U.S. v. Poff

• Decision Date: 14 February 1991
• Docket Number: No. 89-3017,89-3017
• Citation: 926 F.2d 588
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carolyn Kay POFF, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 588

926 F.2d 588

UNITED STATES of America, Plaintiff-Appellee, v. Carolyn Kay POFF, Defendant-Appellant.

No. 89-3017.

United States Court of Appeals Seventh Circuit.

Argued Nov. 27, 1990.

Decided Feb. 14, 1991.

Andrew B. Baker, Jr., Asst. U.S. Atty., Hammond, Ind., Thomas O. Plouff, Asst. U.S. Atty., Office of the U.S. Atty., South Bend, Ind., for plaintiff-appellee.

David B. Weisman, Weisman & Associates, South Bend, Ind., for defendant-appellant.

Before BAUER, Chief Judge, and CUMMINGS, WOOD, Jr., CUDAHY, POSNER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION, and KANNE, Circuit Judges.

FLAUM, Circuit Judge, with whom BAUER, Chief Judge, and CUMMINGS, WOOD, Jr., RIPPLE, and KANNE, Circuit Judges, join.

Can a "crime of violence" also be a "non-violent offense"? We heard this case en banc to answer this seemingly straightforward question. The career offender provision of the Sentencing Guidelines defines a "crime of violence" as, inter alia, any offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another." U.S.S.G. Sec. 4B1.2(1)(i); see also 18 U.S.C. Sec. 16 (progenitor of the Guideline definition). The Guidelines also authorize judges to depart downward from an otherwise applicable sentencing range if a defendant committed "a non-violent offense while suffering from significantly reduced mental capacity," U.S.S.G. Sec. 5K2.13, but don't define "non-violent offense." We must determine whether that term can encompass a "crime of violence" as defined in Sec. 4B1.2.

These two provisions are at issue because the appellant has a history of both mental illness and making threats. She is a forty-four year-old woman convicted for writing six threatening letters to President Reagan in 1988. See 18 U.S.C. Sec. 871. Her father, now deceased, sexually abused her until she was twenty, and she has since been in and out of psychiatric institutions as an adult. Among the manifestations of her mental illness is her penchant for threatening public officials at, she believes, the behest of her dead father. Before she began writing to President Reagan, she had been convicted of making two bomb threats, of threatening a county prosecutor, and of arson for setting a hotel room on fire. Her probation was revoked in 1979, after she wrote five threatening letters to President Carter.

Appellant admitted that she threatened President Reagan, but raised an insanity defense at trial. A jury convicted her, and her prior convictions required the trial judge to apply the career offender provision of the Guidelines to her sentence, producing a fifty-one month sentence. See Sec. 4B1.1; United States v. McCaleb, 908 F.2d 176, 178 (7th Cir.1990) (a threat is a crime of violence to which Sec. 4B1.1 applies); United States v. Left Hand Bull, 901 F.2d 647, 649 (8th Cir.1990) (same). Appellant submits that the provision did not apply to her since all concede that she never intended to carry out her threats, but the Guidelines do not condition application of the enhancement on whether the defendant intended to make good on the threat. Threats are themselves a form of violence that "may be costly and dangerous to society in a variety of ways, even when their authors have no intention whatever of carrying them out." Rogers v. United States, 422 U.S. 35, 46-47, 95 S.Ct. 2091, 2098-99, 45 L.Ed.2d 1 (1975) (Marshall, J., concurring); cf. United States v. White, 903 F.2d 457, 467 (7th Cir.1990) (including threats as a type of violent conduct); French v. Owens, 777 F.2d 1250, 1257 (7th Cir.1985) (describing threats as a lesser form of violence). For that reason, 18 U.S.C. Sec. 871 criminalizes the utterance of a threat, not the intent to carry it out. United States v. Hoffman, 806 F.2d 703, 706-07 (7th Cir.1986); see also Left Hand Bull, 901 F.2d at 649 (defendant's inability to carry out threat is irrelevant). Both Congress (see 18 U.S.C. Sec. 16) and the Sentencing Commission have deemed it appropriate to incapacitate for a longer period recidivists who have demonstrated a violent nature in the past by threatening others, whether or not they carried out their threats or intended to do so. When a defendant did manifest an intent to carry out the threat, the Guidelines require courts to increase the sentence from the base offense level. See Sec. 2A6.1(b) (increase base offense level by six in such cases). And, when the threatened victim is the President, the Guidelines call for longer sentences still. See Application Note 2 to Sec. 3A1.2; McCaleb, 908 F.2d at 177. The district court did not apply Sec. 3A1.2 to appellant's sentence, but should have since the adjustment factor of Sec. 3A1.2 is mandatory.

The Commission also concluded, however, that in some cases it may be appropriate to reduce the sentences of defendants who have "committed a non-violent offense while suffering from significantly reduced mental capacity not resulting from voluntary use of drugs or other intoxicants...." U.S.S.G. Sec. 5K2.13 (policy statement). The Guidelines permit, but do not require, sentencing judges to depart downward from the otherwise applicable sentencing range in such cases. Appellant asked the district court to depart on this basis. Judge Miller, in a thoughtful sentencing memorandum, 723 F.Supp. 79 (N.D.Ind.1989), concluded that Sec. 5K2.13 does not authorize departure in cases, like this one, where a defendant was convicted of a "crime of violence" as defined by Sec. 4B1.2 of the Guidelines.

The government claims that we have no jurisdiction to review a refusal to depart from the Guidelines. That is true when the refusal reflects an exercise of the judge's discretion. United States v. Ojo, 916 F.2d 388, 394 (7th Cir.1990); United States v. Franco, 909 F.2d 1042, 1045 (7th Cir.1990). Judge Miller, however, declined to depart because he believed the Guidelines did not permit him to do so in this case. See 723 F.Supp. at 84-85. That was a legal conclusion, not an exercise of discretion. 18 U.S.C. Sec. 3742(a)(1) authorizes appeal whenever a sentence is "imposed in violation of law," a source of jurisdiction that permits appellate review of legal interpretations of the Guidelines. We therefore agree with United States v. Bayerle, 898 F.2d 28, 31 (4th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 65, 112 L.Ed.2d 39 (1990), that a decision not to depart is reviewable on appeal if it is the product of a conclusion that the judge lacks authority to depart. See also United States v. Prescott, 920 F.2d 139 (2d Cir.1990); United States v. Chotas, 913 F.2d 897, 899 (11th Cir.1990); United States v. Cheape, 889 F.2d 477, 480-81 (3d Cir.1989); United States v. Russell, 870 F.2d 18, 20-21 (1st Cir.1989). The government cites United States v. Franz, 886 F.2d 973 (7th Cir.1989), to support its position, but that case involved a discretionary refusal to depart. Moreover, Franz acknowledged that 18 U.S.C. Sec. 3742(a)(1) authorizes appellate review of a refusal to depart that is based on an erroneous legal conclusion about the court's authority to depart. Id. at 981.

Although we have jurisdiction to consider this appeal of the district court's decision not to depart, we agree with the court's conclusion that it lacked authority under Sec. 5K2.13 to do so. (Appellant does not allege that the district court had authority to depart because a mere policy statement like Sec. 5K2.13 does not exhaust the possible grounds for departure, a claim we adverted to in United States v. Bayles, 923 F.2d 70, 71-72 (7th Cir.1991). We did not address the claim in Bayles, and will not do so here since it has not been raised.) Appellant's claim with respect to Sec. 5K2.13 is the same one she raised as to Sec. 4B1.2: she claims that threatening President Reagan was a "non-violent offense" since she didn't carry through on her threats. We disagree, for the same reasons we have already expressed. Threats are themselves a form of violence, and Sec. 4B1.2 defines her crime as one "of violence." Section 4B1 is a career offender provision, but contrary to the dissent's suggestion, the Guidelines do not define a threat as a "crime of violence" only when uttered by a career offender. Rather, they define "career offenders" as those who have a history of committing crimes of violence, among these, making threats. The incongruity of appellant's position is not a product of her status as a career offender; her argument would be just as untenable were she a first offender. We decline to adopt an argument that rests on the premise that the Guidelines define the same act as both a "crime of violence" and a "non-violent offense."

Appellant observes, however, that the Commission did not define "non-violent offense" in Sec. 5K2.13. That, she submits, is an omission suggesting that the Commission meant different things by "violent offense" and "crime of violence." Courts often say that the choice of different words reflects an intent to say something different. See, e.g., Zabielski v. Montgomery Ward & Co., 919 F.2d 1276, 1279 (7th Cir.1990). But here the Commission used the same word--"violence." True, in one case it used a negative construction--"non-violent"--and in the other case used a prepositional phrase containing the noun "violence" as a modifier rather than using the simpler adjective "violent"--but the root, and meaning, are the same in both cases. (One might ascribe significance to the use of "offense" in Sec. 5K2.13 and "crime" in Sec. 4B1.2, but that would not help appellant since "offense" encompasses a broader spectrum of illegality than does "crime.") "[A] rather heavy load rests on him who would give different meanings to the same word or the same phrase when used a plurality of times in the same Act...." United States v. Montgomery Ward & Co., 150 F.2d 369, 377 (7th Cir.1945). Appellant cannot meet that burden by asking us to tease meaning from the Commission's use of a prepositional phrase rather than an adjective....