United States v. Stover ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4191
GREGORY ALLEN STOVER,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
David A. Faber, District Judge.
(CR-97-69)
Submitted: September 29, 1998
Decided: October 23, 1998
Before MURNAGHAN, HAMILTON, and WILLIAMS,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Hunt L. Charach, Federal Public Defender, Edward H. Weis, First
Assistant Federal Public Defender, Charleston, West Virginia, for
Appellant. Rebecca A. Betts, United States Attorney, Stephanie D.
Thacker, Assistant United States Attorney, Charleston, West Virginia,
for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Gregory Allen Stover pleaded guilty to one count of mailing a
threatening communication, see 18 U.S.C.§ 876 (1994), and received
a sentence of sixty months imprisonment. Stover appeals his sentence,
contending that the district court erred in finding that the adjustment
for official victims applied, see U.S.S.G.§ 3A1.2,* and in finding that
he had obstructed justice, see U.S.S.G.§ 3C1.1. We affirm.
In 1994, Stover was prosecuted in Kanawha County, West Vir-
ginia, on worthless check charges. He was sentenced in state court to
one to ten years imprisonment. In January 1996, while serving this
sentence, Stover mailed a hand-printed letter to the Kanawha County
Prosecuting Attorney's Office. The letter stated:
I am having two of your assistant prosecutors followed each
day the ones that helped put me where I am today wait and
see them get beat very badely [sic] I promise you.
The first time it was on me this time it's on you all. Mark
my words.
Stover's name and return address were on the envelope. His hand-
printed signature appeared on the letter. Two agents from the Federal
Bureau of Investigation (FBI) met with Stover in person in February
1996 and warned him against making such threats. In March 1996,
the FBI subpoenaed handwriting exemplars from Stover, but he
refused to provide them. In April 1996, Stover sent a second threaten-
ing letter to the prosecutor's office, again with a printed signature.
The letter read:
_________________________________________________________________
*U.S. Sentencing Guidelines Manual (1997).
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Don't be scared now I no [sic] were [sic] you live whore
you will be beaten in time trust me.
In November 1996, Stover provided handwriting exemplars to a
federal grand jury. In April 1997, handwriting analysis showed that
Stover wrote both threatening letters. In May 1997, Stover was
charged with two counts of mailing threatening communications. His
trial was scheduled for August. In July 1997, the Kanawha County
Prosecuting Attorney's Office received a third hand-printed letter
which stated:
You got the wrong man I told Greg I would get even and
I did don't you think so I will still get you whore.
The hand-printed signature read "Mr. Morris." The return address
was "Mr. Morris," at the same prison where Stover was confined. The
handwriting in this letter was similar to Stover's but could not be
identified conclusively as his. However, his fingerprint was on the let-
ter. Stover subsequently pled guilty to mailing the January 1996 letter.
After Stover's guilty plea, the Kanawha County Prosecuting Attor-
ney's Office received two more letters from Stover in which he made
threats to specific named persons in the prosecutor's office, as well
as two people in the county probation office.
Guidelines § 3A1.2(a) requires a three-level upward adjustment if
"the victim was a government officer or employee . . . and the offense
of conviction was motivated by such status." U.S.S.G. § 3A1.2
(1997). At sentencing, Stover argued that the January 1996 letter was
directed to the government generally, not to any specific person, and
thus the official victim adjustment should not apply. See U.S.S.G.
§ 3A1.2 (n.1) (adjustment applies only when specific individuals are
victims, not when victim is an organization, agency, or the govern-
ment); United States v. Schroeder, 902 F.2d 1469, 1471 (10th Cir.
1990) (threats to the government and unspecified people who work
for the government do not trigger the adjustment).
The district court determined that the January 1996 letter was
focused on the two assistant prosecutors who had prosecuted Stover
with sufficient particularity to make the adjustment applicable. The
court relied on United States v. Polk, 118 F.3d 286, 297-98 & n.10
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(5th Cir.), cert. denied, ___ U.S. ___, 66 U.S.L.W. 3355 (U.S. Nov.
17, 1997) (No. 97-6437), which held that the intended victims need
not be identified by name. In that case, evidence that the defendant
intended to kill or injure federal employees at the Internal Revenue
Service Center in Austin, Texas, was enough to trigger the adjust-
ment.
Stover argues on appeal that Polk was wrongly decided and that,
in this case, too, the district court failed to comply with the commen-
tary to Guidelines § 3A1.2, thus committing a legal error which we
should review de novo. U.S.S.G. § 1B1.1. We find, rather, that the
district court made a factual finding that the January 1996 letter con-
tained a threat to two specific, identifiable people--the two prosecu-
tors who had put him in prison on the worthless check conviction.
Factual findings relating to sentencing are reviewed for clear error.
See United States v. Daughtrey, 874 F.2d 213, 218 (4th Cir. 1989).
Guidelines § 3C1.1 directs that a two-level upward adjustment be
made "[i]f the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice during
the investigation, prosecution, or sentencing of the instant offense."
U.S.S.G. § 3C1.1 (1997). The commentary provides a non-exhaustive
list of types of conduct to which the adjustment applies as well as
examples of conduct to which the adjustment does not apply.
At sentencing, Stover argued that the July 1997 letter did not
impede the investigation of the offense and thus could not support an
adjustment for obstruction of justice under Guidelines § 3C1.1. See
U.S.S.G. § 3C1.1, comment. (n.3(g)) (False statements to law
enforcement officers, not made under oath, do not trigger the adjust-
ment unless the false statements significantly obstructed or impeded
the investigation or prosecution of the offense.). He also maintained
that, because the "Mr. Morris" letter was not produced during a judi-
cial proceeding and arguably would not have been admissible at trial,
the adjustment could not be justified under Application Note 3(c)
(producing or attempting to produce a false, altered, or counterfeit
document or record during an official investigation or judicial pro-
ceeding). The government countered that the adjustment applied
under Application Note 3(c) because Stover produced a false docu-
4
ment in an attempt to deflect prosecution or to provide a defense at
trial. See U.S.S.G. § 3C1.1, comment. (n.3(c)).
The district court agreed with the government that Stover's July
1997 letter attributing his previous threats to"Mr. Morris" was at least
analogous to the production of a false or counterfeit document during
an official proceeding. The district court reasoned that the letter from
"Mr. Morris" was an attempt to convince the victims of the January
and April 1996 threats that Stover had not sent those letters. Thus, the
letters constituted an attempt to obstruct or impede his prosecution.
Because attempts to obstruct justice are encompassed by the guide-
line, the court found that the adjustment should be applied.
We find that, although Stover's "Mr. Morris" letter may not fit
neatly into any of the categories set out in Application Note 3's non-
exhaustive list of conduct to which the adjustment applies, it was
undoubtedly an attempt to obstruct or impede his prosecution. The
plain language of the guideline provides that attempts to obstruct jus-
tice are a basis for the adjustment. See United States v. Self, 132 F.3d
1039, 1041 (4th Cir. 1997). Therefore, the district court did not
clearly err in finding that the adjustment applied here.
The sentence is accordingly affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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