U.S. v. Weddle, s. 93-5691
| Decision Date | 17 August 1994 |
| Docket Number | 93-5739,Nos. 93-5691,s. 93-5691 |
| Citation | 30 F.3d 532 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Anthony R. WEDDLE, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellee, v. Anthony R. WEDDLE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: John Alexander Gephart, Asst. U.S. Atty., Baltimore, MD, for appellant. Brian Joseph Murphy, Baltimore, MD, for appellee.
ON BRIEF: Lynne A. Battaglia, U.S. Atty., Baltimore, MD, for appellant.
Before MURNAGHAN, Circuit Judge, SPROUSE, Senior Circuit Judge, and RESTANI, Judge, United States Court of International Trade, sitting by designation.
Affirmed in part, reversed in part, and remanded by published opinion. Circuit Judge MURNAGHAN wrote the opinion, in which Senior Circuit Judge SPROUSE joined. Judge RESTANI wrote a separate concurring opinion.
Defendant, Anthony R. Weddle, pled guilty to an assault charge in a Maryland state court. While on probation pending judgment, Weddle again threatened the person assaulted, his wife's lover. Weddle pled guilty in federal court to mailing threatening communications in violation of 18 U.S.C. Sec. 876.
At sentencing, the district court departed downward in two instances from the sentencing guideline range, and refused to depart downward in one instance. The Government has appealed, and the defendant has cross-appealed the district court's application of the sentencing guidelines.
On April 7, 1993, the defendant waived indictment and pled guilty in the United States District Court for the District of Maryland to a one-count Information charging him with mailing threatening communications in violation of 18 U.S.C. Sec. 876. The facts supporting the defendant's conviction, as stipulated in the plea agreement, are as follows:
In the Summer of 1992, Anthony R. Weddle of Thurmont, Maryland learned that he was suffering from Hodgkin's disease. To aggravate matters, Mr. Weddle's wife of nine years and the mother of his three children, Aretta J. Weddle, left him on July, 28, 1992, to live with Gary L. Angleberger.
Mr. Weddle first responded to his marital difficulties by personally visiting Mr. Angleberger at his residence in Woodsboro, Maryland to ask for the return of his wife. Recognizing that Mr. Weddle was a five-year veteran officer with the Thurmont Police Department, Mr. Angleberger responded that he did not intend to interfere further with the Weddles' marriage. Despite this representation, Mr. Angleberger continued his affair with Mrs. Weddle.
In early August 1992, Mr. Weddle advised the Maryland State Police and Child Protective Services that Mr. Angleberger had slapped and bruised the arm of his daughter Amber Weddle while she was visiting her mother. Mr. Angleberger explained that the bruise resulted from disciplinary action. A subsequent investigation proved inconclusive; consequently, no charges were filed against Mr. Angleberger.
Shortly thereafter, Mr. Weddle gave his sister-in-law Angela C. Hahn specific written instructions regarding a message she was to convey to Mr. Angleberger:
When you go down there [to see Mr. Angleberger] just remind him that he said it [the affair with Mrs. Weddle] was over and if she [Mrs. Weddle] ever shows up[,] to tell her it is over.
She is my world and nobody could ever love her more tha[n] I.
That if I ever find out anything is going on [between Mr. Angleberger and Mrs. Weddle], I will hunt him down and eliminate him from the picture[,] then do myself. Remind him of his 3 children. I don't want my children hurt [and] I'm sure he doesn't want his children fatherless. There [are] plenty of other wom[e]n out there for him. He doesn't have to take my only love. I can make her happy once again if he'd keep out of the picture.
Ms. Hahn gave Mr. Weddle's written instructions directly to Mr. Angleberger; however, Mr. Angleberger refused to respond. Accordingly, Mr. Weddle began mailing and delivering threatening communications directly to Mr. Angleberger at his home....
On or about August 31, 1992, Mr. Weddle caused the United States Postal Service to deliver a typed letter bearing his name to Mr. Angleberger at his Woodsboro residence, which provided in pertinent part:
[W]e have a score to settle and it won't just disap[p]ear. For one, you had lied to me by saying this [affair] was over, that you did not want the hass[le]s[.] [W]ell, it's too late for that. You are going to pay for what you did to my daughter. For the pain you have caused her, you are going to get in return.
On the evening of September 11, 1992, Mr. Weddle and his brother-in-law Alan Ellison attempted to run Mr. Angleberger and Mrs. Weddle off the road and, when this failed, chased them back to the home of Mr. Angleberger's parents, where Mr. Weddle attempted to assault Mr. Angleberger with a "slapjack" as he and Mrs. Weddle fled into [the] house. This incident caused Thurmont Police Chief Neil F. Bechtol to demand Mr. Weddle's resignation, which was tendered on September 16, 1992. Mr. Weddle subsequently pled guilty to assault in Maryland District Court on November 19, 1992, and received probation before judgment.
Mr. Angleberger responded to this assault by sending Mr. Weddle a letter by certified mail, return receipt requested, on September 15, 1992, in which he warned Mr. Weddle: Mr. Weddle responded by placing the newspaper heading "Obituaries" directly above Mr. Angleberger's signature on this letter and causing the Postal Service to deliver the letter back to Mr. Angleberger at his Woodsboro residence.
On September 24, 1992, David P. Daggett, Assistant State's Attorney for Frederick County, Maryland, advised Mr. Weddle in writing:
I AM ... ISSUING TO YOU A NOTICE, ON BEHALF OF ARETTA WEDDLE AND GARY ANG[LE]BERGER, TO HAVE NO FURTHER CONTACT WITH HER OR GARY ANG[LE]BERGER. ANY FURTHER CONTACT INITIATED BY YOU OR AT YOUR REQUEST ON EITHER OF THOSE PARTIES MAY BE GROUNDS FOR FURTHER CRIMINAL CHARGES. YOU ALREADY RECEIVED A NOTICE OF TRESPASS ORDER FROM THEM THAT IS STILL IN EFFECT.
(emphasis in original). Shortly thereafter, Mr. Angleberger's parents began receiving anonymous mailed communications that threatened Mr. Angleberger's well-being because of his affair with Mrs. Weddle.
On November 13, 1992, Special Agent David N. Hedges of the Federal Bureau of Investigation warned Mr. Weddle by telephone that he would be prosecuted under federal law if he continued to send threatening communications through the mail. Mr. Weddle acknowledged that he had mailed threatening communications to the Anglebergers, but advised Special Agent Hedges that he would stop. However, Mr. Weddle subsequently caused Mr. Angleberger's parents to receive a mailed package on or about November 21, 1992 containing three .38 caliber " +P" bullets with Mr. Angleberger's name and address affixed to them. Accordingly, Mr. Weddle was arrested.
The package containing the bullets was postmarked November 20, 1992, the day after the state court placed the defendant on probation before judgment for assaulting Angleberger. In the plea agreement, the Government and the defendant stipulated to applicable sentencing guidelines, arriving at an Offense Level of 13. They agreed as well that "no additional sentencing guideline offense characteristics, adjustments or departures apply to this case."
The Probation Officer, however, recommended a one criminal point enhancement under U.S.S.G. Sec. 4A1.1(c), because the state court sentenced Weddle to probation before judgment on November 19, 1992 for the assault on Angleberger, and two criminal history points under U.S.S.G. Sec. 4A1.1(d) because he mailed the three bullets after he had been placed on probation. The three criminal history points placed the defendant in criminal history category II.
The Probation Officer further suggested that the district court should depart downward based on defendant's diminished capacity under U.S.S.G. Sec. 5K2.13, if it concluded that mailing threatening communications constituted a "non-violent offense."
At defendant's sentencing hearing on July 28, 1993, the district court adopted the Government and defendant's stipulation of the applicable sentencing guideline factors and preliminarily calculated the defendant's offense level at 13. However, contrary to the Probation Officer's finding and over the Government's objection, the district court granted the defendant a downward departure of two criminal history points, and consequently one criminal history category, under U.S.S.G. Sec. 4A1.3. The district court concluded that the sentence, absent a downward departure, would over-represent the defendant's criminal history. It justified its downward departure on the ground that the mailing of the bullets was actually part of a continuous offense of the crime charged, rather than a distinct offense that could be considered under Sec. 4A1.1(d), which penalizes acts conducted while a defendant is under the control of the penal system.
Additionally, the district court departed downward three offense levels under U.S.S.G. Sec. 5K2.13 over the Government's objection, based on a finding that defendant suffered from diminished mental capacity.
The district court rejected an invitation by the defendant to make a further reduction based on his family responsibilities.
By departing downward two criminal history points under U.S.S.G. Sec. 4A1.3 and three offense levels under U.S.S.G. Sec. 5K2.13 beyond the stipulated downward departure of two offense levels under U.S.S.G. Sec. 5K2.10, the district court effectively reduced the defendant's applicable sentencing guideline range from 15 to 21 months (offense level 13, criminal history category II) to 6...
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