U.S. v. Maxton

• Decision Date: 31 July 1991
• Docket Number: 90-5775,Nos. 89-5701,s. 89-5701
• Citation: 940 F.2d 103
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Theron Johnny MAXTON, Defendant-Appellant. (Two Cases)
• Court: U.S. Court of Appeals — Fourth Circuit

Page 103

940 F.2d 103

UNITED STATES of America, Plaintiff-Appellee, v. Theron Johnny MAXTON, Defendant-Appellant. (Two Cases)

Nos. 89-5701, 90-5775.

United States Court of Appeals Fourth Circuit.

Argued March 8, 1991.

Decided July 31, 1991.

Paul Victor Jorgenson, Middletown, Md., John Frank Hardaway, Columbia, S.C., argued, for defendant-appellant.

David Jarlath Slattery, Asst. U.S. Atty., argued (E. Bart Daniel, U.S. Atty., on brief), Columbia, S.C., for plaintiff-appellee.

Before RUSSELL, Circuit Judge, CHAPMAN, Senior Circuit Judge, and DUPREE, Senior District Judge for the Eastern District of North Carolina, sitting by designation.

OPINION

DONALD RUSSELL, Circuit Judge:

On August 8, 1989, Defendant Theron Johnny Maxton, an inmate in the South Carolina state correctional system, was convicted in the United States District Court for the District of South Carolina of violating 18 U.S.C. Sec. 876 by sending a letter to federal Magistrate Charles Gambrell threatening to kill him. After this trial, during which Gambrell testified, Maxton wrote another letter to the magistrate, again threatening his life. For sending this letter, on December 18, 1989, Maxton was convicted in district court of again violating 18 U.S.C. Sec. 876, as well as violating 18 U.S.C. Sec. 1513. At sentencing on the latter convictions, the Court departed upwardly from the suggested guideline range because of Defendant's "extreme recidivism" and his "egregious serious criminal record." Defendant now appeals both of his 18 U.S.C. Sec. 876 convictions, claiming that the statute is unconstitutionally overbroad in violation of the First Amendment. Finding no constitutional violation, we affirm Maxton's convictions. Defendant also appeals the district court's sua sponte upward departure on several grounds. Finding that the lower court did not give Defendant proper notice before such departure, we vacate Maxton's 6350 35 1 latter sentence and remand the case for resentencing.

I.

Defendant Maxton appears to be a career criminal with a very unsavory past. Shortly after his eighteenth birthday, Maxton was arrested several times, for disorderly conduct, assault and battery, trespassing, and attempted armed robbery and larceny. On this last charge, he was convicted and sentenced to three years imprisonment in a South Carolina penal institution, from which he was released on May 1, 1975. On the day of his release, Maxton held up a cab driver, whom he beat with his fist, threatened with an open knife to the throat, and forced to declothe. Maxton then committed buggery upon his victim, took from him his money, clothing, jewelry, and cab, and left him at the Spartanburg County Landfill clothed only in his hat and shoes. For these heinous acts, Maxton was convicted of armed robbery and buggery, and sentenced to ten years imprisonment. Following his release from prison this time, Maxton, within a forty-five day period, was arrested another four times, for petty larceny, drunk and disorderly conduct, assault and battery, and aggravated assault and battery. This last arrest was for stabbing a female with a butcher knife, and for this Defendant received another ten-year sentence--the sentence he is currently serving.

While in prison for this last offense, Maxton supposedly had several scuffles with prison officials. Because of these, he wrote to federal Magistrate Gambrell and South Carolina Governor Carroll Campbell to complain of his treatment. When this garnered no response, Maxton wrote two threatening letters to Governor Campbell. One stated in part, "I'll be the one to get you, no matter how long it takes me. If I don't get you, I will get Iris or Christie or whoever close to you." The other letter reminded the Governor, "I'll personally kill you when I get out of prison." Because of these letters, Maxton was charged with and convicted, in state court, of threatening the life of a public official, for which he received an additional seven years in prison.

This appeal concerns two letters Maxton has subsequently written Magistrate Gambrell. Gambrell is well acquainted with Defendant, for Maxton, while incarcerated, has filed at least ten or twelve habeas corpus petitions or civil rights cases in the United States District Court for the District of South Carolina; also, in connection with these cases, Maxton has written Gambrell twenty to twenty-five letters over a fifteen-year period.

On February 4, 1989, Defendant mailed Gambrell a letter which read:

I was beat seriously 2-10-89 while I was handcuff behind my back by those correctional officers. I had wrote you a few letter trying to get help to have something done about this with Warden Kenneth McKellar. And I even got 7 more years 12-2-88 about Gov. Campbell cause I threating him for not doing anything. And all the stitches I got under my eye and knots in my head, going to cost you and that bastard because I don't give a dam if I go to the chair. I will kill you and Carroll Campbell no good ass if I live to get out of here. Your son was lucky being shot, but you and Gov. Campbell won't be. You bastards will wish you had listen to me, that I'll promise, both you sons-of-bitches. I'll get both of you somehow one day and I is to.

For writing this letter Maxton was charged in a federal indictment with one count of violating 18 U.S.C. Sec. 876 (sending a threatening letter through the mail). A jury convicted Defendant of this charge, and the district court sentenced him to sixty months imprisonment, consecutive to the seventeen years he was then serving. Magistrate Gambrell testified at the trial, and later that same day Defendant wrote the official another letter:

You got your sorry ass on the stand today and Lied. And I dont give a dam what you said, I still have every intentions on killing you one day and thats a promise. You can call all the SCDC officials you wonna or run to the marshall or FBI all you wonna. and nothing going to stop me from killing you but my death or your.

Because of this letter, a two-count federal indictment was handed down charging Maxton with again violating 18 U.S.C. Sec. 876 as well as 18 U.S.C. Sec. 1513 (retaliating against a witness). Maxton was tried and convicted of these offenses, and at sentencing the Court sua sponte upwardly departed from the Sentencing Guidelines (which suggested a sentence from 100 to 125 months) by sentencing Maxton to the statutory maximum of 180 months. The Court used Defendant's extreme recidivism and his past criminal record to justify such departure.

Defendant now appeals his convictions for violating 18 U.S.C. Sec. 876, contending that the statute is unconstitutionally overbroad. Maxton also appeals the upward departure, arguing that the facts did not justify such departure, the sentencing court failed to identify its reasons for the degree of the departure, and the Court erred by making such departure without notice to Defendant, thus affording him no opportunity to respond.

II.

During the trials below, Defendant did not contest the constitutionality of 18 U.S.C. Sec. 876, and as Chief Judge John J. Parker noted in 1939, "The rule is well settled that only in exceptional cases will questions, of whatever nature, not raised and properly preserved for review in the trial court, be noticed on appeal." Hutchinson v. Fidelity Inv. Ass'n., 106 F.2d 431, 436 (4th Cir.1939). See also United States v. Chesapeake & Ohio Ry. Co., 215 F.2d 213, 216 (4th Cir.1954); United States v. One 1971 Mercedes Benz 2-Door Coupe, 542 F.2d 912, 915 (4th Cir.1976); and United States v. Mebane, 839 F.2d 230, 232 (4th Cir.1988). Fed.R.Crim.P. 52(b) provides that, "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Maxton now contends that it was plain error for the lower court not to sua sponte declare Section 876 to be...