Court: Court of Appeals for the Eleventh Circuit; July 23, 1996; Federal Appellate Court
David S. Taylor appeals his 1991 conviction for sending threatening communications via mail, violating 18 U.S.C. § 876. The appeal, heard by the Eleventh Circuit, addresses two main issues regarding his conviction and several sentencing issues, including enhancements under the United States Sentencing Guidelines. Taylor was convicted on two counts related to threats made in greeting cards sent to his former girlfriend, Kathleen Goldstein, and her family, indicating intentions of harm.
Initially indicted in 1990, Taylor's conviction was reinstated after the appellate court reversed a district court's acquittal. On remand, the district court sentenced him to a total of 97 months in prison, with a special condition of three years of supervised release and no contact with the victims. The sentencing enhancements included adjustments for evidencing intent to carry out the threats, obstruction of justice, and an upward departure from the guidelines. The court emphasized that sentencing guidelines require identifying the base offense level and adjusting it based on criminal history, with the possibility of deviating from the guideline range if the case is deemed atypical.
Taylor was sentenced by the district court under U.S.S.G. 2A6.1(a) with a base offense level of 12, which was increased by six levels due to evidence indicating an intent to carry out threats (U.S.S.G. 2A6.1(b)(1)). Additionally, a two-level enhancement was imposed for obstruction of justice because Taylor failed to provide handwriting samples and attempted to disguise his writing when he finally complied. This brought his adjusted offense level to 20, with a criminal history category of III, resulting in a standard sentencing range of 41 to 51 months. However, the court departed upward by eight levels, setting a new sentencing range of 97 to 121 months, and ultimately sentenced Taylor to 97 months.
Taylor contested the sentence on three grounds: (1) the six-level enhancement for intent to carry out threats was improperly applied; (2) the two-level enhancement for obstruction of justice was erroneous; and (3) the eight-level upward departure was unjustified due to aggravating factors. The court reviews the factual findings for clear error, applies due deference to the application of guidelines, and uses a de novo standard for enhancements related to specific offense characteristics and obstruction of justice. Taylor's argument referenced a Second Circuit ruling that only post-threat conduct should be considered for enhancements, which was rejected by the Eleventh Circuit in favor of allowing pre-threat conduct to be evaluated, aligning with the Fourth, Seventh, and Ninth Circuits.
The offense characteristic under discussion differentiates cases based on the defendant's intent and the likelihood of carrying out a threat. It asserts that if a defendant's actions indicate a clear intention to act on a threat, the timing of those actions (before or after the threat) should not alter the level of punishment. A precedent case, Barbour, established that for pre-threat conduct to be relevant, it must be directly linked to the threat itself. Three factors were identified to evaluate the relevance of such conduct: (1) the time proximity between the threat and prior actions, (2) the seriousness of those actions, and (3) the progression towards executing the threat. However, these factors are not exhaustive or mandatory.
In the case of Taylor, the evidence demonstrated a direct connection between his pre-threat actions and the threats made against the Goldsteins. Taylor persistently located the Goldsteins despite their efforts to evade him, engaged in surveillance, and detailed their activities in letters, indicating firsthand observation. His former wife reported to the FBI that Taylor had made numerous calls, traveled to Florida armed, and had solicited a cellmate to commit murder against the Goldsteins. The court found that all pre-threat conduct was serious and specifically linked to the victims, justifying a six-level sentencing enhancement for conduct showing intent to fulfill the threat. Thus, the district court's enhancement decision was deemed appropriate.
Taylor was served with a grand jury subpoena on June 22, 1990, requiring him to provide handwriting exemplars, which he initially refused. After consulting with an attorney, he began to comply but ultimately withdrew and did not submit the completed exemplars. A magistrate judge ordered him to provide handwriting samples on December 6, 1990, but he continued to refuse until February 12, 1991, when he complied. However, the samples were unhelpful because he attempted to disguise his handwriting.
The obstruction of justice enhancement under U.S.S.G. § 3C1.1 applies if a defendant willfully obstructs or impedes justice. Taylor contended he did not obstruct justice since he admitted writing cards to the Goldsteins, but he did not specifically admit to writing the cards in question for the indictment. Consequently, the government needed to authenticate the threatening cards by matching Taylor's handwriting, which it could not do with the exemplars provided.
Taylor's repeated refusals and efforts to disguise his handwriting constituted an attempt to impede prosecution. Case law supports that such actions warrant an obstruction enhancement, as mere attempts to obstruct justice qualify for such an increase. Despite the government eventually finding an alternative way to prove its case, Taylor's actions significantly hindered the investigation, justifying the district court's two-level obstruction of justice enhancement to his offense level.
Taylor argues that the district court improperly applied an obstruction of justice enhancement without following the procedural requirements set forth in *United States v. Alpert*, which mandates that the court must specify the defendant's actions, the justification for the enhancement, and how those actions obstructed the investigation or prosecution. While the government agrees on the necessity of these requirements, it contends that the record sufficiently supports the enhancement. The court concurs, stating that although the district court lacked individualized findings regarding the enhancement, the existing record substantiates it, negating the need for a remand.
Further, the district court imposed an eight-level upward departure from Taylor's offense level based on factors not sufficiently considered by the Sentencing Commission. According to 18 U.S.C.A. 3553(b) and U.S.S.G. 5K2.0, such departures are permissible if aggravating or mitigating circumstances warrant a different sentence. The Sentencing Commission has not restricted the types of factors that may justify a departure, except for a few expressly prohibited ones.
The recent Supreme Court decision in *Koon v. United States* clarified the standard of review for appellate courts regarding sentencing departures, establishing an abuse of discretion standard, as opposed to the previously applied partial de novo standard. This indicates that appellate courts should evaluate whether the district court's decision to depart from the guidelines was within a reasonable exercise of discretion.
Whether a factor is a permissible basis for departure in sentencing is a legal question that the court of appeals reviews independently, without deference to the district court's conclusions. An abuse of discretion occurs if the district court makes an error of law. The review process does not require distinguishing between de novo and abuse of discretion; both involve ensuring the discretion was not based on incorrect legal principles.
According to the Koon decision, the analysis for determining if a departure from sentencing guidelines is warranted involves several steps: assessing whether the case presents unique characteristics outside the Guidelines' "heartland," evaluating whether the Commission prohibits, encourages, or discourages departures based on those characteristics, and considering unmentioned factors in the Guidelines against the overall structure and theory of the guidelines. Departures based on unmentioned factors should be rare.
In this case, Taylor argued that the district court's method for determining the appropriateness and amount of upward departure was flawed. He contended that the court should have better articulated its reasoning and engaged in a discussion about the sufficiency of the departure levels. The district court, however, justified its eight-level upward departure after reviewing the Presentence Report (PSR), hearing from counsel, victims, and the defendant. It identified factors that warranted the departure, including a prolonged pattern of harassment over twenty years, the humiliating nature of the defendant's actions, and the persistence of harassment despite judicial orders to cease. The commentary to the relevant guideline allows for consideration of factors not explicitly included in the guidelines, supporting the court's decision to depart upward.
The Sentencing Commission has not excluded the factors utilized by the district court for an upward departure in sentencing. Two significant factors are that the harassing conduct spanned twenty years and caused public embarrassment to the victims, which align with U.S.S.G. 5K2.8. This guideline allows for sentence increases if the defendant’s actions are deemed unusually heinous or degrading. Taylor admitted to sending approximately one thousand harassing communications to the Goldsteins over two decades, averaging one per week. His actions included sending letters to Kathleen Goldstein's employer, hiring a stripper at Mr. Goldstein's workplace, and offering neighbors money for compromising photos of the Goldsteins. The persistent and humiliating nature of Taylor's conduct justifies the district court's decision for an upward departure from standard sentencing guidelines.
Moreover, the court considered Taylor's repeated violations of federal and state court orders prohibiting contact with the Goldsteins, although this factor is not explicitly encouraged or discouraged by the guidelines. While departures based on unmentioned factors are rare, this case aligns with the overall structure and theory of the guidelines. Taylor had a history of legal issues, including a 1984 conviction for conspiracy and mail fraud that included a probation condition barring him from contacting the Goldsteins. He violated this condition multiple times, leading to several revocations of probation and subsequent incarcerations.
Taylor violated a federal district court's order prohibiting communication with the Goldsteins four times, and a restraining order from the Broward County Circuit Court, leading to a warrant for his arrest. His repeated disregard for both federal and state court orders was deemed an aggravating factor, distinguishing his case from typical ones considered by the Sentencing Commission, justifying the district court's reliance on this factor without abusing its discretion.
The court rejected Taylor's argument that it should have examined each departure level leading to the eight-level increase imposed. It clarified the distinction between horizontal (based on criminal history category) and vertical (based on offense level) upward departures. While horizontal departures require the court to discuss each category passed over, vertical departures do not necessitate such detailed analysis. The court emphasized that once the highest criminal history category is reached, it may proceed vertically without needing to justify each intermediate level. This approach aligns with precedents, indicating that a district court is not required to detail every intervening level for vertical departures based on aggravating circumstances. Thus, a mechanical review for vertical departures is unnecessary if adequate justification for the departure's extent is provided.
The court rejects the defendant's claim that the district court's upward departure from the sentencing guideline was unreasonable. The maximum possible sentence was ten years (120 months), and the sentence imposed was below this maximum. The court found that the upward departure was reasonable and not an abuse of discretion, referencing precedents such as United States v. Nilsen and United States v. Dempsey, which support the reasonableness of upward departures when the imposed sentence is under the statutory maximum. The court affirms the defendant's conviction and sentence. Additionally, the defendant's challenges regarding the denial of a motion for continuance and the consolidation of counts were also rejected. Factors disallowed as bases for departure, as per the Sentencing Commission, include race, sex, and socio-economic status, among others. The court noted that prior violations of court orders by the defendant did not impact his criminal history category before the upward departure was applied.
