US v. Horton, 95-30027.

• Decision Date: 11 December 1995
• Docket Number: No. 95-30027.,95-30027.
• Citation: US v. Horton, 907 F. Supp. 295 (C.D. Ill. 1995)
• Parties: UNITED STATES of America, Plaintiff, v. Maurice HORTON, Defendant.
• Court: U.S. District Court — Central District of Illinois

907 F. Supp. 295

UNITED STATES of America, Plaintiff, v. Maurice HORTON, Defendant.

No. 95-30027.

United States District Court, C.D. Illinois, Springfield Division.

December 11, 1995.

Patrick J. Chesley, Joseph H. Hartzler, Gregory M. Gilmore, Asst. U.S. Attorneys, Springfield, IL, for plaintiff.

Jon Gray Noll, Springfield, IL, for defendant.

OPINION

RICHARD MILLS, District Judge:

I. BACKGROUND

Maurice Horton was a "copycat".

He made a false bomb threat to destroy the Paul Findley Federal Building in Springfield, Illinois, one day after a very real and very large bomb all but destroyed the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma.

At approximately 10:00 a.m., on April 20, 1995, Horton entered the Findley Federal Building, and because of tightened security, was asked to show identification. Horton became agitated as a result of the security measures. At approximately 12:30 p.m. a WICS Channel 20 reporter, who was filming a story on the increased security, saw Horton in front of the Findley Building. Fifteen minutes later, a Springfield city employee saw Horton on the first floor of the Springfield Municipal Building, which is across the street from the Findley Building.

At 1:00 p.m., Horton entered the Mayor's office of the City of Springfield and asked to see the Mayor. The Mayor's secretary told Horton that the Mayor was unavailable. Horton then told the Mayor's secretary that "there has been a bomb threat at the Federal Building and they closed the door." At 1:09 p.m. Horton placed a telephone call from a pay phone in the Municipal Building to the United States Marshal's office in the Findley Federal Building. Horton told the court security officer who answered the telephone that "one is going to go off in fifteen minutes." At 1:10 p.m. two Springfield city employees saw Horton at the pay telephone on the third floor of the Municipal building.

Predictably, the Findley Federal Building was evacuated, sealed, and searched. The building houses fourteen government agencies, including courts, law enforcement agencies, and social service agencies. As a result of the evacuation, the Findley Federal Building was closed for the remainder of the work day, resulting in the loss of over 400 work hours (the building houses approximately 123 employees). Federal, state, and local law enforcement agencies secured the building and searched it for the nonexistent explosive device. Additionally, members of the public wishing to do business with any of the fourteen agencies housed in the Findley Building were prohibited from doing so for the remainder of the day.

The Grand Jury indicted Horton on two counts. Count I charged Horton with willfully and maliciously conveying false information "knowing the same to be false, concerning an attempt and alleged attempt being made, and to be made, unlawfully to damage and destroy the Paul Findley Federal Building by means of explosive...." Count II charged Horton with making false statements to Special Agents of the Federal Bureau of Investigation during their investigation of the bomb threat.

Horton pleaded guilty to Count I, admitting that he violated 18 U.S.C. § 844(e), which carries a maximum penalty of 5 years imprisonment.

On November 13, 1995, this Court sentenced Horton on Count I to 40 months imprisonment, to be followed by 3 years of supervised release.¹ At the time of sentencing, the Government moved to dismiss Count II.

II. APPLICATION OF THE GUIDELINES

This case was difficult for the sentencing court. While the conduct in this case was very serious, the parties—both the defendant and the government—sought only minimal punishment. The Sentencing Guidelines also seem to recommend an unreasonably light sentence. But Defendant pleaded guilty to an offense carrying a maximum penalty of 5 years imprisonment and the Court is obliged to see that he receives just punishment.²

A. Guidelines Provisions

The starting point in sentencing is always the Sentencing Guidelines. Section 2A6.1 provides a base offense level of 12 for violations of 18 U.S.C. § 844(e). The Guidelines further provide that "if the offense involved any conduct evidencing an intent to carry out such threat, increase by 6 levels." U.S.S.G. § 2A6.1(b)(1). If, however, "specific offense characteristic § 2A6.1(b)(1) does not apply, and the offense involved a single instance evidencing little or no deliberation, decrease by 4 levels." Id. § 2A6.1(b)(2). To determine the proper final offense level, the Court must decide whether either of the two special criteria described in the Guidelines are present.

In the Presentence Investigation Report (PSR), the probation officer concluded that Horton's offense level should be 6. The probation officer reached this conclusion by granting a 4 level reduction because the parties' plea agreement stated that the offense evidenced little or no deliberation. The probation officer also granted Horton a 2 level reduction for acceptance of responsibility. U.S.S.G. § 3E1.1(a). Horton's Criminal History Score was within Category III. According to the PSR, the sentence range was 2 to 8 months.

B. Four Point Reduction for Little or No Deliberation

The Court reviewed the PSR and received a joint stipulation from the Government and Horton regarding the relevant facts. Based on the information provided, the Court concludes that the 4 level reduction pursuant to § 2A6.1(b)(2) is not appropriate in this case. Although this case involves only a single instance of threatening conduct, the Court finds that Horton's conduct evidenced more than "little or no deliberation." Therefore, Horton is not entitled to the 4 point reduction in offense level.

The plea agreement stated that the § 2A6.1(b)(2) reduction should be granted. But as the parties acknowledge, the Court is not bound by the terms of the plea agreement. See Fed.R.Crim.P. 11(e); U.S.S.G. § 6B1.1(b) (policy statement); United States v. Sanchez-Estrada, 62 F.3d 981, 987 (7th Cir.1995); see also United States v. Jimenez-Otero, 898 F.2d 813 (1st Cir.1990) (affirming district court decision to enhance offense level by 6 because the defendant engaged in conduct evidencing intent to carry out his threat, despite plea agreement stating that the 4 level reduction was appropriate). Additionally, paragraph 6 of the plea agreement states that "the Court will not be bound by any recommendation made by any party, and that the Court will be free to impose whatever sentence it deems appropriate up to the statutory maximum...."

Evidence of more than little or no deliberation is abundant. Horton's conduct took place over at least 39 minutes and may have lasted for over 2 hours. Horton's threat followed closely the tragic Oklahoma City bombing—which had occurred the day before —and clearly took advantage of the Federal Government's heightened fear of terrorist attacks. Horton's threat occurred in an environment of heightened security in which it was certain to be taken very seriously. The PSR reports that Horton has previously pleaded guilty to two counts of assault arising out of threatening conduct, making it clear that Horton knew the serious nature of his conduct. Horton knew what he was doing and did it intentionally and deliberately.

What little discussion of the 4 level reduction provided by § 2A6.1(b)(2) in other opinions indicates that even the smallest amount of deliberation deprives the defendant of the reduction. Recently the Ninth Circuit concluded that threats contained in two letters a defendant wrote on the spur of the moment, while intoxicated, were made with more than little or no deliberation. United States v. Sanders, 41 F.3d 480 (9th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 2010, 131 L.Ed.2d 1009 (1995). There, Sanders sent documents containing racial and ethnic slurs, death threats, and hateful caricatures to the local NAACP chapter and to a Jewish congregation. Id. at 482. The sentencing judge concluded that Sanders' conduct evidenced deliberation because:

the contents of the writings themselves demonstrate that some deliberation went into their preparation. Moreover, Sanders selected two distinct groups of victims, he selected them for their race and religion, and he tailored the contents of his letters to their race and religion. He then obtained the victims' addresses, attached proper postage, and deposited the two letters in two different mail drop boxes. These actions show a deliberate thought process rather than an impulsive action.

Id. at 485 (quoting Sentencing Memorandum at 7) (alterations in original). The Ninth Circuit concluded that the district court's conclusion was not clearly erroneous because, while Sanders' statements clearly did not demonstrate intelligent thought, they did show that he had put time and effort into the threats. Specifically, the court noted that the threats contained statements tailored to the victims that were "calculated to frighten and upset two particular groups of victims and to imply that they should take his threats seriously." Id. at 485.

In United States v. Fann, 41 F.3d 1218 (8th Cir.1994), the Eighth Circuit upheld a district court's refusal to grant the 4 level reduction under § 2A6.1(b)(2). The defendant had threatened the life of the President. The district court rested it decision not to reduce the offense level on the following facts: "Fann communicated his threat on more than one occasion to different people; he communicated the threats over the telephone, in writing, in statements to the Secret Service, and in statements to the press; and he added and subtracted detail as he issued his various statements." Id. at 1219. The Eighth Circuit found that this evidence was sufficient to sustain the district court's refusal to grant the 4 level reduction.

In United States v. Bellrichard, 801 F.Supp. 263 (D.Minn.1992), the defendant was convicted on five counts of mailing threatening communications in violation of 18 U.S.C. § 876....