United States v. Mandel Tarij Brock, A/K/A Shaheed Shabazz
Docket: 99-4389
Court: Court of Appeals for the Fourth Circuit; April 13, 2000; Federal Appellate Court
Mandel Tarij Brock appealed his sentence after pleading guilty to making repeated harassing interstate telephone calls in violation of 47 U.S.C.A. § 223(a)(1)(E). He contested a two-level sentencing enhancement applied by the district court under U.S. Sentencing Guidelines Manual § 2A6.1(b)(2), arguing it was legally improper and unsupported by evidence. The Fourth Circuit found that the district court had indeed misapplied the guidelines, resulting in a decision to vacate and remand for re-sentencing.
Between October 29 and December 14, 1998, Brock made over 40 calls to his ex-girlfriend, Christel Dews, while she lived in Virginia. Although he acknowledged using “threatening words” during the calls, he denied any intent to threaten or carry out harm. Under a plea agreement, Brock accepted a base offense level of 6, as the conduct did not involve a true threat, but acknowledged the potential for enhancements. The pre-sentence report recommended an adjusted offense level of ten, including enhancements for multiple threats and violation of a protection order, ultimately factoring in a reduction for acceptance of responsibility to arrive at a total offense level of eight. Brock had waived his right to appeal the sentence, except in cases of upward departures or factual deviations from the guidelines.
Brock objected to a two-level enhancement in his sentencing for making more than two threats, which the district court overruled. The court imposed a total offense level of eight and a Criminal History Category of IV, resulting in a sentencing guideline range of 10-16 months. Brock was sentenced to 14 months of imprisonment and 12 months of supervised release, after which he appealed.
Brock argues that the district court's imposition of the enhancement was erroneous, claiming it contradicts the selected base offense level of six under U.S.S.G. § 2A6.1(a)(2), which applies when an offense does not involve a threat to injure a person or property. This matter pertains to guideline construction and is reviewed de novo.
The enhancement under § 2A6.1(b)(2) for making more than two threats appears inconsistent with the base offense level determination. However, the guidelines indicate that "offense" has different meanings in various contexts, potentially allowing for compatibility if "offense" in § 2A6.1(a)(2) refers to the conviction without relevant conduct, while in § 2A6.1(b)(2), it includes relevant conduct. The guidelines define "offense" broadly, encompassing the conviction and all relevant conduct, unless stated otherwise.
Furthermore, the guidelines commentary specifies that when multiple base offense levels exist, the applicable level is determined similarly to specific offense characteristics, guided by the relevant conduct principles in § 1B1.3. Unlike other provisions that strictly require a conviction under a specific statute for determining the base offense level, § 2A6.1(a)(2) includes a modifying phrase asserting that the offense must not involve a threat to injure a person or property, indicating that relevant conduct should be factored into the determination of the base offense level.
47 U.S.C.A. 223(a) criminalizes certain telecommunications offenses, specifically: (C) making calls without disclosing identity with intent to annoy or harass; (D) causing another's phone to ring repeatedly to harass; and (E) making repeated calls solely to harass. These actions can result in fines or imprisonment up to two years. The phrase "did not involve a threat to injure a person or property" in U.S.S.G. 2A6.1(a)(2) refers to relevant conduct rather than offense elements, as per statutory interpretation principles established in United States v. Nordic Village, Inc. and United States v. Bahhur.
The district court must consider relevant conduct when determining the base offense level, moving beyond merely the charges brought by the Government. Both U.S.S.G. 2A6.1(a)(2) and (b)(2) include relevant conduct in the definition of "offense." Therefore, applying a two-level enhancement for threats while maintaining a base offense level of six creates contradictory factual findings. Consequently, the enhancement applied to Brock's sentence was improper.
If a defendant's relevant conduct under 47 U.S.C.A. 223(a)(1)(E) includes threats, a base offense level of 12 should be used. If there are multiple threats, a two-level enhancement would then be appropriate. However, since the Government did not challenge the base level six selection and Brock only contested the enhancement, the focus is on the enhancement's validity. The conclusion is that the two-level enhancement cannot be consistently applied to a base level of six, leading to the decision to vacate Brock's sentence and remand for re-sentencing without the enhancement.
Brock may have waived his argument regarding sentencing due to his plea agreement, but the Government chose not to assert this waiver, leaving the court to avoid ruling on it. The term "offense" in U.S.S.G. 2A6.1(b)(2) encompasses relevant conduct as outlined in U.S.S.G. 1B1.3(a). A conviction under 47 U.S.C.A. 223(a)(1)(C, D, or E) does not necessitate the actual making of threats; for example, making an anonymous threatening call qualifies as a violation regardless of whether the threat was realized. The consideration of relevant conduct in sentencing aligns with pre-guidelines practices, allowing judges to factor in all relevant elements beyond the charge, thereby influencing the final sentence independent of the statutory charge. The Government argues that U.S.S.G. 2A6.1(a)(2) and 2A6.1(b)(2) can coexist due to their differing references to threats, but this distinction is irrelevant in Brock's case, as all alleged threats were directed at Dews. Although Brock claims the district court's finding of multiple threats was erroneous, the court determines that the legal permissibility of the enhancement negates the need to evaluate this claim. Additionally, Brock argues that his criminal history score was incorrectly calculated due to a vacated North Carolina assault conviction, but this argument is disregarded as he waived the right to appeal this aspect through his plea agreement, which the Government has opted to enforce.
