U.S. v. Fonner

Decision Date14 December 1990
Docket NumberNo. 89-3054,89-3054
Citation920 F.2d 1330
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Barron D. FONNER, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Rodger A. Heaton, Asst U.S. Atty., Indianapolis, Ind., Richard N. Cox, Asst. U.S. Atty., Danville, Ill., for plaintiff-appellee.

Jerold S. Solovy, R. Douglas Rees, Darryl M. Bradford, Jenner & Block, Chicago, Ill., for defendant-appellant.

Before BAUER, Chief Judge, EASTERBROOK, Circuit Judge, and WILL, Senior District Judge. *

EASTERBROOK, Circuit Judge.

In 1972 Barron Fonner slit the throat of Pete Lackey, a state police officer who had arrested him for a drug offense. Fonner was charged with murder, tried, and acquitted; the jury evidently accepted Fonner's contention that he acted in self defense. More than 15 years later Fonner mailed a death threat to Philip Kocis, Commander of the Illinois State Police, who worked with Lackey in 1972. Fonner also threatened to kill Chief Judge Baker of the Central District of Illinois, who sentenced Fonner in 1982 for threatening President Reagan. The two latest menacing letters produced convictions for violating 18 U.S.C. Sec. 876, which prohibits mailing threats.

The Sentencing Guidelines apply to Fonner's crimes. Guideline 2A6.1 specifies a base offense level of 12, increased by 3 under Sec. 3A1.2 because the threats were made against public officials. Grouping produced a 2-level increase under Sec. 3D1.4, for a total offense level of 17. Fonner received 6 criminal history points: 3 because of his prior conviction for mailing threats, Sec. 4A1.1(a), and another 3 because he mailed these threats within two years of his release from prison (and while under post-release supervision), Sec. 4A1.1(d) & (e). This combination produced a guideline range of 30-37 months' imprisonment. Instead of sentencing Fonner within this range, the district judge gave him 120 months' imprisonment, the statutory maximum.

The court's order explained that Fonner's criminal history score underrepresents the seriousness of his criminal record for three reasons: (1) the killing in 1972 was not reflected in the score; (2) eight convictions for unrelated offenses also were omitted; and (3) Fonner's mental instability (he wrote the letters from a mental hospital) makes it more likely that he will commit additional offenses. From the bench, the judge added a fourth reason: Judge Baker sentenced Fonner to 10 years' imprisonment in 1982 for earlier threats, and "[t]o now sentence [Fonner] to a lesser period of imprisonment under guideline procedures would not only deprecate the seriousness of this repeat offense behavior, but also represent a disparate sentence." Fonner contends that none of these four, separately or together, justifies a sentence exceeding 37 months. He contends, indeed, that he is entitled to a sentence of fewer than 30 months because he accepted responsibility for his acts.

After the district court rendered its sentence, this court held in a series of cases that not only the fact, but also the extent, of a departure from the guidelines must be reasonable. E.g., United States v. Schmude, 901 F.2d 555, 559 (7th Cir.1990); United States v. Ferra, 900 F.2d 1057, 1061-64 (7th Cir.1990). United States v. Scott, 914 F.2d 959 (7th Cir.1990), the most recent, discusses the others. The district judge did not explain why he quadrupled the amount prescribed, the largest percentage increase we could find in cases reported in this circuit. Even if Fonner's criminal history category of III were increased to category VI, the highest at 13 or more criminal history points, the sentencing range increases only to 51-63 months, about half of what he received. As we observed in both Schmude and Ferra, a district judge may "construct" higher criminal history categories by adding 10% to 15% to the range for each new category, or alternatively by reading down the guideline table. (Movements down, to higher offense levels, are equivalent in the table to movements across, to higher criminal history categories.) To reach 120 months for a level 17 offense, the judge would have to leap from category III to "category XIII". Criminal history categories III, IV, and V span three points apiece. The real category VI starts at 13 points; "category XIII" then would be equivalent to 31 or more criminal history points.

Nothing in this record supports so spectacular an increase. Our review of both departures and failures to depart is deferential, United States v. Marshall, 908 F.2d 1312, 1326 (7th Cir.1990) (in banc), but we must ensure that the district judge attempted to make departures in line with the structure of the guidelines. If Fonner had been convicted of killing agent Lackey, that would have meant only three additional points, see Sec. 4A1.1(a), and if all of the other convictions were includable they would have generated a total of four more, Sec. 4A1.1(c). That would get Fonner only to 13, the minimum for category VI. Just as other-crime evidence cannot lead to a departure exceeding the increase that would have resulted had the defendant been charged with and convicted of the additional offenses, Ferra, 900 F.2d at 1063, so a defendant's past cannot justify an increase in criminal history category exceeding the level that would have been appropriate had the facts been counted expressly. The case must be remanded for resentencing more in line with the guidelines. Because issues may recur on remand, we discuss Fonner's objections to the four considerations the district judge invoked to justify departure.

1. Fonner observes that he was acquitted of murdering agent Lackey and contends that a court may never take into account charges that ended in acquittal. The district judge did not conclude, however, that Fonner murdered agent Lackey; he struck the term "murder" from the presentence report and substituted "killed". Fonner admits taking Lackey's life; the question at trial in state court was whether he had a legal justification.

The fact of the knifing is relevant, if not to criminal history then to the seriousness of the threat. Fonner threatened Lackey's fellow agent. The letter to Kocis said, in part: "If I ever see Phillip A. Kocis or that Lackey (whatever he calls himself now) thing they will be dead as two rats in the hold." Evidence at the trial in 1972 implied that Fonner staged an automobile collision with Lackey in order to have the chance to confront him. The link between Lackey and Kocis makes a threat against Kocis more serious. Guideline 2A6.1(b)(1) provides: "If the defendant engaged in any conduct evidencing an intent to carry out [the] threat, increase by 6 levels." Increasing the offense level from 17 to 23 would mean increasing the presumptive sentencing range from 30-37 months to 57-71 months.

Nothing in either the guidelines or the Constitution prevents a judge from taking account of conduct in which the defendant engaged, whether or not an acquittal prevents the imposition of criminal penalties directly on that conduct. A verdict of "not guilty" does not mean that the defendant didn't do it; it means that the prosecution failed to establish culpability beyond a reasonable doubt. The facts, when properly established according to a lower standard of proof, may be used as evidence in another criminal case, Dowling v. United States, --- U.S. ----, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990), or to support civil penalties such as forfeiture. United States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984); One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972). Sentencing judges may use all information they possess. "No limitation shall be placed on the information concerning the background, character, and conduct of a person ... for the purpose of imposing an appropriate sentence." 18 U.S.C. Sec. 3661. And the standard of proof at sentencing is a preponderance of the evidence, not "beyond a reasonable doubt". United States v. Ebbole, 917 F.2d 1495 (7th Cir.1990); United States v. White, 888 F.2d 490, 499 (7th Cir.1989). Cf. McMillan v. Pennsylvania, 477 U.S. 79, 91-92, 106 S.Ct. 2411, 2418-19, 91 L.Ed.2d 67 (1986). It follows that judges may consider prior misconduct despite the defendant's acquittal on charges arising out of that misconduct. Six courts of appeals have so held under the guidelines. United States v. Mocciola, 891 F.2d 13, 16-17 (1st Cir.1989); United States v. Rodriguez-Gonzalez, 899 F.2d 177, 180-81 (2d Cir.1990); United States v. Ryan, 866 F.2d 604, 608-09 (3d Cir.1989); United States v. Isom, 886 F.2d 736 (4th Cir.1989); United States v. Juarez-Ortega, 866 F.2d 747, 749 (5th Cir.1989); United States v. Dawn, 897 F.2d 1444, 1449-50 (8th Cir.1990). So this circuit held in pre-guideline cases. United States v. Haygood, 502 F.2d 166, 171 & n. 16 (7th Cir.1974) (Stevens, J.); United States v. Cardi, 519 F.2d 309, 314 n. 3 (7th Cir.1975); see also United States v. Ray, 683 F.2d 1116, 1120 (7th Cir.1982) (dictum). We conclude that these decisions are as sound today as they were before the guidelines.

Fonner depicts this as a forbidden punishment in the teeth of the earlier acquittal, but it is not. The judge's task in sentencing starts from an appreciation of the offense and offender. A defendant, convicted of making threats, who has killed before poses a problem in sentencing different from a milquetoast who utters threats out of frustration. To take account of the killing is not to "sentence" the defendant for a crime (murder) he did not commit, but to employ rational criteria to prescribe the sentence for the crime (mailing threatening communications) of which he stands convicted. Although Fonner believes that United States v. Perez, 858 F.2d 1272, 1277-78 (7th Cir.1988), and United States v. Plisek, 657 F.2d 920, 926-28 (7th Cir.1981), preclude reliance on the facts behind...

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