88 F.3d 938 (11th Cir. 1996), 93-4116, United States v. Taylor

Docket Nº:93-4116.
Citation:88 F.3d 938
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. David S. TAYLOR, Defendant-Appellant.
Case Date:July 23, 1996
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 938

88 F.3d 938 (11th Cir. 1996)

UNITED STATES of America, Plaintiff-Appellee,

v.

David S. TAYLOR, Defendant-Appellant.

No. 93-4116.

United States Court of Appeals, Eleventh Circuit

July 23, 1996

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Bruce S. Harvey, Atlanta, GA, for appellant.

Roberto Martinez, U.S. Atty., Miami, FL, Richard P. Murad, U.S. Atty's Office, Ft. Lauderdale, FL, Linda Collins Hertz, Miami, FL, Suzan H. Ponzoli, Miami, FL, Robert B. Cornell, Ft. Lauderdale, FL, for appellee.

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

Before CARNES, Circuit Judge, and FAY and GIBSON [*], Senior Circuit Judges.

CARNES, Circuit Judge:

David S. Taylor appeals his 1991 conviction and sentence on two counts of sending threatening communications through the mail in violation of 18 U.S.C. § 876. Taylor raises two issues related to his conviction, but those do not merit discussion. 1 He also raises issues related to his sentence, and those do merit discussion, although not reversal. Those sentence issues involve the United States Sentencing Guidelines ("U.S.S.G.")

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§ 2A6.1(b)(1) enhancement for conduct evidencing an intent to carry out the threat he made; the § 3C1.1 enhancement for obstruction of justice; and the § 5K2.0 upward departure he received.

I. BACKGROUND

This case arose out of Taylor's actions in stalking Kathleen Goldstein, his former high school girlfriend, and her family, over a period of twenty years. Taylor was indicted in 1990 on two counts of mailing threatening communications in violation of 18 U.S.C. § 876. The communications consisted of two greeting cards in which Taylor stated, among other things, that Mrs. Goldstein would be widowed and that her husband was going to die of a "cerebral vascular accident of an unknown idiopathy." A jury convicted Taylor on both counts.

The district court granted Taylor's motion for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29, but in a previous appeal of this case we reversed, reinstated the conviction, and remanded for sentencing. United States v. Taylor, 972 F.2d 1247 (11th Cir.1992). Because Taylor's stalking of the Goldsteins is detailed in our opinion reversing the district court's grant of Taylor's Rule 29 motion, id. at 1248-50, we will not repeat the facts here except where germane to our discussion.

On remand for sentencing in January 1993, the district court sentenced Taylor to 49 months' imprisonment on count 1 and 48 months' imprisonment on count 2 to run consecutively, for a total of 97 months' imprisonment. In addition, the court sentenced Taylor to three years of supervised release to follow his imprisonment and ordered him to pay a $100 special assessment. As part of Taylor's supervised release, the district court imposed as a special condition that he not have any direct or indirect contact with the victims in this case.

II. DISCUSSION

"Under the Sentencing Guidelines, a district court identifies the base offense level assigned to the crime in question, adjusts the level as the Guidelines instruct, and determines the defendant's criminal history category. Coordinating the adjusted offense level and criminal history category yields the appropriate sentencing range." Koon v. United States, --- U.S. ----, ----, 116 S.Ct. 2035, ----, --- L.Ed.2d ----, 1996 WL 315800, at * 6 (U.S. June 13, 1996) (citation omitted). The district court may sentence the defendant outside of that sentencing range, however, if the case is "atypical," i.e., "one to which a particular guideline linguistically applies but where conduct significantly differs from the norm." Id. at ----, 116 S.Ct. at ----, 1996 WL 315800, at * 9 (quoting U.S.S.G. Ch. 1, Pt. A, § 4(b), intro. comment. (Nov.1995)).

The district court in this case sentenced Taylor pursuant to § 2A6.1(a) of the United States Sentencing Guidelines, Guidelines Manual (Nov. 1992), which prescribes a base offense level of 12. The district court increased the offense level by six pursuant to U.S.S.G. § 2A6.1(b)(1), an enhancement based on a specific offense characteristic, because Taylor had engaged in conduct evidencing an intent to carry out the threats contained in his communications. The court added two more levels pursuant to § 3C1.1 for obstruction of justice because Taylor had repeatedly refused to provide the government with handwriting exemplars, and when he finally did, he attempted to disguise his writing. The court arrived at an adjusted offense level of 20 and determined that Taylor had a criminal history category of III. The sentencing range for an offense level of 20 with a criminal history category of III is 41 to 51 months' imprisonment. The district court did not sentence Taylor within that range, however, but instead departed upward by eight levels, which resulted in a sentencing range of 97 to 121 months' imprisonment. The court then sentenced Taylor to a total of 97 months' imprisonment.

Taylor makes the following contentions related to his sentence: (1) the district court improperly applied a six-level specific offense characteristic enhancement for conduct evidencing an intent to carry out the threats; (2) the district court erred by applying a two-level enhancement for obstruction of justice; and (3) the district court erred by applying

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an eight-level upward departure to his offense level due to various aggravating factors.

"We review the factual findings underlying the district judge's decision for 'clear error,' but we review his application of the sentencing guidelines to those facts with only 'due deference.' " United States v. Long, 935 F.2d 1207, 1211 (11th Cir.1991) (quoting 18 U.S.C. § 3742(e)); see also Koon, --- U.S. at ----, 116 S.Ct. at 2046; United States v. Page, 69 F.3d 482, 488 n. 5 (11th Cir.1995). In the context of applying enhancements pursuant to specific offense characteristics and for obstruction of justice, this Court has held that our scope of review is de novo. E.g., United States v. Hansley, 54 F.3d 709, 715 (11th Cir.) (specific offense characteristic), cert. denied, --- U.S. ----, 116 S.Ct. 539, 133 L.Ed.2d 444 (1995); United States v. Ruff, 79 F.3d 123, 125 (11th Cir.1996) (obstruction of justice). We review a district court's departure from the applicable sentencing guideline range for abuse of discretion. Koon, --- U.S. at ----, 116 S.Ct. at ----, 1996 WL 315800, at * 8.

A. ENHANCEMENT FOR CONDUCT INDICATING AN INTENT TO CARRY OUT THE THREATS

The guideline for the crime of mailing threatening communications provides for an increase in the base offense level if the defendant "engaged in any conduct evidencing an intent to carry out such threat." U.S.S.G. § 2A6.1(b)(1). The guideline commentary states that the offense covers "a wide range of conduct, the seriousness of which depends upon the defendant's intent and the likelihood that [he] would carry out the threat." U.S.S.G. § 2A6.1, comment. (backg'd).

Taylor argues that we should follow United States v. Hornick, 942 F.2d 105 (2d Cir.1991), cert. denied, 502 U.S. 1061, 112 S.Ct. 942, 117 L.Ed.2d 112 (1992), in which the Second Circuit held that only post-threat conduct evidence can be considered in determining whether to apply the § 2A6.1(b)(1) specific offense characteristic enhancement. We recently rejected the Second Circuit's rule in United States v. Barbour, 70 F.3d 580 (11th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1445, 134 L.Ed.2d 565 (1996), and instead joined the Fourth, Seventh, and Ninth Circuits in holding that pre-threat conduct may be considered in determining whether to apply this enhancement. See id. at 586-87; see also United States v. Hines, 26 F.3d 1469, 1473-74 (9th Cir.1994); United States v. Gary, 18 F.3d 1123, 1128 (4th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 134, 130 L.Ed.2d 77 (1994); United States v. Fonner, 920 F.2d 1330, 1332-33 (7th Cir.1990). We noted that this specific offense characteristic serves to distinguish cases based upon the defendant's intent and the likelihood that he will carry out the threat and stated that:

If the defendant's acts demonstrate both that he or she intends to act on the threat and is, in fact, likely to do so...

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