RAYMOND GIBSON, PETITIONER V. UNITED STATES OF AMERICA No. 90-7463 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The judgment order of the court of appeals, Pet. App. 1A, is unreported, but the judgment is noted at 922 F.2d 847 (Table). JURISDICTION The judgment of the court of appeals was entered on December 17, 1990. The petition for a writ of certiorari was filed on March 18, 1991 (a Monday). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the offense of mailing a threatening letter, in violation of 18 U.S.C. 876, constitutes a "crime of violence" for purposes of the "career offender" Sentencing Guideline, Section 4B1.1. STATEMENT Following a jury trial in the United States District Court for the Northern District of Georgia, petitoner was convicted on eight counts of mailing threatening communications, in violation of 18 U.S.C. 876. He was sentenced under the Sentencing Guidelines and under pre-Guidelines law to a total of 40 years' imprisonment, to be followed by two years of special parole. /1/ The court of appeals affirmed. 1. The evidence at trial showed that petitioner had been incarcerated since 1979 at Reidsville State Prison, where he was serving a sentence for armed robbery. Believing that he had been wrongly convicted, petitioner waged a letter-writing campaign threatening the lives of the parties involved in his state trial. Between July 23, 1984, and June 13, 1988, petitioner mailed eight letters threatening to injure or kill the state court judge who had presided over his trial, the state district attorney, his trial defense counsel, and the Georgia Bureau of Investigation agent who had investigated the armed robbery. Gov't C.A. Br. 2-6. 2. Three of the eight counts on which petitioner was convicted (Counts 10, 11, and 12) involved offenses occurring after November 1, 1987, the effective date of the Sentencing Guidelines. The presentence report (PSR) calculated petitioner's Guidelines range for each of those counts as 33-41 months' imprisonment, based on an offense level total of 13 and a criminal history category of VI. The PSR also determined, however, that petitioner's offense of mailing threatening letters constituted a "crime of violence" as defined in 18 U.S.C. 16. PSR 12. Because petitioner had at least two prior felony convictions for crimes of violence, the presentence report recommended that petitioner be sentenced under Sentencing Guidelines Section 4B1.1 as a "career offender." PSR 12. Under that Guideline, petitioner's sentencing range for each count was 51-63 months' imprisonment, based on an offense level of 17 and a criminal history category VI. The district court agreed with the presentence report's recommendation that petitioner should be sentenced under Sentencing Guidelines Section 4B1.1 as a "career offender." Pet. App. 2A-4A. The court overruled petitioner's objection that the offense of mailing a threatening letter did not constitute a "crime of violence" as defined in 18 U.S.C. 16. Pet. App. 2A. The court concluded that petitioner "fits this definition, that is, the definition of threatened use of physical force against the person." Id. at 3A. The court accordingly sentenced petitioner on these counts under the "career offender" Guideline to consecutive terms of 60 months' imprisonment, to be followed by two years of special parole. /2/ The other five counts on which petitioner was convicted involved offenses that occurred before the effective date of the Sentencing Guidelines. On those five counts, the district court sentenced petitioner under pre-Guidelines law to consecutive terms of five years' imprisonment on each count. 3. The court of appeals summarily affirmed in an unpublished judgment. Pet. App. 1A. ARGUMENT Petitioner does not challenge his convictions, nor does he challenge the sentence that he received under pre-Guidelines law. Instead, petitioner contends that he was improperly sentenced on three counts as a "career offender" under Sentencing Guidelines Section 4B1.1 because the offense of mailing a threatening letter under 18 U.S.C. 876 does not constitute a "crime of violence." Pet. 12-18. That claim does not warrant review by this Court. 1. The decision below is correct. Petitioner was properly sentenced under the "career offender" provision of Sentencing Guidelines Section 4B1.1. Sentencing Guidelines Section 4B1.1 imposes an enhanced punishment on a defendant who is at least 18 years old, who commits a "crime of violence," and who has at least two prior felony convictions for a "crime of violence." At the time petitioner was sentenced, the Sentencing Guidelines provided that "(t)he term 'crime of violence' as used in (Section 4B1.1) is defined under 18 U.S.C. Section 16." Sentencing Guidelines Section 4B1.2(1) (Jan. 15, 1988). /3/ In turn, 18 U.S.C. 16 defined the term "crime of violence" to mean (emphasis added): (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. In light of that definition, there is not merit to petitioner's contention that the offense of mailing a threatening communication under 18 U.S.C. 876 does not constitute a "crime of violence." As one of the essential elements of the offense, 18 U.S.C. 876 expressly requires that a communication convey a "threat to injure the person of the addressee or of another." /4/ The offense therefore "falls squarely within the definition of a crime of violence contained in 18 U.S.C. Section 16" for purposes of applying the "career offender" provision of Guidelines Section 4B1.1. United States v. Left Hand Bull, 901 F.2d 647, 649 (8th Cir. 1990). See also United States v. McCaleb, 908 F.2d 176, 178 (7th Cir. 1990) (holding that the offense of mailing a threatening communication to the President, in violation of 18 U.S.C. 871, constitutes a "crime of violence" under Section 4B1.1). See United States v. McDougherty, 920 F.2d 569, 574 (9th Cir. 1990) ("Use of physical force against the victim is only one element of a 'crime of violence.' Threatening to use physical force against the person or property of another also meets the definition of crime of violence."). Accordingly, because petitioner's offenses were clearly "crimes of violence," he was properly subjected to enhanced penalties as a "career offender" under Sentencing Guidelines Section 4B1.1. /5/ There is no merit in petitioner's contention that a sentencing court, in determining whether an offense is a "crime of violence" for purposes of Guidelines Sections 4B1.1 and 4B1.2(1), must examine the underlying facts of the offense to determine whether violence was in fact used. The definition found in 18 U.S.C. 16 of a "crime of violence" that was incorporated by the former version of Sentencing Guidelines Section 4B1.2(1) did not require such case-specific proof. That definition was phrased in terms of an offense that "has as an element" the use or threat of force, or any other offense that "by its nature" involves a substantial risk of the use of force. Those terms require the courts to make a categorical judgment whether a offense is a "crime of violence," and they show that the Guideline does not contemplate the type of case-specific inquiry petitioner seeks. 2. In any event, the question that petitioner would have this Court answer is of only historical interest because, after petitioner was sentenced, the Sentencing Commission revised the text of the career offender Guideline as well as its accompanying commentary effective November 1, 1989. As a result of that amendment, Sentencing Guidelines Section 4B1.2(1) no longer incorporates the definition of "crime of violence" in 18 U.S.C. 16. Instead, Guidelines Section 4B1.2(1) now provides: (1) The term "crime of violence" means any offense under federal or state law punishable by imprisonment for a term exceeding one year that -- (i) has as an element the use, attempte use, or threatened use of physical force against the person of another, or (ii) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. That definition is nearly identical to the definition of a "violent felony" in the Armed Career Criminal Act, 18 U.S.C. 924(e)(2)(B). Indeed, in explaining the purpose of the amendment to Guidelines Section 4B1.2(1), the Sentencing Commission stated that "(t)he definition of crime of violence used in this amendment is derived from 18 U.S.C. 924(e)." United States Sentencing Comm'n, Guidelines Manual App. C, at p. C.123 (Nov. 1, 1990). The significance of that amendment lies in the fact that this Court recently held that, in connection with 18 U.S.C. 924(e), "Congress intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions." Taylor v. United States, 110 S. Ct. 2143, 2159 (1990). The same reasoning applies with equal force to Guidelines Sections 4B1.1 and 4B1.2(1). Cf. United States v. Becker, 919 F.2d 568, 570 (9th Cir. 1990) (adopting Taylor's categorical approach with respect to pre-1989 amendment version of Guidelines Section 4B1.2(1)). It therefore follows that a district court is required under the current definition of "crime of violence" to look only to the statutory definition of the offense, and not to the underlying facts, when applying Guidelines Section 4B1.1 and 4B1.2(1) to determine whether a defendant is a "career offender." 3. There is also no conflict among the circuits on the question presented by this case. Like the Eleventh Circuit in this case, the Seventh and Eighth Circuits have ruled that the offense of sending a threatening communication through the mails is a "crime of violence" for purposes of Sentencing Guidelines Section 4B1.1. United States v. Left Hand Bull, 901 F.2d at 649 (18 U.S.C. 876); United States v. Poff, No. 89-3017 (7th Cir. Feb. 14, 1991) (en banc), slip op. 2-5 (18 U.S.C. 871); United States v. McCaleb, 908 F.2d at 178 (same). No court of appeals has ruled to the contrary. Petitioner implicitly concedes as much. He does not claim that there is a conflict between the decision below and that of another circuit court over the correct treatment of the offense of sending a threatening communication through the mails for purposes of Sentencing Guidelines Section 4B1.1. Instead, he argues that there is some disagreement among the circuits over the correct means of analyzing the question whether a particular crime is a "crime of violence" under Guidelines Section 4B1.1. Further review of petitioner's claim is not warranted, however, given the amendment to Guidelines Section 4B1.2(1) and its commentary. Indeed, all of the cases petitioner cites were based on the definition of a "crime of violence" in Section 4B1.2(1) before that Guideline and its commentary were amended. Under the pre-1989 amendment version of Section 4B1.2(1), the courts of appeals generally concluded that a sentencing court was to look only to the statutory definition of an offense or a predicate felony -- and not to the underlying facts -- in determining whether the offense was a "crime of violence." See United States v. Thompson, 891 F.2d 507, 508-511 (4th Cir. 1989), cert. denied, 110 S. Ct. 1957 (1990); United States v. Cruz, 882 F.2d 922, 923 (5th Cir. 1989); United States v. Flores, 875 F.2d 1110, 1113 (5th Cir. 1989); United States v. Carter, 910 F.2d 1524, 1531-1533 (7th Cir. 1990), cert. denied, No. 90-6907 (Apr. 22, 1991); /6/ United States v. McDougherty, 920 F.2d at 572-574; United States v. Selfa, 918 F.2d 749, 751-752 (9th Cir.), cert. denied, 111 S. Ct. 521 (1990); United States v. O'Neal, 910 F.2d 663, 666-667 (9th Cir. 1990); United States v. Gonzalez-Lopez, 911 F.2d 542, 546-548 (11th Cir. 1990); United States v. Davis, 881 F.2d 973, 975-976 (11th Cir. 1989), cert. denied, 110 S. Ct. 735 (1990). Contrary to petitioner's contention, those decisions do not squarely conflict with other decisions of the courts of appeals. In United States v. Baskin, 886 F.2d 383 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 1831 (1990), the court appeared to agree that whether a prior conviction involved a "crime of violence" was determined by looking to the statutory definition of the offense. Id. at 389 ("Thus, the Illnois statute describes robbery as a crime of violence consistent with the federal guidelines."). The court went on to rule, however, that a sentencing judge retained discretion to depart from the statutory definition of a crime based on the underlying facts of the particular crime. Id. at 389-390. /7/ That issue, however, is not presented in this case, because the district court did not depart downward from the Guidelines range. Cf. United States v. Carter, 910 F.2d at 1533 n.6. Four other decisions on which petitioner relies all involved the question whether a defendant's unlawful possession of a firearm constituted a "crime of violence" under Sentencing Guidelines Section 4B1.2(1). In those cases, the courts of appeals concluded that a sentencing court was entitled to look at the facts underlying the manner in which the firearm was used in determining whether the offense was a "crime of violence." But in reaching that conclusion the courts of appeals relied on Application Note No. 1 in the commentary to Guidelines Section 4B1.2, which stated that "(o)ther offenses are covered only if the conduct for which the defendant was specifically convicted meets the above definition (in 18 U.S.C. 16)." See United States v. Alvarez, 914 F.2d 915, 917-919 (7th Cir. 1990); United States v. Goodman, 914 F.2d 696, 698-699 (5th Cir. 1990); United States v. McNeal, 900 F.2d 119, 122-123 (7th Cir. 1990) United States v. Williams, 892 F.2d 296, 303-304 (3d Cir. 1989), cert. denied, 110 S. Ct. 3221 (1990). /8/ The Sentencing Commission deleted and replaced Application Note No. 1, however, when the Commission amended the text of Guidelines Section 4B1.2(1) as well as its commentary effective November 1, 1989. United States Sentencing Comm'n, Guidelines Manual App. C, at p. C.123 (Nov. 1, 1990). /9/ It is thus doubtful that those decisions retain any validity after the 1989 amendments to Section 4B1.2 and its commentary. Since the new version of Guidelines Section 4B1.1 was modeled on 18 U.S.C. 924(e), this Court's decision in Taylor should supply the correct analysis for the courts to follow. Accordingly, further review is unwarranted in this case. /10/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General JOSEPH C. WYDERKO Attorney MAY 1991 /1/ Petitioner was convicted on eight counts of violating 18 U.S.C. 876, Counts 1-4, 7, 10-12. Petitioner was sentenced under the Guidelines on Counts 10, 11, and 12, and he received three consecutive terms of 60 months' imprisonment. On Counts 1, 2, 3, 4, and 7, petitioner was sentenced to five years' imprisonment, with each sentence being consecutive to each other sentence and to the sentences imposed on Counts 10, 11, and 12. See Judgment and Commitment Order (June 14, 1989); Gov't C.A. Br. 2. /2/ The maximum term of imprisonment for mailing a threatening letter in violation of 18 U.S.C. 876 is five years' (or 60 months') imprisonment. /3/ As explained below, after petitioner was sentenced the Sentencing Commission amended the definition in Section 4B1.2(1) of the term "crime of violence." The new definition took effect on November 1, 1989, and is not applicable to petitioner. /4/ In part, 18 U.S.C. 876 provides: Whoever knowingly (deposits in any post office or authorized depository for mail matter, to be sent or delivered by the Postal Service, or knowingly causes to be delivered by the Postal Service according to the direction thereon), any communication with or without a name or designating mark subscribed thereto, addressed to any other person and containing any threat to kidnap any person or any threat to injure the person of the addressee or of another, shall be fined not more than $1,000 or imprisoned not more than five years, or both. /5/ Petitioner does not dispute that he satisfied the other two requirements for the application of Section 4B1.1: namely, that he was at least 18 years old when he committed the offenses and that he had at least two prior felony convictions for crimes of violence. /6/ The petition for a writ of certiorari in United States v. Carter, supra, which this Court recently denied, raised the same issue that petitioner presents in this case. /7/ The Eleventh Circuit has rejected only that aspect of the Baskin decision. See United States v. Gonzalez-Lopez, 911 F.2d at 550-551. /8/ Former Application Note No. 1 in the commentary to Sentencing Guidelines Section 4B1.2 provided as follows: "Crime of violence" is defined in 18 U.S.C. Section 16 to mean an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or any other offense that is a felony and that by its nature involves a substantial risk that physical force against the person or property of another may be used in committing the offense. The Commission interprets this as follows: murder, manslaughter, kidnapping, aggravated assault, extortionate extension of credit, forcible sex offenses, arson, or robbery are covered by this provision. Other offenses are covered only if the conduct for which the defendant was specifically convicted meets the above definition. For example, conviction for an escape accomplished by force or threat of force would covered; conviction for an escape by stealth would not be covered. Conviction for burglary of a dwelling would be covered; conviction for burglary of other structures would not be covered. /9/ Application Note No. 2 in the commentary to Sentencing Guidelines Section 4B1.2 now provides: "Crime of violence' includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included where (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth in the count of which the defendant was convicted involved use of explosives or, by its nature, presented a serious potential risk of physical injury to another. /10/ United States v. Talbot, 902 F.2d 1129 (4th Cir. 1990), did not address the issue presented here. In that case, the court merely concluded that the defendant had been improperly sentenced as a "career offender" under Section 4B1.1 because it was conceded that his prior burglary convictions involved commercial, rather than private, dwellings. Because former Application Note No. 1 in the commentary stated that convictions for burglary of a structure other than a dwelling were not covered by the definition of a "crime of violence," the court felt "constrained to follow the Guideline Commission's view * * *." 902 F.2d at 1133. The decision below also does not conflict with United States v. Terry, 900 F.2d 1039, 1041-1043 (7th Cir. 1990). Terry stated that a district court can, but need not, consider the facts of the underlying offense. Petitioner also cites four unpublished opinions. See United States v. Davis, 918 F.2d 174 (4th Cir. 1990) (Table); United States v. Wesley, 895 F.2d 1415 (6th Cir. 1990) (Table); United States v. Foreman, 894 F.2d 1337 (6th Cir. 1990) (Table); United States v. Holmes, 879 F.2d 863 (4th Cir. 1989) (Table). Because those decisions are unpublished, however, they lack precedenital value in those courts absent extraordinary circumstances. See 4th Cir. R. 18(d); 6th Cir. R. 24(b).