U.S. v. Bonner, s. 94-8660
| Decision Date | 13 June 1996 |
| Docket Number | 94-8713,Nos. 94-8660,s. 94-8660 |
| Citation | 85 F.3d 522 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. John Wesley BONNER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
R. Gary Spencer, Federal Defender Program, Atlanta, GA, for Appellant.
David C. Nutter, Asst. U.S. Atty., Atlanta, GA, for Appellee.
Appeals from the United States District Court for the Northern District of Georgia.
Before BIRCH, Circuit Judge, and CLARK and WEIS *, Senior Circuit Judges.
In 1989, defendant John Wesley Bonner pled guilty to attempted bank robbery (No. 1:89-00298-CR-1), and was sentenced to 33 months imprisonment and 3 years supervised release. Assistant United States Attorney Janet F. King handled the prosecution. Defendant was released from prison and began serving his term of supervised release on May 19, 1992.
From October 9, 1992, until October 25, 1993, defendant made twenty anonymous, threatening telephone calls to Assistant U.S. Attorney King from pay telephones in the Atlanta, Georgia area. During the telephone calls, defendant made the following threats:
Defendant made the second of two calls on October 25, 1993, from a pay phone in view of Federal Bureau of Investigation agents who were conducting surveillance, and was immediately arrested. He was indicted on twenty counts of threatening to assault and murder an Assistant U.S. Attorney in retaliation for her previous prosecution of him, in violation of 18 U.S.C. § 115(a)(1)(B) (No. 1:93-CR-461-1). A petition for violation of his supervised release term based on his arrest was filed in his earlier conviction.
Defendant pled guilty to all twenty counts in the indictment. The district court overruled the defendant's objection that the The district court subsequently revoked his term of supervised release in the attempted bank robbery conviction. The district court found that the defendant's threats of "I'm going to cut you open, I want revenge, it won't be long now" fell within the § 4B1.2 definition of crime of violence and, therefore, within a Grade A violation as defined by U.S.S.G. § 7B1.1(a). Defendant was sentenced to 15 months imprisonment consecutive to the term of imprisonment in the threats conviction. Defendant appealed, our case No. 94-8713. This court consolidated the two appeals.
threatening calls should be grouped because they were all part of the same course of conduct, and gave him a five-level adjustment for multiple counts under U.S.S.G. § 3D1.4. Defendant was sentenced to 37 months imprisonment, one year supervised release, and a $1,000 special assessment, and appealed, our case No. 94-8660
Bonner argues that all the acts or telephone calls were connected by the common criminal objective of threatening the victim, and constituted a single offense involving substantially the same harm to the same victim, although over a period of a year. He contends that, despite the exclusion from grouping under U.S.S.G. § 3D1.2(d), the counts could still be grouped under § 3D1.2(b). Bonner maintains that his case is distinguishable from those where multiple acts of violence occur to the same victim on different occasions because he did not act on his threats.
If a defendant is convicted of multiple counts, the guidelines require the sentencing court to group closely related counts. 1 "All counts involving substantially the same harm shall be grouped together in a single Group." 2 Multiple counts involve substantially the same harm when the offense behavior is ongoing or continuous in nature and the offense guideline is written to cover such behavior. 3 However, all offenses covered under Chapter Two, Part A are specifically excluded from grouping under § 3D1.2(d). 4 Thus, because the defendant's offense level was computed under § 2A6.1(a), i.e., Chapter Two, Part A, the counts were excluded from grouping under subsection (d). This, however, does not necessarily preclude grouping under another subsection. 5
Under § 3D1.2(b), counts involve substantially the same harm "[w]hen counts involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan." 6 "[C]ounts that are part of a single course of conduct with a single criminal objective and represent essentially one composite harm to the same victim are to be grouped together, even if they constitute legally distinct offenses occurring Other circuits have addressed this issue. In United States v. Wilson, 13 the defendant contacted an ex-girlfriend to hire someone to kill his wife. The defendant pled guilty to six counts of use of interstate facilities with the intent that his wife be killed by making five telephone calls and mailing one letter to his ex-girlfriend over a two-week period. 14 The sentencing court refused to group the counts. 15 The Sixth Circuit vacated, holding that grouping under § 3D1.2(b) was required because the separate acts created a single "harm." 16 The court reasoned that the defendant's wife was "the victim of all six acts and the six acts involved the same objective: her death." 17
at different times." 7 However, multiple, separate instances of fear and risk of harm, not one composite harm, occur when the defendant robs or rapes the same victim on different occasions and the offenses are not to be grouped together. 8 Also, in an example given in the guidelines, where "[t]he defendant is convicted of two counts of assault on a federal officer for shooting at the officer on two separate days[,] the counts are not to be grouped together." 9 The decision on whether to group several counts involving the same victim is not always clear cut, and although existing case law may provide some guidance, courts should look to the underlying policy as stated in the Guidelines' Introductory Commentary. 10 The Introductory Commentary recognizes that different rules are required for dealing with multiple-count convictions involving offenses with repetitive and ongoing behavior and those that are oriented more toward single episodes of behavior. 11 This court reviews a district court's refusal to group multiple counts of conviction with due deference. 12
In United States v. Norman, 18 the defendant pled guilty to making two false reports over a two-day period to an airline claiming that his ex-wife's suitor was aboard a plane carrying a firearm and explosives. After the third false report, airport security officers located the suitor, removed him from the airplane in handcuffs, questioned him, and In United States v. Miller, 22 the defendant mailed threatening letters to the victim over a four-month period. 23 The Second Circuit affirmed the refusal to group the counts under § 3D1.2(b), reasoning that, although the letters were arguably part of a common scheme of harassment, the sentencing court properly found that each letter inflicted separate psychological harm. 24
released him. 19 The sentencing court refused to group the counts. 20 The Tenth Circuit vacated, holding that the counts should have been grouped under § 3D1.2(b). Relying on Wilson, the court determined that the scheme had only one course of conduct (making false reports to the airline); only one criminal objective (to harm the suitor); and only one composite harm to one victim (subjecting the suitor to arrest). 21
The circumstances in Wilson and Norman are distinguishable from this case. In Wilson, each telephone call, a legally separate crime in itself, was part of a single course of conduct leading up to the end result or single objective and one composite harm: the hiring of someone to kill the defendant's wife. Similarly, in Norman, each false report, again a crime in itself, was a single course of conduct leading up to the single criminal objective and one composite harm: the arrest of the victim. Accordingly, in Wilson and Norman, once the single purpose of each scheme and one harm--the hiring of someone to kill the defendant's wife and the arrest of the suitor of the defendant's wife--were accomplished, the schemes terminated. However, in the present case, there were multiple purposes and harms because the defendant did not terminate his scheme after he harassed the victim with the first telephone call. Also in Wilson and Norman, the defendants never had any contact with the victims of the scheme, but rather only third-parties. Therefore, in Wilson and Norman, unlike the present case, the defendants never created multiple, separate instances of fear in the victims of those schemes.
The situation in this case appears similar to the situation in Miller. In Miller, as in this case, each separate threatening communication, a crime in itself, had a single purpose or objective and inflicted one composite harm: to harass the victim. The scheme in Miller, as in this case, had multiple purposes and harms because the defendant did not terminate his scheme after he harassed the victim with the first threatening communication. Therefore, although the threatening communications were arguably part of a common overall scheme of harassment, the victim in this case suffered separate and distinct instances of fear and psychological harm with each separate threatening communication. The district court properly refused to group the twenty counts under § 3D1.2(b).
The defendant argues that making a threatening telephone call is not a "crime of violence," a Grade A violation, but rather a Grade B violation. He contends that, under United States v. Philibert, 25 making threats does not constitute a "crime of violence." He also maintains that his conduct was non-violent because he...
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