U.S. v. Horton

• Decision Date: 21 October 1996
• Docket Number: No. 95-3708,95-3708
• Citation: U.S. v. Horton, 98 F.3d 313 (7th Cir. 1996)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Maurice HORTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 313

98 F.3d 313

UNITED STATES of America, Plaintiff-Appellee, v.Maurice HORTON, Defendant-Appellant.

No. 95-3708.

United States Court of Appeals Seventh Circuit.

Argued April 8, 1996.

Decided Oct. 21, 1996.

Gregory M. Gilmore(argued), Office of the United States Attorney, Springfield, IL, for Plaintiff-Appellee.

Jon G. Noll, Jeffrey T. Page(argued), Springfield, IL, for Defendant-Appellant.

Before POSNER, Chief Judge, and ROVNER and EVANS, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Maurice Horton pleaded guilty to making a bomb threat against a federal building in violation of 18 U.S.C. § 844(e).Horton made the threat only one day after a bomb had destroyed the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma.Relying heavily on that fact, the district court determined that Horton's was an unusual case warranting an upward departure of eight levels from the base offense level that otherwise would have been applicable to Horton's offense under the Sentencing Guidelines.The court also determined that a four-level reduction in base offense level for conduct demonstrating little or no deliberation pursuant to U.S.S.G. § 2A6.1(b)(2) was not appropriate under the facts of this case.The district court then sentenced Horton to 40 months in prison and three years of supervised release.United States v. Horton, 907 F.Supp. 295(C.D.Ill.1995).The issues Horton has preserved on appeal include several challenges to his sentence, primarily directed at the extent of the upward departure assigned by the district judge under U.S.S.G. § 5K2.7, and the judge's denial of the four-level reduction for lack of appreciable deliberation.We agree with Horton that the eight-level upward departure was unreasonable in extent, and therefore vacate Horton's sentence and remand for resentencing.On remand, we leave open the question whether Horton's threat was the product of "little or no deliberation" within the meaning of U.S.S.G. § 2A6.1(b)(2).

I.BACKGROUND

On the morning of April 20, 1995, one day after a bomb destroyed the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, killing 169 people, injuring many others, and causing extensive damage to several nearby buildings, Maurice Horton tried to enter the first floor of the Paul Findley Federal Building (Federal Building) in Springfield, Illinois.On that day, the Federal Building was under heightened security, and all persons seeking to enter it were required to present proper identification.Upon being asked by the security guard to identify himself, Horton became agitated.Although the record does not reflect what happened next, it seems likely that Horton was denied entry.Several hours later, at approximately 12:30 p.m., a local television newswoman who was reporting on the increased security measures noticed Horton loitering in the immediate vicinity of the Federal Building.From 12:30 p.m. until about 12:45 p.m., Horton spoke with a man named Larry Davis, who was also standing nearby.During that conversation, Horton gave no indication that he might be thinking about making a bomb threat.A short time thereafter, at about 1:00 p.m., Horton entered the Springfield Municipal Building, which is located directly across the street from the Federal Building.Horton went to the office of the Mayor of Springfield and asked the Mayor's secretary, Kimberly McGee, whether he could speak with the Mayor.When McGee told Horton that the Mayor was not available, Horton replied, "Tell the Mayor that there has been a bomb threat at the Federal Building and they closed the door."Horton then added, "I hate you," as he left the office.

Several minutes later, at 1:09 p.m., Court Security Officer Darrell W. Martin received a bomb threat, communicated by telephone to the office of the United States Marshall's Service.The caller stated that an explosive device had been placed in the Federal Building and that it would "go off in fifteen minutes."Telephone company records show that the call originated from a public telephone located on the third floor of the Springfield Municipal Building.A witness observed Horton standing next to the telephone and looking through the telephone book at about the same time that the threat was received.Horton's fingerprints were later recovered from the page of the telephone book that contained the number of the United States Marshall's Service.The bomb threat resulted in the immediate evacuation of the Federal Building, and was followed by an exhaustive search for the device.The search was conducted by officers from several federal, state and local law enforcement agencies and lasted for the remainder of the day.A total of 123 federal employees and many members of the public were required to leave the Federal Building, and fourteen federal agencies remained closed until the following morning.No explosive device was found.

While the search was taking place, Horton voluntarily spoke to several FBI agents interviewing members of the public who had been in the vicinity of the Federal Building at the time of the threat.Horton stated that he had used the public telephone on the third floor of the Springfield Municipal Building just before noon, but emphatically denied using the telephone after that time.Horton also made several rather unusual remarks to the agents, acknowledging that he knew he was considered "public enemy number one" in Springfield, and that he expected to be treated as a suspect in the case.Yet Horton continued to insist that he was not involved in making the bomb threat.At approximately 4:30 p.m. of the same afternoon, Horton was arrested for making the threat.

On May 4, 1995, a federal grand jury returned a two-count indictment against Horton, charging him with making a bomb threat against the Federal Building in violation of 18 U.S.C. § 844(e)(Count 1), and making a false statement to a federal officer in violation of 18 U.S.C. § 1001(Count 2).Horton initially pleaded not guilty and requested that the district judge presiding over this case recuse himself on the grounds that he had been a victim of the bomb threat and thus was not, and could not reasonably be expected to be, unbiased.28 U.S.C. §§ 144,455(a).The district court denied Horton's request.Horton then entered into a written plea agreement with the government pursuant to Rule 11(e)(1)(A), agreeing to plead guilty to Count 1, making the bomb threat.The government, in turn, agreed to dismiss Count 2 of the indictment.Although the plea agreement advised Horton that he faced a statutory maximum sentence of five years, the government nevertheless recommended a four-level reduction in base offense level for minimal deliberation (U.S.S.G. § 2A6.1(b)(2)) and a two-level reduction for acceptance of responsibility (U.S.S.G. § 3E1.1(a)).The government also suggested that Horton's conduct did not warrant an increase in base offense level for obstruction of justice (U.S.S.G. § 3C1.1), but that the district court should consider an upward departure from the resulting base offense level because Horton's threat had resulted in "a significant disruption of a governmental function,"U.S.S.G. § 5K2.7.The government further recommended that the upward departure be limited to three levels.Horton understood, of course, that the district court would not be bound by any of the government's sentencing recommendations.

The district judge accepted Horton's guilty plea and ordered the preparation of a presentence report.As part of the report, the judge ordered several mental health agencies that had treated Horton in the past to turn over their records of Horton's diagnosis and treatment.At sentencing, the judge rejected the recommendations of both the government and the Probation Department concerning the appropriate base offense level to assign to Horton under the Sentencing Guidelines.The judge began with an offense level of 12 as provided by U.S.S.G. § 2A6.1, then deducted two levels for acceptance of responsibility.The judge refused, however, to apply the recommended four-level reduction for minimal deliberation.The judge reasoned that, rather than engaging in a spur-of-the-moment prank, Horton had had time to reflect on his course of action before making the threat, and had decided to exploit the government's "heightened fear of terrorist attacks" for maximum impact.907 F.Supp. at 298.The district judge further determined that an upward departure of eight levels would be appropriate given the grave nature and the unfortunate timing of Horton's bomb threat.Id. at 300-01.The court thus calculated Horton's sentence on the basis of an offense level of 18 rather than 10.Because Horton's criminal history (which included an assault conviction for threatening a Springfield alderman in 1991) placed him in category III, this calculation yielded a sentencing range of 33 to 41 months, as compared with a range of 10 to 16 months absent any upward departure.The judge then sentenced Horton to 40 months in prison and three years of supervised release, and imposed special conditions of supervision in light of Horton's psychiatric history.

II.DISCUSSION

Horton first challenges the district judge's denial of his request that the judge recuse himself, which Horton originally brought on the grounds that Judge Mills, whose court is located in the Federal Building, was a victim of the bomb threat and is therefore biased against him (28 U.S.C. § 144), and that in any case, a reasonable person would be led to question the judge's impartiality in light of these facts(28 U.S.C. § 455(a)).On appeal, however, Horton has abandoned his claim that Judge Mills was actually biased against him, and has confined his argument to the issue of whether a reasonable person would doubt the judge's ability to maintain an impartial view of this case.In other words, Horton has focused entirely on whether the judge should have recused himself under section...