U.S. v. Dudley, No. 06-11146. Non-Argument Calendar.

• Citation: 463 F.3d 1221
• Decision Date: 08 September 2006
• Docket Number: No. 06-11146. Non-Argument Calendar.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tracey DUDLEY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

463 F.3d 1221

UNITED STATES of America, Plaintiff-Appellee, v. Tracey DUDLEY, Defendant-Appellant.

No. 06-11146. Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

September 8, 2006.

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J. Stephen Lewis (Court-Appointed), Beckmann & Lewis, Savannah, GA, for Dudley.

Amy Lee Copeland, Savannah, GA, for U.S.

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

Before DUBINA, CARNES and HULL, Circuit Judges.

CARNES, Circuit Judge:

On the morning of March 15, 2005 Judge Louisa Abbot's secretary, Angela Bufalini, who routinely opens the chambers' mail, let out a loud scream and walked into Judge Abbot's office covered in white powder. Ms. Bufalini explained that it happened when she opened a letter. She went into the bathroom to try to wash the substance off. Suspecting the white powder might be anthrax, the judge asked Ms. Bufalini to notify the sheriff's office. After washing her hands, the secretary handed the letter to Judge Abbot's primary deputy, Anthony Davis. The sheriff's office was notified, and Judge Abbot was told to leave the building.

The sheriff's office placed Ms. Bufalini and Deputy Davis under quarantine in her office. Judge Abbot went home. Ms. Bufalini called to let her know the contents of the letter which reads:

The judicial system has been very unfair and cruel to people like myself. You and your courtroom has contributed to this unfairness for which I and my relatives as well as my homies has suffered. What happened to the judge in Atlanta was fair and just. He received reward for handing down unjust sentences with his racial ass. So I'm acting as a judge and is handing down a just sentence on you. You've just been infected and contaminated with anthrax bitch. If I ever get the opportunity or appear in your courtroom I will definately [sic] kill you, your deputies and anyone else who get in my way and try to stop me. Until then you will die slowly from anthrax. Die Bitch. May death visit you. Death. Die bitch. Death.

Presentence Investigation Report ¶ 5 (quoting letter reproduced with errors). The letter was not signed, but the envelope contained a return address indicating that the sender was "Emmanuel Porter," an inmate at Coastal State Prison.

Ms. Bufalini and Deputy Davis remained in quarantine for several hours while the Savannah Fire Department hazardous materials unit tested the substance to determine whether it was anthrax. While it was later determined that the white powder was not anthrax, Judge Abbot remained at her home for approximately three hours thinking that it was and that someone had intended to kill her. The statement in the letter that "[w]hat happened to the judge in Atlanta was fair and just" was an obvious reference to the murder of Superior Court Judge Rowland Barnes who was killed in his Atlanta courtroom on March 11, 2005, just four days before Judge Abbot received the threatening letter.

The sheriff's office called to inform Judge Abbot that she would be under twenty-four hour guard and that she needed to inform her family of the incident. Her fourteen-year-old daughter returned from school, and Judge Abbot told her about the incident, instructed her not to go to the door, and said that she would need to be accompanied by her father for the remainder of the day. At the sentencing hearing Judge Abbot stated: "I remember the tears on my daughter's face as she had to accept the reality that there was someone out there in the world who wanted to murder her mother."

Later that day Judge Abbot returned to the courthouse. She was informed that the sheriff's department was conducting an investigation and the Federal Bureau of Investigation had been notified. She learned that half of the second floor of the courthouse had been vacated and another judge's chambers evacuated. She also explained at sentencing that "[a]t that time this occurred there was a high-profile murder case going on. Court TV was televising it. There were extraordinary efforts to keep other people from knowing about this [letter] because of the fear of causing a mistrial" in that case.

When Judge Abbot returned home she had police protection. She explained: "Deputy Davis remained with me throughout that evening. He accompanied me wherever I went. He checked out my house, my yard. We had no idea whether or not this came from someone outside of the walls of a prison, or inside the walls of a prison, or whether or not it came from a family member of someone inside a prison. We had no idea. I was accompanied throughout the next day. Ultimately it was determined that [the letter] did come from Coastal [State Prison], and that I no longer needed to be required to have protection, but just to continue to exercise caution."

The substance in the envelope was analyzed by the Centers for Disease Control in Atlanta, Georgia and the FBI's forensic laboratory in Quantico, Virginia, where it was determined that the envelope contained talcum powder. The FBI investigation revealed that the letter was not sent from Emmanuel Porter, but instead was sent from Tracey Dudley who was also an inmate at Coastal. Dudley admitted that he wrote Porter's name in the return address line because he hoped that sending the letter would induce Judge Abbot to arrange for Porter's removal from Coastal. That hope was not realized.

Instead, on July 14, 2005, Dudley was indicted with one count of mailing a threatening communication in violation of 18 U.S.C. § 876(c). Dudley pleaded guilty and entered into a written plea agreement with the government. The district court sentenced him to 60 months imprisonment, and he now contends that the district court erred at sentencing by: (1) enhancing his sentence pursuant to U.S.S.G. § 2A6.1(b)(4) for substantially disrupting public or governmental functions and (2) denying his request for a downward departure under U.S.S.G. § 5H1.4 based on his HIV-positive status.

I.

Dudley supports his first contention, that the district court erred in enhancing his sentence under U.S.S.G. § 2A6.1(b)(4), with four arguments: (1) any disruption of public or governmental functions that resulted from his threatening communication was not "substantial"; (2) the enhancement constituted impermissible double-counting as his offense was already enhanced for threatening a public official; (3) the district court improperly relied on hearsay at his sentencing hearing; and (4) the enhancement violated his Sixth Amendment due process rights under Booker and Apprendi.

A.

Dudley's first argument with respect to § 2A6.1(b)(4) is that the interference resulting from his letter was not a "substantial disruption." We review the district court's application and interpretation of the sentencing guidelines de novo. United States v. Norris, 452 F.3d 1275, 1280 (11th Cir.2006).

Section 2A6.1(b)(4) of the guidelines provides that an offense level for threatening or harassing communications may be enhanced if "the offense resulted in (A) substantial disruption of public, governmental, or business functions or services." U.S.S.G. § 2A6.1(b)(4). No other circuit has addressed this specific guideline enhancement in a published opinion, but some have addressed the meaning of "substantial" in the context of interference with the administration of justice under § 2J1.2(b)(2). See United States v. Leung, 360 F.3d 62, 67-68 (2d Cir.2004) (the cost of interviewing numerous witnesses where the defendant faked his own death to avoid prosecution was substantial); United States v. Tankersley, 296 F.3d 620, 623 (7th Cir.2002) (the cost associated with weeks of investigating to find proceeds from the sale of a yacht and to uncover other assets was substantial); United States v. Alwan, 279 F.3d 431, 436-37, 440-41 (7th Cir.2002) (the interference with administration of justice caused by defendant's continued refusal to testify before the grand jury was substantial); United States v. Sinclair, 109 F.3d 1527, 1540 (10th Cir.1997) (the interference with administration of justice caused by forcing the reinterviewing and recalling of two witnesses was substantial).

The dictionary defines "substantial" as "of ample or considerable amount, quantity, size, etc." Random House Unabridged Dictionary 1897 (2d ed.1993). It defines "disruption" as "forcible separation or division into parts" or "a disrupted condition." Id. at 569. The word "disruption" cross-references to "disrupt," which means "to cause disorder or turmoil in." Id.

Dudley's threatening letter resulted in closing half a floor of the state courthouse for two hours and the suspension of judicial business involving Judge Abbot for longer than that. The letter also resulted in an interruption of judicial business involving Judge Penny Freesemann, whose chambers were located in the same building. During that time, the hazardous materials unit responded to the emergency and an officer and Judge Abbot's secretary were placed under quarantine while the FBI determined whether the white powder from the envelope contained anthrax. In addition, the sheriff's department had to place an officer on a 24-hour security detail to protect Judge Abbot. Afterwards, she had to spend many hours speaking with the F.B.I. and U.S. Attorney's office about the case.

As the district court put it: "That seems pretty substantial to me." The disorder and turmoil caused by Dudley's letter was, in the terms of the dictionary definition, "of ample or considerable amount." Judge Abbot and another judge in the building were entirely prevented from doing their jobs for several hours on the day the letter arrived, and Judge Abbot has been distracted from her work for many hours since that time as a result of the letter. Not only that, but law enforcement personnel were diverted from their other duties to provide around-the-clock security for the judge.

B.

Dudley's next argument regarding § 2A6.1(b)(4) is that it...