United States v. Jeremiah Gene Russell , 322 F. App'x 920 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-13281 ELEVENTH CIRCUIT
APRIL 13, 2009
________________________
THOMAS K. KAHN
CLERK
D. C. Docket No. 08-00077-CR-WBH-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEREMIAH GENE RUSSELL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 13, 2009)
Before BLACK and MARCUS, Circuit Judges, and BUCKLEW,* District Judge.
BUCKLEW, District Judge:
*
Honorable Susan C. Bucklew, United States District Judge for the Middle District of
Florida, sitting by designation.
Appellant, Jeremiah Gene Russell, appeals the 37-month sentence imposed
by the district court after Appellant pled guilty to a violation of 18 U.S.C.
§ 871(a), which proscribes knowingly and willfully threatening the life of the
President of the United States.
I. BACKGROUND
Appellant was arrested on November 15, 2006 after calling 911 from a
public payphone at a gas station and informing the dispatcher that he was
“thinking about killing the President,” that he “really mean[t] it,” and that he
would be waiting near the payphone for the police to come and pick him up.
Corporal Preston Peavy of the Cherokee County Sheriff’s Office responded to the
gas station and located Appellant, who reiterated to the officer that he wanted to
kill the President and explained that he would be forced to do so because the
President had ordered that Appellant be killed. Corporal Peavy transported
Appellant to the Cherokee County Sheriff’s Office. At the Sheriff’s office, Secret
Service Agent Andrew Kull interviewed Appellant, who again stated that he was
“gonna kill the President,” and that he was “gonna make sure it happen[ed]”
because, among other things, the President was raping Iraqi children. Appellant
went on to say that if God or the Holy Spirit told him to kill, he would, and that he
had been voluntarily committed to several hospitals in Florida for mental
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problems.
In March of 2008, Appellant pled guilty to a one-count information
charging him with a violation of 18 U.S.C. § 871(a). The Pre-sentence
Investigation Report (“PSI”) determined Appellant’s base offense level to be a 12,
pursuant to United States Sentencing Guidelines (“Guidelines”) § 2A6.1(a)(1) and
recommended a two-level increase under § 2A6.1(b)(2) for making more than two
threats, a three-level increase under § 3A1.2(a) because the crime was motivated
by the victim’s status as a government officer, and a three-level reduction under §
3E1.1(b) for acceptance of responsibility, resulting in a total offense level of
fourteen. The PSI determined the criminal-history category to be a V and the
Guidelines range to be between 33 and 41 months. The PSI did not recommend a
four-level decrease under § 2A6.1(b)(5) for an offense involving a “single instance
evidencing little or no deliberation.”
At sentencing, the district judge sustained Appellant’s objection to the two-
level increase under § 2A6.1(b)(2) for making more than two threats1 but denied,
over Appellant’s objection, a four-level reduction under § 2A6.1(b)(5), applicable
when the offense involves a “single instance evidencing little or no deliberation.”
Also over Appellant’s objection, the district judge increased Appellant’s offense
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The resulting reduction in Appellant’s offense level made him eligible only for a two-
level, rather than a three-level, decrease for his acceptance of responsibility under § 3E1.1.
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level by three under § 3A1.2(a) of the Guidelines, as recommended by the PSI,
finding that the offense was motivated by the victim’s status as a government
officer. The total offense level was a 13, with an applicable Guideline sentencing
range of 30 to 37 months. The district court sentenced Appellant to 37 months of
imprisonment and three years of supervised release. Appellant objected to the 37-
month sentence, arguing that it was both procedurally and substantively
unreasonable. He now appeals his sentence, attacking the district court’s rulings
with regard to the Guidelines issues and the reasonableness of the sentence.
II. DISCUSSION
This Court reviews the factual findings underlying a district court’s
sentencing determination for clear error. United States v. Williams, 527 F.3d
1235, 1247 (11th Cir. 2008). It reviews the district court’s application of the
Guidelines to those facts de novo. Id. at 1247–48.
A. Denial of the Four-Level Decrease Under § 2A6.1(b)(5)
This Court first examines the district court’s denial of the four-level
reduction required by the Guidelines § 2A6.1(b)(5) when an offense involves a
“single instance evidencing little or no deliberation.” Appellant claims that the
district court wrongfully withheld this reduction because 1) the threat, although
repeated multiple times, comprised only a single instance, and 2) the record is
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devoid of evidence indicating that Appellant deliberated before making the threat
and instead shows that Appellant was delusional and incapable of deliberation.
It appears that the district court did not find Appellant’s conduct to
constitute more than a single instance, but rather based its refusal to apply the §
2A6.1(b)(5) reduction on a finding of deliberation.2 This Court finds no clear
error with regard to the lower court’s finding of deliberation and affirms the
district court’s denial of the four-level decrease.
1. Single Instance of Conduct
The Eleventh Circuit has not articulated a formulaic definition of a “single
instance” under § 2A6.1(b)(5). However, the Circuit is not without the benefit of
instructive jurisprudence, and that jurisprudence makes clear that identifying “a
single instance” of threat is a heavily fact-dependent process.
The Ninth Circuit has held that a single threat and “a single instance” are
not synonymous but that conduct involving several threats may constitute a
“single instance” within the meaning of § 2A6.1(b)(5). United States v. Sanders,
41 F.3d 480, 484 (9th Cir. 1994). The Sanders court elaborated on the distinction,
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The district judge stated, in discussing the § 2A6.1(b)(5) enhancement, “I think it’s not
necessarily a separate instance of a threat, but I think it can be. And I’m not really sure. I kind of
gave [Appellant] the benefit of the doubt.” (R69, p. 18.) Also, in sustaining Appellant’s
objection to a two-level sentencing increase that was to be applied only if Appellant made two or
more threats, the Court characterized Appellant’s behavior as one threat made to the 911
dispatcher and merely repeated to Officer Peavy and Special Agent Kull. (Id. at 15–16; see also
id. at 2.)
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explaining that several threats made as part of a single scheme or purpose would
qualify as “a single instance,” whereas multiple threats toward different targets
based on distinct motivations would not. Id. The Eighth Circuit has held that
threats can be ineligible for a single-instance classification when they are made
through different media intended for separate audiences. United States v.
Humphreys, 352 F.3d 1175, 1177 (8th Cir. 2003). In Humphreys, the Eighth
Circuit held that the district court did not commit clear error in finding that a
defendant’s statements threatening the President were not a “single instance”
because the defendant made threats by fax, in a chat room, and in person,
communicating with three different people at different times, and the threats were
not the result of a singular impulse. Id. As these cases illustrate, factual findings
as to the interrelated nature of separate threats are a crucial factor in determining
whether the threats constitute a single instance, or multiple instances.
Also instructive is the Eleventh Circuit opinion in United States v. Scott,
441 F.3d 1322 (11th Cir. 2006). In Scott, the Eleventh Circuit construed §
2A6.1(b)(1) of the Guidelines, which calls for a six-level offense increase when a
defendant acts in a manner evidencing his intent to carry out the threat. The court
found the increase applicable only when the conduct cited for the increase
occurred prior to or during the offense, not once the defendant is in custody. Id.
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at 1329. Both § 2A6.1(b)(1) and § 2A6.1(b)(5) involve offense-level adjustments
based on conduct comprising “the offense,” and thus, the Scott court’s clarification
of which acts constitute “the offense” in § 2A6.1(b)(1) is instructive in the
interpretation of § 2A6.1(b)(5) here.
In this case, Appellant made a single 911 phone call threatening to kill the
President, and then he repeated the threat to the officer dispatched to his location
and repeated it again while being questioned by the Secret Service Agent at the
Sheriff’s Office. The Government argues that Appellant’s statements to the 911
dispatcher, the investigating police officer, and the questioning agent all qualify as
separate instances. However, in none of Appellant’s statements did the stated
victim or ultimate intention vary, and all of the remarks were made in the same
course of dealings with law enforcement over a few hours. Therefore, applying
the reasoning of the court in Scott, this Court finds that Appellant’s threats are best
construed as part of a “single instance.”
2. Little or No Deliberation
For the four-level decrease under § 2A6.1(b)(5) to apply, a defendant’s
threat(s) must not only have been limited to a single instance, but it must also have
evidenced little or no deliberation. Circuits differ as to what evidence is sufficient
to allow a district court’s inference that deliberation preceded a threat. The Fifth
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Circuit, for example, upheld a district court’s finding that a defendant deliberated
before sending a threatening letter based on the sender’s:
. . . deliberate securing of stationery and postage, the composition of a
letter, the search for an address, and the act of taking the letter to be
mailed. It was not a spontaneous, momentary action done out of
opportunity or impulse. There were many steps along the way in
which he could have stopped himself, but he didn't.
United States v. Stevenson, 126 F.3d 662, 665 (5th Cir. 1997).
In United States v. Horton, 98 F.3d 313 (7th Cir. 1996), by contrast, the
Seventh Circuit vacated a sentence and remanded to the district court for more
thorough analysis as to the defendant’s deliberation. The Horton court found that
the district court’s inference that the defendant had deliberated about whether to
call in a bomb threat to a federal building was too speculative, despite the fact that
the threat occurred one day after the Oklahoma City bombing and that the
defendant had been in and around the building for 40 minutes before looking up
the phone number for the United States Marshal’s office in a telephone book and
calling in the threat. Id. at 315–16, 319–20. The Seventh Circuit found that the
district judge had failed to consider that some of the defendant’s activities in the
vicinity of the building prior to the phone call were entirely unrelated to the threat.
Id. at 319–20. Both Stevenson and Horton elucidate the need for a case-by-case
review of the factual context of a threat in order to make a deliberation finding.
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Appellant argues that there is no evidence in the record that he deliberated
before making the threat against the President. The district court, however,
disagreed, and this Court cannot find clear error in that determination. At
sentencing, Special Agent Kull testified that when he interviewed Appellant,
Appellant stated “that he was on his way to kill the President, he had walked from
Alabama to do so.” (R69, pp. 7–8.) Appellant had, in fact, walked and hitchhiked
from Alabama to Georgia before calling 911. (Id. at 17.) The district court found
that “there had to be substantial deliberation between Alabama and Georgia. . . .
Not counting what deliberation he might have engaged in prior to that time.” (Id.)
Further, the Government argued at sentencing that “the detail that the defendant
went into . . . about why he wants to [kill the President]” also indicated
deliberation, citing Appellant’s various and detailed descriptions of the behavior
that Appellant claimed necessitated the President’s assassination. (Id. at 23–24.)
The deference owed to the district court’s fact-finding compel this Court to
affirm the district court’s ruling as to the § 2A6.1(b)(5) four-level decrease. The
district court was not clearly erroneous in its finding that Appellant’s statements
that he walked from Alabama to Georgia to kill the President, combined with
Appellant’s detailed explanations of the motivations underlying his threat,
indicated that Appellant deliberated before making the 911 call. Pursuant to a
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finding that Appellant deliberated before the offense, Appellant was not eligible
for the four-level decrease under § 2A6.1(b)(5), and thus, the trial court was
correct in so ruling.
B. Application of the Three-Level Increase Under § 3A1.2(a)
This Court next examines Appellant’s claim that the three-level increase
under § 3A1.2(a) of the Guidelines was wrongfully applied to his sentence.
Section 3A1.2(a) of the Guidelines provides for a three-level offense increase if a
defendant’s crime was motivated by the victim’s status as a government officer or
employee. The increase does not apply if the crime was not motivated by the
victim’s official status, as when “both the defendant and victim were employed by
the same government agency and the offense was motivated by a personal
dispute,” for example. U.S.S.G. § 3A1.2, n.3.
Appellant claims that the trial court erred in applying the § 3A1.2(a)
increase in his case because Appellant’s threat was unrelated to the President’s
official status but was instead motivated by Appellant’s delusional thinking and
his desire to be taken into custody. Appellant supports his argument by noting that
he called the police, identified himself, revealed his location and intentions, and
waited for the police to come get him. Further, Appellant claims that even his
stated motivations were based on delusions about atrocities he believed the
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President was committing in his individual, rather than official, capacity, such as
raping children in Iraq and ordering people to kill Appellant. Appellant claims
that his desire to kill the President should therefore be likened to a “personal
dispute,” rather than animus triggered by the victim’s status as President of the
United States.
The district court found that there was “no doubt” that Appellant was
motivated by the President’s status. This Court sees no clear error in that
conclusion. It was not clear error to find that Appellant was driven by what he
himself repeatedly and frequently cited as his motivation: the President’s behavior
as imagined by Appellant. Further, despite the fact that Appellant’s stated
motivation involved delusions of the abuse, rather than the proper use, of official
power, this Court finds no clear error in the trial court’s determination that the
inciting imagined actions were associated with the President’s official status. In
this case, it was unnecessary to find that Appellant was motivated by behavior
associated solely with the President’s proper and actual use of his position. Here,
it was sufficient to find that Appellant was provoked by acts he believed the
President was committing by virtue of the power and opportunity afforded to him,
qua President.
Thus, the trial court did not clearly err in finding that Appellant was
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motivated by the President’s official status. Based on that finding, the court
properly applied the three-level increase under § 3A1.2(a).
C. Reasonableness of Appellant’s 37-Month Sentence
Finally, this Court reviews the overall reasonableness of Appellant’s
sentence. A district court should determine a defendant’s sentence by first
calculating the applicable Guideline range, next, hearing the parties’ arguments as
to what would constitute a reasonable sentence, and finally, devising a sentence
calibrated to the facts of the case when considered in light of the factors listed
under 18 U.S.C. § 3553(a). Gall v. United States, __ U.S. __, 128 S. Ct. 586, 596,
169 L. Ed. 2d 445, 457 (2007). Under 18 U.S.C. § 3553(a), a district court must
consider a defendant’s sentence in relation to the offense itself, the defendant’s
history and characteristics, the need for punishment, promotion of respect for the
law, deterrence, protection of the public, the needs of the defendant, the
Guidelines, and policy concerns highlighted by the Sentencing Commission.
Mental deficiency has traditionally been viewed as a personal characteristic that
may mitigate the culpability of a defendant. See, e.g., Wiggins v. Smith, 539 U.S.
510, 534–35, 123 S. Ct. 2527, 2542, 156 L. Ed. 2d 471, 493 (2003) (finding the
defendant’s right to effective assistance of counsel was violated where a
defendant’s counsel failed to investigate and present mitigating evidence,
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including the defendant’s diminished mental capacity); Stephens v. Kemp, 846
F.2d 642, 653–55 (11th Cir. 1988) (finding ineffective assistance of counsel where
a defendant’s counsel did not guide the jury by explaining that the defendant’s
mental condition could be used to mitigate his sentence).
An appellant may successfully challenge a sentence by showing that the
district court committed a “significant procedural error, such as . . . failing to
consider the § 3553(a) factors,” when calculating the sentence. Gall, ___ U.S. at
___, 128 S. Ct. at 597, 169 L. Ed. 2d at 457. However, a district court need not
expressly discuss each and every § 3553(a) factor at the time of sentencing, but
need only note that it has considered a defendant’s arguments along with the §
3553(a) factors. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). In
the absence of a procedural sentencing error by the district court, this Court
reviews the sentence imposed for abuse of discretion, considering the
reasonableness of the sentence when viewed in light of the factors outlined in §
3553(a). Gall, ___U.S. at ___, 128 S. Ct. at 597, 169 L. Ed. 2d at 457.
Appellant argues that his sentencing was procedurally errant and
substantively unreasonable. First, Appellant claims procedural error in calculating
his Guideline range, both because the range was miscalculated per the arguments
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discussed above,3 and because the district court did not take proper consideration
of a § 3553(a) factor, Appellant’s mental illness. Next, Appellant claims that the
sentence is substantively unreasonable, because—despite acknowledging
Appellant’s delusional state at the time of the offense (see, e.g., R69, p. 40)—the
district court did not adjust the sentence and thus improperly sentenced Appellant
just as it would a sane person who committed the same offense.
Because the other issues informing Appellant’s reasonableness claim are
discussed above, the only element left to examine is the district court’s alleged
failure to properly consider Appellant’s mental illness in both the procedural and
substantive determination of his sentence. Appellant’s challenge to the overall
reasonableness of his sentence is primarily founded in a single statement made by
the trial judge:
[I]t’s hard for me to believe that the Sentencing Commission, when
crafting the guidelines, did not recognize the fact that a substantial
percentage of persons who threaten the life of the President are
mentally unstable. I think it would be probably said to be common
knowledge of that fact. And, yet, the guidelines do not carve out an
exception for circumstances such— such as this.
(R69, p. 42.)
However, this single statement, when viewed in context, does not connote
all that Appellant contends. First, as to the procedural accuracy of the sentencing
3
See discussion supra Sections II.A–B.
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calculation, the district court did not say that it could not consider mental illness or
that it was not a § 3553(a) factor. Rather, a more thorough examination of the
sentencing transcript reveals that the district court did take Appellant’s mental
illness into account before fashioning Appellant’s sentence.
The district judge heard from the parties about Appellant’s mental condition
at length and engaged the parties in their arguments as to the role the condition
should play in sentencing. (See, e.g., R69, pp. 10–11, 19–21, 40–41.) This is
consistent with the assertion that the court believed Appellant’s condition to be
relevant. Further, the district court expressly stated that the sentence “[took] into
consideration the applicable sentencing factors under 18 U.S.C. § 3553(a). And
[the court had] carefully considered all of those factors and believe[d] that this
[was] a fair and just and reasonable sentence under all the circumstances.” (Id. at
43.) Under Talley, this statement and the surrounding circumstances of the
sentencing are sufficient to show that the district court did not err procedurally by
failing to consider Appellant’s mental illness or to apprehend that the condition
could serve as a basis for altering Appellant’s sentence.
Next, as to the substantive reasonableness of the sentence, again the lengthy
discussion of Appellant’s mental illness at sentencing indicates that the district
judge took Appellant’s condition into account before imposing his sentence.
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However, the district court was not required to reduce the sentence on the basis of
Appellant’s mental illness. The district judge clearly considered the issue. He
summarized the Government’s argument that Appellant’s threat was real and
serious, and Appellant’s argument that the threat was merely a “cry for help” by a
mentally unstable man. After considering the parties’ arguments and all of the §
3553(a) factors, the district court found a 37-month sentence to be “a fair and just
and reasonable sentence under all the circumstances.” This Court has considered
the reasonableness of the sentence imposed in light of the facts in the record, such
as Appellant’s mental illness and violent criminal history, and the arguments
presented by the parties, and finds that the trial court did not abuse its discretion in
imposing a 37-month Guideline-range sentence.
AFFIRMED.
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