United States v. Stoker

• Decision Date: 31 January 2013
• Docket Number: No. 11–60754.,11–60754.
• Citation: 706 F.3d 643
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Wayne Allen STOKER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

706 F.3d 643

UNITED STATES of America, Plaintiff–Appellee,

v.Wayne Allen STOKER, Defendant–Appellant.

No. 11–60754.

United States Court of Appeals,Fifth Circuit.

Jan. 31, 2013.

Clayton Adair Dabbs, U.S. Attorney's Office, Oxford, MS, for United States of America, Plaintiff–Appellee.

LeRoy Davis Percy, Percy Law Firm, P.L.L.C., Oxford, MS, for Wayne Allen Stoker, Defendant–Appellant.

Appeal from the United States District Court for the Northern District of Mississippi.

Before JONES, GARZA, and PRADO, Circuit Judges.

PER CURIAM:

Wayne Allen Stoker (“Stoker”) appeals his conviction and sentence on two counts of retaliating against and threatening a witness, in violation of 18 U.S.C. §§ 1513(e) and 876(c). Finding the evidence sufficient to support the verdict, but only one count to be a crime of violence under current law, we affirm the conviction and vacate and remand for resentencing.

BACKGROUND

On February 20, 2009, Stoker caused a disturbance in, and was removed from, the Dam Bar in Grenada County, Mississippi. He returned after closing that night and burned it down. Following the incident, he became acquainted with a woman named Donna Moore (“Moore”) and sometime thereafter confessed the arson to her. Upon hearing the details of Stoker's act, Moore became fearful and called an anonymous hotline to report the incident. An FBI agent eventually convinced her to testify, and the Report of Investigation (“ROI”) outlining her story aided in precipitating a guilty plea from Stoker. The ROI detailed Stoker's actions and also reported the extreme fear Moore felt in coming forward with the information. One day after he was sentenced to nine years in prison for the arson, Stoker mailed Moore a copy of the ROI from prison. Moore took this to be a threat and suffered serious emotional distress as a result.

Stoker was subsequently convicted by a jury of violating 18 U.S.C. § 1513(e)—retaliation against a witness providing truthful information to a law enforcement officer—and § 876(c)—mailing a threatening communication. The presentence investigation report (“PSR”) prepared by the probation officer disclosed a previous arson conviction in addition to the one for the bar incident. The PSR added both arson convictions to the two counts of conviction in the present case to conclude that Stoker qualified for the career-offender enhancement under U.S.S.G. § 4B1.1. The district court agreed, treating all four convictions as crimes of violence. U.S.S.G. § 4B1.2. The resulting offense level of twenty-four, combined with a criminal history category of VI, yielded a guideline imprisonment range of 100 to 125 months. The court issued a sentence of 108 months, to be served consecutive to the Dam Bar arson conviction. Stoker timely appealed.

DISCUSSION

Stoker attacks the sufficiency of the evidence supporting his convictions and the career-offender enhancement to his sentence range. “[D]etermining the weight and credibility of the evidence is solely within the province of the jury.” United States v. Salazar, 542 F.3d 139, 144 (5th Cir.2008). This court “view[s] the evidence in the light most favorable to the verdict and draw[s] all reasonable inferences from the evidence to support the verdict.” United States v. Percel, 553 F.3d 903, 910 (5th Cir.2008) (quoting United States v. McDowell, 498 F.3d 308, 312 (5th Cir.2007)). A jury verdict will be upheld if a rational trier of fact could conclude from the evidence, viewed in the light most favorable to the verdict, that the elements of the offense were established beyond a reasonable doubt. Id.

Sentencing Guidelines calculations are reviewed for clear error but the legal interpretation and application of the Guidelines are reviewed de novo. United States v. Smith, 440 F.3d 704, 706 (5th Cir.2006). As a result, “characterizing an offense as a crime of violence is a purely legal determination” that is also reviewed de novo. United States v. Guevara, 408 F.3d 252, 261 n. 10 (5th Cir.2005).

I. Sufficiency of the Evidence.

Stoker, contending he lacked the requisite intent to retaliate against or threaten Moore, argues that the evidence was insufficient to convict him of either count.

A violation of § 1513(e) requires proof that (1) Stoker knowingly took an action with intent to retaliate; (2) Stoker harmed Moore; and (3) his retaliation was spawned by her assistance to law enforcement.¹ Stoker challenges the evidence only on the first element, although he characterizes Moore's reaction to his letter as extreme. He “merely” intended, as he explained in a letter to the U.S. Attorney, to signify his unhappiness with Moore's “betrayal” but never intended to harm her.

“Intent may, and generally must, be proven circumstantially. Generally, the natural probable consequences of an act may satisfactorily evidence the state of mind accompanying the act, even when a particular mental attitude is a crucial element of the offense.” United States v. Maggitt, 784 F.2d 590, 593 (5th Cir.1986). In Maggitt, one of the defendants was convicted of a § 1513 violation for telling a witness she was aware of his testimony against her brother and that she was going to kill him for it. The defendant later argued the threat was not serious and that she was just mad at someone who had been a friend and neighbor for years. This court noted that, given those circumstances, “the jury could have concluded that [she] was just ‘blowing off steam.’ ” Id. at 594. Nevertheless, when the evidence was viewed in a light most favorable to the prosecution, it had to be acknowledged that “[t]he jury could also have found beyond a reasonable doubt that [the defendant]'s threat was intended in retaliation against [the witness] for his earlier testimony before the grand jury.” Id.

Here, as in Maggitt, the jury was within its bounds to find retaliatory intent on the part of Stoker. While a reasonable person could view such a letter—mailed from prison, by an arsonist (who committed arson as retaliation for being thrown out of a bar), detailing the witness's fear of retaliation—as an ominous sign, the jury might have accepted Stoker's rationale that he was only expressing displeasure toward Moore. Viewing the evidence in a light most favorable to the government, however, the evidence is sufficient to support what the jury concluded beyond a reasonable doubt: mailing the letter was illegal retaliation against Moore. As Maggitt teaches, a jury is free to infer the intent to retaliate from the natural consequences likely to flow from the defendant's actions. The jury here could at least infer Stoker's intent to seriously frighten the witness; fear was a natural probable consequence when she received the investigation report from him.

Likewise, the jury was free to infer that Stoker knew he was mailing a threat to injure Moore when he sent her the report that relayed her fears of what he might do if she testified. A violation of 18 U.S.C. § 876(c) requires proof of the mailing of a communication containing “any threat to injure” the addressee.² The jury had to decide whether the communication was intended as a threat. This determination follows a similar analysis to that for intent to retaliate: the natural consequences of an action may be inferred to evidence an intent to cause the reaction ( e.g., eliciting fear by mailing a letter that hypothesizes possible retaliation by an arsonist). Moore reasonably construed the communication as a personal threat. Additionally, the subjective intent to injure Moore is irrelevant; and it is of no consequence that Stoker neither planned to nor was able to carry out the threat. See United States v. DeShazo, 565 F.2d 893, 894–95 (5th Cir.1978)(per curiam). The evidence is thus sufficient to support both counts of the conviction.³

II. Crime–of–Violence Enhancement

Because of the significant impact on his sentence, Stoker seeks a reversal of the district court's career offender designation under U.S.S.G. § 4B1.1. This section enhances the sentence if (a) either of the instant offenses of conviction is a “crime of violence” and, undisputed here, Stoker (b) is over eighteen years of age and (c) has two prior felony convictions (satisfied here by the two convictions for arson, an enumerated crime of violence). According to Stoker, his Sentencing Guidelines range is altered from 100–125 months to 2–33 months if neither conviction qualifies for the career offender enhancements.

Stoker asks us to consider whether either of his instant convictions for violating 18 U.S.C. §§ 1513(e) and 876(c) is a crime of violence, which is defined as:

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a) (emphases added). A crime of violence under § 4B1.2 must therefore (1) contain as an element the “use, attempted use, or threatened use of physical force” against the person of another (the “element clause”); or (2) fall within the list of enumerated offenses; or (3) otherwise involve conduct that presents a serious potential risk of physical injury to another (the “residual clause”). The offenses of conviction here are not enumerated within § 4B1.2(a) or its Commentary. Stoker argues that neither offense satisfies the element clause or the residual clause.

A. § 4B1.2(a)(1)—The Element Clause

The element clause of § 4B1.2(a) is more easily addressed. According to Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 2159, 109 L.Ed.2d 607 (1990), we are obliged to analyze the elements of the statute of conviction, in the usual case, rather than the facts of the specific offense. This court applies Taylor 's “categorical approach” to interpretations of...