of the United States was the official victim; and (4) departing upward three levels based on Hines's "extremely dangerous mental state" and underrepresented criminal history. We have jurisdiction pursuant to 18 U.S.C. Sec. 3742. Although we reject most of Hines's arguments, we remand to the district court with instructions to explain the extent of its departure based on Hines's dangerous mental state and underrepresented criminal history.

I

On January 13, 1992, Roger Hines stole a .357 magnum revolver and 50 rounds of ammunition in Oregon. He then travelled to Washington, D.C. in order to kill President George Bush and become famous. Armed with the gun, Hines went to a school where he believed the President would be making an appearance. Fortunately, the President was 45 miles away.

Hines left Washington, D.C. at the end of January 1992 and travelled west. On February 12, 1992, Hines sold the .357 magnum at a gunshop in San Francisco. Four days later, while in Salt Lake City, Hines mailed a letter to his state probation officer in Oregon. The letter stated:

I haven't kill, but I could and will if I need to. I am on my way back east again.... [T]he first time I went back was to kill President Bush and was so close to doing so. I was at Fort Mead and he was at a kid's daycare center preschool. I was within 30 feet of him and I had that .357 in my hand in the pocket. I wanted to be known as someone in this U.S.A.

....

But now I need to be stopped. I will kill someone a boy, yes for sex. Maybe. I need help 1) by going to jail 2) kill myself 3) being kill by police, I want to die and you need to do so right now I am going after President Bush to do the job the right way.

Presentence Report at 2-3. Hines also stated in his letter that he had a .44 magnum, and he included a picture of a 14-year-old boy he claimed he molested.

The letter triggered a nationwide manhunt for Hines by the United States Secret Service. Their suspect was a 6'4", 457-pound, 35-year-old man. Hines had four prior criminal convictions and five hospitalizations for mental problems. Agents contacted Hines's psychiatrist who explained that Hines once brought an ax into the hospital, threatening patients and staff. Although the hospital staff eventually subdued Hines, the psychiatrist stated that Hines was dangerous when off his medication and should be taken into custody immediately. Agents also contacted Hines's known friends and relatives, several of whom had received postcards from Hines. One postcard depicted a Derringer gun and a newspaper article about the assassination of Abraham Lincoln.

On February 24, 1992, Hines left a message for a postal inspector in Portland, Oregon for whom Hines was once a confidential informant. The message read, "Tell him that I am watching his children and that I am a child molester and for him to watch out and this is Roger Hines." Id. at 3.

On February 28, 1992, Hines was arrested at a bus depot in Portland, Oregon. He had a butcher knife, a hunting knife, and a handwritten diary. In a written statement, Hines told agents that he would "kill President Bush some other time." He also admitted sending postcards and letters which stated he wanted to kill President Bush.

Hines's diary provides a frightening look into this disturbed man. It contains explicit descriptions about sodomizing young children and killing one boy. Typical of the comments is the following: "In the last 24 years I have had sex with about 20 kids from the ages 6 mos to 17 years old." Id. at 39. Agents, however, found no independent evidence corroborating these claims. The diary also contained many references to Hines's desire to kill President Bush.

While in custody, Hines wrote a letter to a local television station stating that he did threaten President Bush and would do it again in a "hart beat" if he could get out of jail. He explained he wanted to kill President Bush to get attention. If he could not kill President Bush, Hines said he wanted to be like Westley Allan Dodd. ¹ Hines also sent another letter while in custody to a woman acquaintance. He told the woman:

Because I was on a killing roll and you could have ben next. I was going to rob you and cut you up into parts and kept your head for a layer.... [Y]ou should hope I dont get out of jail for about ten years, because you could be next.

Id. at 45.

On June 1, 1992, Hines pled guilty to making threats against the president and being a felon in possession of a firearm in violation of 18 U.S.C. Secs. 871 and 922(g)(1). At the sentencing hearing, the district court adopted the Presentence Report and calculated defendant's combined offense level to be 18, which included a six-level enhancement under the Sentencing Guidelines because Hines engaged in conduct evidencing an intent to carry out the threat. See U.S. Sentencing Comm'n, Guidelines Manual Sec. 2A6.1(b)(1) (Nov. 1991) (hereinafter "U.S.S.G."). The district court imposed a six-level upward departure, instead of the Presentence Report's recommendation of a three-level upward departure, because the President was the "official victim" of the threat. See U.S.S.G. Sec. 3A1.2, comment. (n. 2). The court also departed upward three levels for a "convergence of factors," specifically Hines's "extraordinarily dangerous mental state" and "significant likelihood that he will commit additional serious crimes." Hines's final offense level was 27, and his criminal history category was IV. The applicable sentencing range was 100 to 125 months. The court sentenced Hines to 100 months imprisonment for being a felon in possession of a firearm and a concurrent 60 months for making threats against the President, followed by three years of supervised release.

II

The Sentencing Guidelines require a six-level enhancement to the crime of threats against the President if the defendant "engaged in any conduct evidencing an intent to carry out such threat." U.S.S.G. Sec. 2A6.1(b)(1). Hines argues the enhancement was inapplicable because the court could not consider conduct occurring prior to February 16, 1992--the date he sent the threatening letter. The district court rejected this argument.

I accept the presentence report as written. I further find that there is a nexus between the fact that the defendant did in fact go to Washington, D.C. with a weapon with the intent to kill the President, with the subsequent letter of threat in the fact that that demonstrated that he had taken an overt act to do this act, and then followed up to say that he's going--the next time, he's going to do it essentially and do it right and accomplish the mission. So I do think that that prior conduct is relevant in respect to that threat.

Rep.Tr. 10/9/92 at 42 (emphasis added).

The district court's finding that Hines's conduct evidenced an intent to carry out his threat is a factual finding that we review for clear error. United States v. Sauerwein, 5 F.3d 275, 278 (7th Cir.1993); see United States v. Chapnick, 963 F.2d 224, 226 (9th Cir.1992). The issue of whether conduct preceding the threat may be the basis for imposing the enhancement is an application of the Sentencing Guidelines that we review de novo. See United States v. Fagan, 996 F.2d 1009, 1017 (9th Cir.1993). We reject Hines's argument and hold that conduct preceding a threat may be the basis for applying the six-level enhancement of U.S.S.G. Sec. 2A6.1(b)(1).

Hines relies on the Second Circuit's decision in United States v. Hornick, 942 F.2d 105, 108 (2d Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 942, 117 L.Ed.2d 112 (1992), holding that under U.S.S.G. Sec. 2A6.1(b)(1) "conduct needed to show an intent to carry out a threat must occur either contemporaneously with or after the threat." The court explained its holding as follows:

A person cannot take action that will constitute proof of his intent to carry out a threat until after the threat has been made. The Background Commentary to Sec. 2A6.1 states the seriousness of conduct constituting threatening communications depends on the defendant's intent and likelihood that he would carry it out. The tense is future conditional, suggesting the guidelines contemplate a future, not a past, event. In addition, the use of the words "to carry out" makes clear that the threat must first exist before it may be carried out.

Id. In light of Hornick, Hines argues the district court should not have considered his theft of the .357 magnum and his journey to Washington, D.C. because those actions occurred prior to the date he mailed the threatening letter. ²

We, however, decline to follow Hornick. Instead of focusing on the purpose of the enhancement, the Hornick court unduly emphasized the commentary's use of the future conditional. The commentary to U.S.S.G. Sec. 2A6.1 states: "These statutes cover a wide range of conduct, the seriousness of which...