United States v. Cocke ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40696
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAMUEL WILLIAM COCKE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-97-CR-9-1
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June 16, 1999
Before EMILIO M. GARZA, BENAVIDES, and PARKER, Circuit Judges.
PER CURIAM:*
Samuel William Cocke appeals his guilty-plea conviction for
making threats against the President and successors to the
President in violation of 18 U.S.C. § 871. Cocke contends that
the district court erred in denying his motion to dismiss the
indictment because it did not allege that he intended to carry
out the threat or that he intended the threat to be conveyed to
the President. Cocke’s argument is foreclosed by this court’s
precedent in United States v. DeShazo, 565 F.2d 893, 895 (5th
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 98-40696
-2-
Cir. 1978).
Cocke argues that the district court erred in not making a
factual finding concerning whether he actually traveled to
Washington, D.C., in February 1997 to conduct surveillance of the
White House before the district court increased his offense level
under U.S. Sentencing Guidelines § 2A6.1(b)(1). Because Cocke
told Secret Service agents in interviews that he conducted
surveillance of the White House and Cocke did not present any
specific evidence at sentencing to rebut the facts presented in
the Presentence Report (PSR) concerning his actions, the district
court was entitled to adopt the facts in the PSR without further
inquiry. See United States v. Sherbak, 950 F.2d 1095, 1099-1100
(5th Cir. 1992).
Cocke argues that the district court erred in not decreasing
his offense level by four levels under § 2A6.1(b)(4), which
provides for such a reduction if the threat “involved a single
instance evidencing little or no deliberation.” § 2A6.1(b)(4).
Because Cocke’s actions included obtaining stationery, searching
for an address, obtaining postage, and mailing the letter, his
actions were not spontaneous and did not warrant a reduction in
his offense level under § 2A6.1(b)(4). See United States v.
Stevenson, 126 F.3d 662, 665 (5th Cir. 1997).
AFFIRMED.