U.S. v. Sanders

• Decision Date: 23 November 1994
• Docket Number: No. 93-10780,93-10780
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joshua William SANDERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 480

41 F.3d 480

UNITED STATES of America, Plaintiff-Appellee, v. Joshua William SANDERS, Defendant-Appellant.

No. 93-10780.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 13, 1994.

Decided Nov. 23, 1994.

Ann C. McClintock, Asst. Federal Public Defender, Sacramento, CA, for defendant-appellant.

Miguel Rodriguez, Asst. U.S. Atty., Sacramento, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before: GOODWIN, POOLE, and REINHARDT, Circuit Judges.

Opinion by Judge GOODWIN; Partial Dissent by Judge REINHARDT.

GOODWIN, Circuit Judge:

Joshua William Sanders appeals his conviction and sentence on two counts of mailing a threatening communication. 18 U.S.C. Sec. 876. He argues that the district court erred: (1) in concluding that his offense did not constitute a "single instance evidencing little or no deliberation," U.S.S.G. Sec. 2A6.1(b)(2); (2) in failing to notify him that it intended to reject the presentence report's recommendation on Sec. 2A6.1(b)(2); (3) in adding two points to his criminal history score for juvenile offenses; and (4) in inadequately informing him of the consequences of changing his plea. We affirm.

I.

In April, 1990, Sanders wrote two "letters" consisting almost entirely of racial epithets and derogatory language. He addressed the first of these letters to "N.I.G.G.E.R.S." and mailed it to the Fairfield chapter of the National Association for the Advancement of Colored People ("the NAACP"). On the envelope, Sanders wrote "Watch out this might be a letter b____," "die," "go back to Africa," and other derogatory remarks. In the letter itself, Sanders drew a caricature of an African-American person and wrote a variety of racial slurs.

Sanders addressed the second letter to "Jewish Pussy's" [sic] and mailed it to the B'Nai Avraham Jewish Congregation in Fairfield ("the Jewish Congregation"). He decorated the envelope and letter with various anti-Semitic drawings, threats, and offensive phrases.

Both letters bore the return address, "Fairfield W.A.R." (i.e. White Aryan Resistance), and a Fairfield post office box registered to Sanders. The handwriting matched Sanders'. After FBI agents confronted Sanders with the match, Sanders admitted sending both letters, explaining that he had written and mailed both letters early one morning while drunk.

Sanders was charged with two counts of mailing a threatening communication, a felony, 18 U.S.C. Sec. 876, and one count of interfering with housing rights, a misdemeanor, 42 U.S.C. Sec. 3631(a). The misdemeanor charge alleged that the NAACP office which received Sanders' first communication was also the chapter president's home.

Sanders initially pled guilty to Count I, mailing a threatening communication to the Jewish congregation, and Count III, interfering with housing rights. ¹ Based on this plea, the presentence report calculated a sentence range of ten to sixteen months and recommended a sentence of five months in custody, five months in community confinement, and three years of supervised release. However, the report also expressed an opinion that, had Sanders pled guilty to Counts I and II (the two felony mailing a threatening communication charges), rather than to Counts I and III, the applicable guidelines range would have been six to twelve months and Sanders would have been eligible for straight probation.

Sanders therefore moved to withdraw his guilty plea and substitute a new guilty plea to Counts I and II, the two felony counts of mailing a threatening communication. The government opposed this motion. However, the district court allowed Sanders to withdraw his plea, expressing concern about the misdemeanor's factual basis and noting that the government had not presented any evidence that Sanders knew that the NAACP office was a private residence. Sanders then pled guilty to the two felonies.

A revised presentence report calculated a guidelines range of six to twelve months and recommended that Sanders serve two months imprisonment, six months community confinement, and three years supervised release. The revised report also recommended that Sanders receive a four-level reduction in offense level because his offense "involv[ed] a single instance evidencing little or no deliberation." U.S.S.G. Sec. 2A6.1(b)(2). After full briefing and a hearing on the issue, however, the district court denied Sanders the four-level reduction, resulting in a guidelines range of fifteen to twenty-one months. The court sentenced Sanders to two concurrent fifteen-month prison terms followed by three years of supervised release.

II. Sec. 2A6.1(b)(2) REDUCTION FOR A SINGLE INSTANCE EVIDENCING LITTLE OR NO DELIBERATION

Sanders first challenges the district court's refusal to award him a four-level reduction under U.S.S.G. Sec. 2A6.1(b)(2). We review the district court's interpretation of the relevant guidelines de novo, accepting its underlying factual findings unless clearly erroneous. United States v. McAninch, 994 F.2d 1380, 1383 (9th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 394, 126 L.Ed.2d 342 (1993). United States v. Fine, 975 F.2d 596, 599 (9th Cir.1992) (en banc).

A. Single Instance

The district court found that Sanders' conduct did not constitute a "single instance" within the meaning of Sec. 2A6.1(b)(2) because "enough distinguishes [the letters'] preparation and mailing that they cannot be described as comprising one 'instance.' " Sentencing Memorandum at 5 (Dec. 2, 1993). In particular, the court noted that the letters were

addressed to two different groups of victims, they were sent to different locations, they were deposited in different mail boxes, the contents of each letter differed significantly, both were specifically tailored to the different racial or religious characteristics of the groups of intended victims, and each letter contained a different threat of violence.

Id. at 5-6.

Sanders argues that the district court misinterpreted the Guidelines, construing "single instance" as "single threat" rather than "single episode." He relies primarily on United States v. Pacione, 950 F.2d 1348, 1356 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 3054, 120 L.Ed.2d 920 (1992), in which the defendant twice threatened an IRS agent over the phone and then went to the IRS office an hour later and (according to a bystander) told his friend that he was going to blow up the IRS office. Id. at 1351. Sanders emphasizes that Pacione received the Sec. 2A6.1(b)(2) reduction, despite making multiple threats, and cites the case as an indication that "offense conduct that involves multiple illegal acts may still involve a 'single instance evidencing little or no deliberation' within the meaning of Sec. 2A6.1(b)(2)." Pet.R'hg at 9. According to Sanders, his conduct, like Pacione's, took place over a few short hours and thus constitutes a "single instance" of misconduct, even if it involved several threats.

While Pacione is the only published circuit opinion addressing a Sec. 2A6.1(b)(2) reduction, ² the case is hardly controlling. The Seventh Circuit did not address the validity of the Sec. 2A6.1(b)(2) reduction, merely mentioning the reduction in passing in discussing an unrelated issue. See Pacione, 950 F.2d at 1356. Thus, contrary to Sanders' arguments, the Seventh Circuit did not affirm Pacione's Sec. 2A6.1(b)(2) reduction or hold that Pacione's conduct constituted a "single instance evidencing little or no deliberation."

Nonetheless, we agree that "single instance" does not necessarily mean "single threat" and that conduct involving several threats may constitute a single instance or episode within the meaning of Sec. 2A6.1(b)(2). As Sanders argues, several related threats, depending on the circumstances, may comprise a single episode of threatening conduct.

However, the mere fact that Sanders' conduct took place within a short time span does not automatically mean that his offense comprises a "single instance." "Single instance" connotes not only a temporal relationship, but also a "single purpose" or "single scheme." Especially when considered together with the "little or no deliberation" requirement, the term suggests that the reduction should apply to defendants whose threats are the product of a single impulse, or are a single thoughtless response to a particular event.

Thus, the "single instance" reduction might not be required where a defendant made several unrelated threats, involving several different victims, even if these threats occurred within a relatively short period of time. The reduction might not apply, for example, where a defendant, within a few hours, but for unrelated reasons, threatened both his ex-wife and a business associate. Likewise, it might not apply where the defendant made a number of similar threats over an extended period of time, as in Bellrichard, 801 F.Supp. at 265.

In contrast, the reduction might apply in cases such as Pacione, where the defendant threatened a single victim several times within a very short period of time, reacting throughout the misconduct to a single stressful event--in Pacione's case, the IRS's decision to levy his wife's paycheck during her hospitalization for lung cancer. Pacione's threats were all a response to one particular traumatic situation and they were all made over a short period of time. ³

In contrast, Sanders' conduct, while it took place over a period of a few hours, has no such "single motive." He targeted two separate groups, based on two separate sets of prejudices, and two separate sets of motives. Although both letters express racial hatred, writing two letters to two different groups and tailoring each letter to the particular religious or racial characteristics of the group suggests less a "single instance" of aberrant conduct and more a chronic tendency to threaten persons because of their group membership. The district court did not clearly err in...