U.S. v. McAninch

• Decision Date: 20 May 1993
• Docket Number: No. 91-30433,91-30433
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald Bruce McANINCH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1380

994 F.2d 1380

UNITED STATES of America, Plaintiff-Appellee, v. Donald Bruce McANINCH, Defendant-Appellant.

No. 91-30433.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 18, 1992.

Decided May 20, 1993.

Kevin A. Peck, Seattle, WA, for defendant-appellant.

Angelo J. Calfo, Asst. U.S. Atty., Seattle, WA, for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before: WRIGHT, FLETCHER, and CANBY, Circuit Judges.

FLETCHER, Circuit Judge:

Donald McAninch, who pleaded guilty to mail fraud and mailing threatening communications, appeals the sentence imposed by the district court. We affirm.

FACTS AND PROCEDURAL HISTORY

From April of 1990 through March of 1991, McAninch waged a campaign of harassment and intimidation against several individuals in Oregon and Washington whom he did not know but believed to be interracially married. Following an investigation by the Secret Service, McAninch was arrested and indicted for these activities.

The indictment alleged that McAninch ordered scores of magazine subscriptions to be sent to the homes of the eight individuals he targeted, as well as books and other merchandise, for which they were billed; that he submitted false change of address cards to the post office in the individuals' names, causing their mail to be forwarded to other locations; that he called utilities and requested to have power shut off in their homes; and that he sent threatening communications, including a magazine article describing the violent death of Mulugeta Seraw, a black Ethiopian youth who was killed by skinheads in Portland, an oath pledging allegiance to the Ku Klux Klan, and a photograph of a confederate statue with a swastika drawn on it. In addition, it was alleged that McAninch mailed two letters to the White House threatening to kill President Bush, signing the names of two of the men he had chosen to harass.

Pursuant to a plea agreement, McAninch pleaded guilty to three counts of the ten-count indictment: count three, which alleged mail fraud in connection with a false change of address form McAninch filled out in the name of Walter Naylor, in violation of 18 U.S.C. §§ 1341, 1346, 3237, and 2; count nine, which alleged the mailing of a threatening communication to Brian Williams, in violation of 18 U.S.C. § 876, 3237, and 2; and count ten, which alleged that McAninch sent a letter threatening the President to which he had signed the name of Ramsey Al-Salam, in violation of 18 U.S.C. §§ 871, 3237, and 2. In keeping with the plea agreement, the remaining counts were dismissed at sentencing.

The probation officer premised the presentence report on his determination that the mail fraud count was controlled by guidelines section 2F1.1 (Fraud and Deceit) and that the two other counts fell under section 2A6.1 (Threatening Communications). Applying these guidelines, the probation officer calculated McAninch's offense level to be 13, ¹ with a criminal history category of II. At the sentencing hearing, the district court departed upward to an offense level of 16 on the basis of three factors: the President had been a victim of the threatening communication in count ten; the harassment had resulted in extreme psychological injury to McAninch's victims; and McAninch's actions had On appeal, McAninch contends that the district court improperly relied on conduct alleged in the dismissed counts in sentencing him and that the three-point upward departure was unwarranted.

                been racially motivated. 2  The court sentenced McAninch at the top of the applicable range to 30 months imprisonment.   In addition, the court ordered McAninch to pay restitution in the amount of $250.91 to the victim of count eight and imposed a special assessment of $150
                

DISCUSSION

A. Improper Reliance on Dismissed Counts

In addition to describing the offenses to which McAninch had pleaded guilty, the presentence report contained information about the victims of the counts that were to be dismissed pursuant to the plea agreement. At the sentencing hearing, the court characterized McAninch's conduct as "over a year's worth of repeated bombardment," although the specific counts to which McAninch had pleaded referred only to acts committed between September 1990 and January 1991. (Sentencing Transcript ("S.T.") at 41.) The judge permitted a victim of one of the dismissed counts, Luma Nichol, to address the court concerning the racist nature of McAninch's actions. As part of McAninch's sentence, Nichol was awarded $250.91 in restitution, representing the amount she had spent to cancel magazine subscriptions and undo other effects of the harassment against her.

McAninch contends that the district court's consideration of conduct that was the subject of dismissed counts entitles him to a remand. We review the district court's interpretation of the Sentencing Guidelines de novo, United States v. McInnis, 976 F.2d 1226, 1233 (9th Cir.1992), and the court's factual findings in connection with sentencing for clear error, United States v. Chapnick, 963 F.2d 224, 226 (9th Cir.1992).

This circuit recently addressed the issue whether dismissed counts can be taken into consideration by the sentencing judge. United States v. Fine, 975 F.2d 596 (9th Cir.1992) (en banc). In Fine, the defendant pleaded guilty to two counts of a multicount mail fraud scheme and challenged his sentence because it was based on losses that were part of the same scheme but alleged in dismissed counts. We held that the court could consider dismissed counts in establishing the loss caused by Fine's fraud because under the guidelines they were groupable with the count of conviction and therefore constituted relevant conduct pursuant to section 1B1.3(a)(2). Id. at 599-600; see also United States v. Von Mitchell, 984 F.2d 338, 339-40 (9th Cir.1993) (per curiam) (applying Fine). In Fine, however, we distinguished and reaffirmed our previous holding in United States v. Castro-Cervantes, 927 F.2d 1079 (9th Cir.1990), that a court may not depart upward from the guidelines sentence on the basis of dismissed charges. Fine, 975 F.2d at 602; Von Mitchell, 984 F.2d at 339.

Offenses to which guideline 2F1.1 applies, which include the mail fraud charged in count three, are groupable offenses. See U.S.S.G. § 3D1.2(d) (1991); Fine, 975 F.2d at 599. The two threatening communications counts to which McAninch pleaded, and to which section 2A6.1 applied, however, are specifically excluded from the grouping provisions of the guidelines. See U.S.S.G. § 3D1.2(d) (1991). Under Fine, then, the district court was entitled to look at the entire fraud scheme, including the dismissed mail fraud counts, to establish the offense level for count three, but had to treat the threatening communications counts as independent offenses.

The injuries inflicted by McAninch were more psychic than financial. Under the logic of the Sentencing Guidelines, this meant that McAninch received the lowest possible base offense level rating for the mail fraud to which he pleaded guilty in count three, level 6. See U.S.S.G. § 2F1.1(b)(1)(A) (1991) (offenses resulting in losses of $2,000 or less). The court adopted the recommendation of the presentence report to increase the offense level by two pursuant to section 2F1.1(b)(2)(A) because the fraud involved more than minimal planning, resulting in an offense level of eight for count three. ³

There is nothing in the presentence report upon which the district judge relied that indicates that the calculation of the offense level for count three related to any of the dismissed charges. In recommending level eight (and considering but rejecting a vulnerable victim adjustment), the probation officer, in his report, mentioned only the victim of that count, the wife of the deceased man whose mail McAninch had fraudulently forwarded. Similarly, there is nothing in the record that shows that the court was relying on dismissed counts in adopting the level 12 as the base offense level for counts nine and ten. Twelve is the minimum under section 2A6.1.

McAninch's primary concern appears to be that the court considered the experiences of Nichol before imposing the sentence. ⁴ Count eight, the only count specifically concerning Nichol, charged McAninch with mail fraud in connection with a magazine he ordered in Nichol's name. Even if the court had looked to conduct directed against Nichol and other aspects of McAninch's overall fraudulent scheme in setting the offense level for count three, it would have been entitled to do so, because the fraud counts were groupable. ⁵

B. Upward Departure

McAninch makes specific objections to each of the court's three bases for departing upward. We review the district court's decision to depart under the tripartite test established in United States v. Lira-Barraza, 941 F.2d 745, 746-47 (9th Cir.1991) (en banc). First, we consider whether the district court had legal authority to depart, that is, whether there existed " 'an aggravating ... circumstance of a kind, or to a degree, not adequately taken into consideration' " by the guidelines. Id. at 746 (quoting 18 U.S.C. § 3553(b)). This first consideration is an issue of law we review de novo. Id. Next, we review for clear error the district court's factual findings in support of the departure. Id. We must then determine whether the degree of departure was "unreasonable" in light of the standards and policies incorporated in the Sentencing Reform Act and the Sentencing Guidelines. Id. at 747, 751. Because the court departed upward a total of three levels on the basis of all three grounds for departure without allocation among them, we consider the validity of each ground before reaching the reasonableness of the departure. Finally, as part of our analysis, we must also consider whether the court improperly relied on dismissed charges in arriving at any of its findings of fact in support of the...