United States v. Godsey , 214 F. App'x 274 ( 2007 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 06-4243
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    KENNETH ROBERT GODSEY,
    Defendant - Appellant.
    Appeal from the United States District Court for the Southern
    District of West Virginia, at Bluefield. David A. Faber, Chief
    District Judge. (1:05-00114-001)
    Argued:   December 1, 2006                 Decided:   January 24, 2007
    Before WILKINS, Chief Judge, WILKINSON, Circuit Judge, and Henry F.
    FLOYD, United States District Judge for the District of South
    Carolina, sitting by designation.
    Affirmed by unpublished per curiam opinion.
    ARGUED: Jonathan David Byrne, OFFICE OF THE FEDERAL PUBLIC
    DEFENDER, Charleston, West Virginia, for Appellant.      Miller A.
    Bushong, III, Assistant United States Attorney, OFFICE OF THE
    UNITED STATES ATTORNEY, Beckley, West Virginia, for Appellee. ON
    BRIEF: Mary Lou Newberger, Federal Public Defender, George H.
    Lancaster, Jr., Assistant Federal Public Defender, OFFICE OF THE
    FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant.
    Charles T. Miller, United States Attorney, Charleston, West
    Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Kenneth   Robert   Godsey   appeals   his   sentence    for   mailing
    threatening letters.    See 
    18 U.S.C.A. § 876
    (c) (West Supp. 2006).
    Finding no error, we affirm.
    I.
    The act comprising the offense of conviction consisted of a
    letter mailed by Godsey to Kristi Rose in November 2004 in which
    Godsey threatened, in chilling terms, to come to Rose’s home at
    night with his shotgun and shoot her and anyone else in her home.
    He told her, “I want you to fear me,” and that his “intentions are
    cruel and to kill.”     J.A. 73 (internal quotation marks omitted).
    Godsey’s   misconduct   was   hardly   limited    to   his   offense    of
    conviction, however.      In December 2004, Godsey mailed Mercer
    County, West Virginia Prosecuting Attorney William J. Sadler a
    letter in which Godsey stated that he hoped Sadler would die and
    that he wanted to “bend [Sadler’s wife] over and f*** her.”         
    Id. at 74
     (internal quotation marks omitted).           In April 2005, Godsey
    mailed a letter to United States Probation Office employee Jeanne
    Buckner in which he stated, “Someone like you needs to be f***ed
    before they get their brains blow[n] out, raped and murdered.” 
    Id.
    (internal quotation marks omitted).        Also in April 2005, Godsey
    sent Dennis Lee, Special Assistant United States Attorney for the
    Western District of Virginia and Prosecuting Attorney for the
    2
    Commonwealth of Virginia, a letter telling him, “I’m coming after
    you, and I’m going to kill you.”                
    Id. at 75
     (internal quotation
    marks omitted).      In other letters to many women with whom Godsey
    was not acquainted--including many government officials and public
    servants--Godsey explicitly described sex acts that he wished to
    engage in with them.           Godsey also left several harassing and
    sexually explicit voicemails for female United States Probation
    Office employees (one of whom was Buckner).
    On June 2, 2005, a federal grand jury returned a three-count
    indictment      charging   Godsey     with      mailing   threatening     letters.
    Godsey pleaded guilty on October 4, 2005, via a written plea
    agreement, to Count One of the indictment.                 Even after pleading
    guilty, Godsey continued his pattern of misconduct, attempting to
    make    seven    collect   calls      to    the   Tazewell      County,   Virginia
    Prosecutor’s Office and mailing a sexually explicit letter to a
    woman to whom he had previously sent several other such letters.
    At sentencing, in calculating Godsey’s guideline range, the
    district court used a base offense level of 12.                 See United States
    Sentencing Guidelines Manual § 2A6.1(a)(1) (2005).                    Finding no
    applicable      enhancements     or        reductions,    the    district    court
    determined that 12 was also Godsey’s total offense level.                    This,
    with Godsey’s Criminal History Category of IV, yielded a guideline
    range of 21-27 months imprisonment.                 The district court then
    departed upward on the basis that this range did not properly
    3
    account for the seriousness of Godsey’s misconduct since it did not
    reflect any of Godsey’s communications other than the single letter
    to Rose.        See U.S.S.G. § 5K2.21, p.s.             Thus, considering the
    factors       that   the   court   was       required    to   consider   under
    
    18 U.S.C.A. § 3553
    (a) (West 2000 & Supp. 2006), the district court
    imposed a sentence of 60 months imprisonment, the maximum penalty
    authorized under 
    18 U.S.C.A. § 876
    (c).           The district court did not
    explicitly indicate whether it departed up to a range that included
    a 60-month imprisonment term, or rather, whether it departed to
    some lower range and then imposed a variance sentence.*
    II.
    Godsey contends that his 60-month sentence was unreasonably
    long.       We disagree.
    In United States v. Booker, 
    543 U.S. 220
    , 244 (2005), the
    Supreme Court held that the Sixth Amendment right to a jury trial
    is violated when the district court, acting pursuant to a mandatory
    guidelines system, imposes a sentence greater than the maximum
    authorized by the facts found by the jury alone.               To remedy this
    problem, the Court severed and excised the provisions of the
    *
    We note that, at the time of Godsey’s sentencing hearing,
    although United States v. Booker, 
    543 U.S. 220
     (2005), had already
    been decided, the district court did not have the benefit of our
    decision in United States v. Moreland, 
    437 F.3d 424
    , 432 (4th
    Cir.), cert. denied, 
    126 S. Ct. 2054
     (2006), which would have made
    the proper procedure clear.
    4
    Sentencing Reform Act, see Sentencing Reform Act of 1984, Pub. L.
    No. 98-473, ch. II, 
    98 Stat. 1987
    -2040 (1984) (codified as amended
    at 
    18 U.S.C.A. §§ 3551-3742
     (West 2000 & Supp. 2006) and at 
    28 U.S.C.A. §§ 991-998
     (West 1993 & Supp. 2006)), that mandated
    sentencing and appellate review in conformance with the guidelines.
    See Booker, 543 U.S. at 259 (severing and excising 
    18 U.S.C.A. § 3553
    (b)(1) (West Supp. 2006) and 
    18 U.S.C.A. § 3742
    (e) (West 2000
    & Supp. 2006)). This excision rendered the guidelines “effectively
    advisory,” 
    id. at 245
    , and replaced the previous standard of review
    with review for reasonableness, see 
    id. at 261
    .
    This court has previously described the necessary procedure
    for imposing sentence under the now-advisory sentencing guidelines:
    First, the court must correctly determine, after making
    appropriate findings of fact, the applicable guideline
    range. Next, the court must determine whether a sentence
    within that range serves the factors set forth in
    § 3553(a) and, if not, select a sentence within statutory
    limits that does serve those factors. In doing so, the
    district court should first look to whether a departure
    is appropriate based on the Guidelines Manual or relevant
    case law....    If an appropriate basis for departure
    exists, the district court may depart. If the resulting
    departure range still does not serve the factors set
    forth in § 3553(a), the court may then elect to impose a
    non-guideline sentence (a “variance sentence”).       The
    district court must articulate the reasons for the
    sentence imposed, particularly explaining any departure
    or variance from the guideline range. The explanation of
    a variance sentence must be tied to the factors set forth
    in § 3553(a) and must be accompanied by findings of fact
    as necessary. The district court need not discuss each
    factor set forth in § 3553(a) in checklist fashion; it is
    enough to calculate the range accurately and explain why
    (if the sentence lies outside it) this defendant deserves
    more or less.
    5
    United States v. Moreland, 
    437 F.3d 424
    , 432 (4th Cir.), cert.
    denied, 
    126 S. Ct. 2054
     (2006) (citations, internal quotation
    marks,     &   alterations      omitted).           We   review     a    sentence    for
    reasonableness, considering “the extent to which the sentence ...
    comports with the various, and sometimes competing, goals of
    § 3553(a).”      Id. at 433.
    Although     the    numerous          other    threatening         or   harassing
    communications      for       which    the       district     court      found     Godsey
    responsible were not part of the offense of conviction or relevant
    conduct, the guidelines specifically authorize a departure based on
    that conduct.      See U.S.S.G. § 5K2.21, p.s.                And, the presentence
    report had not only reported the other misconduct but also observed
    that “the Court may consider an upward departure” to account for
    it.   J.A. 85.     Indeed, the presentence report estimated that had
    Godsey been convicted of all three charged counts, his offense
    level would have been 20, which, when considered with Godsey’s
    Criminal History Category, would have yielded a guideline range of
    51-63 months.
    In   selecting      a    term    of    60     months,   the       district    court
    explicitly considered the seriousness of the offense of conviction
    by noting the “aggravated nature” of Godsey’s conduct, including
    the “despicable and disgusting” language that he used to ensure
    that his threats and harassment achieved maximum effect on his
    victims.       Id. at 54, 58.         The district court specifically noted
    6
    that Godsey’s continued pattern of reprehensible conduct, even
    after     pleading       guilty,    required     a    sentence     necessary     to
    “incapacitate[ him] from further crimes of this nature” and “to
    deter conduct of this nature” by Godsey and others.                     Id. at 58.
    The district court also noted that the length of the sentence would
    provide Godsey additional time to rehabilitate himself.
    Godsey maintains that his 60-month sentence was unreasonable
    because     “the   policy     choices      of   the   Sentencing        Commission,
    reinforced by Congress, were that an offense level of 12 [and a
    corresponding      guideline       range   of   21-27     months   imprisonment]
    adequately represents the seriousness of Godsey’s offense.” Br. of
    Appellant    at    17.     This    argument     plainly   fails    to    recognize,
    however, that U.S.S.G. § 5K2.21 specifically authorizes district
    courts to depart upward based on dismissed and uncharged conduct
    not reflected in the applicable guideline range.                    The analysis
    employed by the district court here was eminently sound, and the
    60-month sentence was reasonable in light of the § 3553(a) factors.
    III.
    Godsey also argues that the district court erred in imposing
    a sentence above the range of 21-27 months without previously
    providing notice of its intent to do so.              We disagree.
    Rule 32(h) of the Federal Rules of Criminal Procedure provides
    that “[b]efore the court may depart from the applicable sentencing
    7
    range on a ground not identified for departure either in the
    presentence report or in a party’s prehearing submission, the court
    must give the parties reasonable notice that it is contemplating
    such a departure.”         Fed. R. Crim. P. 32(h) (emphasis added).                    We
    have   held    that     Rule    32(h)    applies      to    variances     as   well    as
    departures. See United States v. Davenport, 
    445 F.3d 366
    , 371 (4th
    Cir. 2006).
    Godsey contends that the statement in the presentence report
    that “the Court may consider an upward departure in sentencing to
    consider the seriousness of underlying charges that are dismissed
    pursuant     to   the    plea   agreement      that    did    not    enter     into    the
    determination of the applicable guideline range” did not satisfy
    Rule 32(h) because it did not constitute a recommendation that the
    district      court     actually   depart.         J.A.      85   (emphasis      added).
    Godsey’s reasoning is misplaced.                 The role of the presentence
    report is not to decide on which bases, if any, the district court
    should depart, but rather, merely to “identify any basis for
    departing.”       Fed. R. Crim. P. 32(d)(1)(E).               Fulfilling this role
    adequately places the defendant on notice of the bases on which the
    district court may depart.              See Burns v. United States, 
    501 U.S. 129
    ,   137    (1991)     (explaining      that   the       purpose   of   Rule    32    is
    “promoting focused, adversarial resolution of the legal and factual
    issues relevant to fixing Guidelines sentences”).                          No further
    notice is required.
    8
    IV.
    In sum, for the foregoing reasons, Godsey’s sentence is
    affirmed.
    AFFIRMED
    9
    

Document Info

Docket Number: 06-4243

Citation Numbers: 214 F. App'x 274

Judges: Floyd, Henry, Per Curiam, Wilkins, Wilkinson

Filed Date: 1/24/2007

Precedential Status: Non-Precedential

Modified Date: 8/7/2023