U.S. v. Evans

• Decision Date: 16 February 2007
• Docket Number: No. 05-14498.,05-14498.
• Citation: 478 F.3d 1332
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roger V. EVANS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

478 F.3d 1332

UNITED STATES of America, Plaintiff-Appellee, v. Roger V. EVANS, Defendant-Appellant.

No. 05-14498.

United States Court of Appeals, Eleventh Circuit.

February 16, 2007.

Gwendolyn L. Spivey and Randolph P. Murrell, Fed. Pub. Defenders, Fed. Def. Office, Tallahassee, FL, for Evans.

Robert G. Davies, Pensacola, FL, E. Bryan Wilson, U.S. Atty., Tallahassee, FL, for U.S.

Appeal from the United States District Court for the Northern District of Florida.

Before DUBINA and WILSON, Circuit Judges, and CORRIGAN,^* District Judge.

WILSON, Circuit Judge:

Roger V. Evans ("Evans") appeals his conviction and life sentence upon a guilty plea for (1) threatening to use a weapon of mass destruction against federal government property in violation of 18 U.S.C. § 2332a(a)(3); (2) mailing a threatening communication in violation of 18 U.S.C. § 876(c); and (3) interfering with a federal officer in violation of 18 U.S.C. § 111(a). Prior to his plea, the government filed an enhancement information under 18 U.S.C. § 3559, seeking mandatory life imprisonment in connection with the first count, threatening government property with a weapon of mass destruction in violation of § 2332a(a)(3).¹ Evans' lawyer withdrew at the sentencing hearing, and the district court allowed Evans to proceed without counsel. The district court sentenced Evans concurrently to life on the first count (threatening government property with a weapon of mass destruction), 120 months on the second count (mailing a threatening communication), and 96 months on the third count (interfering with a federal officer), to be served consecutively to his pre-existing state sentence and followed by five years of supervised release.² Evans now challenges the district court's acceptance of his guilty plea, the district court's decision to allow him to represent himself at sentencing, and the district court's application of the sentencing enhancement. We affirm Evans' conviction, but vacate his sentence as to the first count. The district court improperly applied the enhancement statute because the charged conduct—i.e., threatening to use a weapon of mass destruction against federal government property—does not constitute a "serious violent felony" within the meaning of § 3559(c)(2)(F).

I. Background

In April 2004, Evans mailed a letter to the federal courthouse in Pensacola, Florida, addressed to the Clerk of the United States District Court. The letter, entitled "Affidavit in Support of Anthrax Scare," referenced anthrax three times and contained a harmless powder that resembled anthrax. The receipt of Evans' letter disrupted both the Clerk's Office and the U.S. Marshals' Office. Several employees were isolated for up to ten hours, including two Clerk's Office employees who went to the hospital and had their blood drawn to confirm they were not exposed to anything dangerous. Evans, who was already serving a state sentence in excess of 100 years, had sent the anthrax hoax with the goal of being transferred to a federal prison.

A. Plea Hearing

In December 2004, Evans pled guilty to all counts. At the plea hearing, the district judge read Evans the indictment.³ Evans testified that he understood the three charges, had read his plea agreement, and had gone over the agreement with his attorney. The judge explained the possible penalties for the charges, including the enhancement.⁴ Evans indicated that he understood the sentencing implications and reserved his right to challenge the applicability of the enhancement. The judge questioned Evans about the factual basis of his plea. She asked him why he was pleading guilty and to describe what he had done. Evans testified, "I did it." He later explained, "I wrote the letter and sent it to the courts." Evans also admitted that he placed the powder in the envelope and that, although not his intention, he had threatened the Clerk's Office employees. After the prosecutor read the elements of the first count, the court further inquired into Evans' intent by asking, "Do you agree with me, sir, that what you did was intentionally threaten?" Evans replied, "Yes, ma'am. That's what the law says." The court also addressed Evans regarding the elements of the third count (interfering with a federal officer). The court concluded that there was a sufficient factual basis to support a guilty plea on all three counts.

B. Sentencing

Despite the judge's determination at the plea hearing, the court later asked the parties to brief whether there was a factual basis to support a conviction under § 2332a(a)(3) for threatening to use a weapon of mass destruction against federal government property. The court questioned whether anthrax could be a threat against property as opposed to against a person. The court further questioned the application of the § 3559(c) enhancement to an offense against a building rather than against a person.

After the issues had been briefed, Evans' attorney moved to withdraw. The court took up the motion at Evans' sentencing hearing. At the beginning of the hearing, Evans' attorney explained that he had received threatening letters from Evans and Evans had indicated an intent to commit further crimes. The government opposed counsel's motion to withdraw, arguing that current counsel was in the best position to understand the sentencing arguments and delay would only increase Evans' time in federal custody. Evans addressed the court and stated that he did not want his current counsel to represent him, did not want delay, and wanted to proceed with his sentencing without the help of an attorney.

The court explained to Evans that if he wished to waive his Sixth Amendment right to counsel the court had to ensure that he was informed of the consequences of that decision. Upon questioning, Evans indicated that he understood that (1) he had a right to counsel, appointed if necessary, at all stages; (2) his sentencing might involve law and procedural issues best handled by an attorney; and (3) he could face a potential life sentence and be required to serve his state sentence before his federal sentence. The court also inquired into Evans' knowledge of the law. Evans characterized himself as "basically a paralegal" because he knew how to file motions to "get people back in courts" and how to do legal research into state law. He admitted that he had no formal legal education but testified that he was trained by other inmates and paralegals. The court reiterated that the sentencing hearing could be continued and new counsel appointed, but Evans responded, "I wish not that. I wish to go ahead and get it over with now." The court inquired into whether Evans was taking any medication at the time and whether his decision was completely voluntary. The court then allowed Evans to represent himself.

The court concluded that § 2332a did not require a future threat and that, although no case law was directly on point, a letter threatening to use a weapon of mass destruction against government property would include threats to those within that building as well. The court found Evans' plea valid. With respect to § 3559(c), the court determined that the enhancement did apply to mailing a letter containing a threat of anthrax given the nature of anthrax, the panic associated with such a threat, and the potential for physical harm as a result.

II. Analysis

First, we examine whether there was a sufficient factual basis for Evans' guilty plea as to the first and second counts of the indictment. Next, we ask whether the district court conducted a sufficient inquiry under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), to allow Evans to represent himself at sentencing. Finally, we evaluate the application of the § 3559(c) enhancement to a conviction under § 2332a(a)(3) for threatening to use a weapon of mass destruction against federal government property.

A. Factual Basis for Counts One and Two

Evans alleges both a due process violation and a Rule 11 violation based on the district court's acceptance of his guilty plea for threatening to use a weapon of mass destruction against federal government property (Count One) and mailing a threatening communication (Count Two). See U.S. Const. amend. V; Fed.R.Crim.P. 11.

1. Standard of Review

We review Evans' claim that there was an insufficient factual basis for his guilty plea as to Counts One and Two for plain error because Evans did not raise his due process argument or object to a Rule 11 violation in the district court. See United States v. Moriarty, 429 F.3d 1012, 1018-19 (11th Cir.2005) (per curiam) (applying plain error standard where the defendant failed to raise constitutional and Rule 11 claims below).

To establish plain error, a defendant must show there is (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, we may exercise our discretion to recognize a forfeited error, but only if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings. Under plain error review, the defendant bears the burden of persuasion with respect to prejudice or the effect on substantial rights. When neither the Supreme Court nor this Court has resolved an issue, and other circuits are split on it, there can be no plain error in regard to that issue.

Id. at 1019 (internal quotations and citations omitted) (alteration in original). Furthermore, "a defendant who seeks reversal of his conviction after a guilty plea, on the ground that the district court committed plain error under Rule 11, must show a reasonable probability that, but for the error, he would not have entered the plea." United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 2340, 159 L.Ed.2d 157 (2004).

2. Due Process

Evans argues that the district court misinterpreted the requirements of 18 U.S.C. § 2332a and 18 U.S.C. § 876(c). Evans asserts that, because of the court's misinterpretation, h...