CAROLYN KAY POFF, PETITIONER V. UNITED STATES OF AMERICA No. 90-7847 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 Seventh Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. 2-9) is reported at 926 F.2d 588. The opinion of the district court (Pet. App. 14-27) is reported at 723 F. Supp. 79. JURISDICTION The judgment of the en banc court of appeals was entered on February 14, 1991. The petition for a writ of certiorari was filed on April 29, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the offense of threatening the President, in violation of 18 U.S.C. 871, which qualifies as a "crime of violence" under the career offender provisions of Sentencing Guidelines Sections 4B1.1 and 4B1.2, may also qualify as a "non-violent offense" grounding a downward departure under Sentencing Guideline Section 5K2.13, Policy Statement. STATEMENT After a jury trial in the United States District Court for the Northern District of Indiana, petitioner was convicted on six counts of threatening the President, in violation of 18 U.S.C. 871. She was sentenced to a total term of 51 months' imprisonment, to be followed by a three-year term of supervised release. The court of appeals affirmed. Pet. App. 2-9. 1. The evidence at trial showed that in 1988 petitioner wrote a series of letters threatening the life of President Reagan. Pet. App. 3, 14. Petitioner had a lengthy history of treatment for mental illness. After the trial, on petitioner's motion, the district court therefore ordered that she be given a psychiatric evaluation under 18 U.S.C. 4244 and 4247. The doctors' report stated "that while (petitioner) suffers from recurrent major depression, she is not in need of custody for care and treatment." Pet. App. 14. The Presentence Report prepared by the probation officer listed petitioner's four previous felony convictions: a 1970 state conviction for making a bomb threat, a 1973 state conviction for the same offense, a 1976 state conviction for arson, and a 1978 federal conviction for making threatening communications. Pet. App. 15-17; Gov't C.A. Br. 7. /1/ In view of the applicable career offender provisions of Sentencing Guidelines Sections 4B1.1 and 4B1.2, /2/ and petitioner's criminal record, the probation officer recommended that petitioner should be classified as a career offender (offense level 17, criminal history Category VI) and sentenced within the Guidelines range of 51 to 63 months' imprisonment. At sentencing, the government agreed with the probation officer's recommendation that petitioner be sentenced as a career offender. Pet. App. 17-18. Petitioner, on the other hand, argued that "a 'crime of violence' must involve more than bizarre threats that were never intended to be carried out" (Pet. App. 20-21) -- her description of the instant offense of conviction and the two eligible prior offenses. See note 1, supra. In the alternative, petitioner urged the court to grant a downward departure under Sentencing Guideline Section 5K2.13, Policy Statement, which provides (emphasis added): If the defendant committed a non-violent offense while suffering from significantly reduced mental capacity not resulting from voluntary use of drugs or other intoxicants, a lower sentence may be warranted to reflect the extent to which reduced mental capacity contributed to the commission of the offense, provided that the defendant's criminal history does not indicate a need for incarceration to protect the public. Pet. App. 21. 2. The district court rejected petitioner's submission and sentenced her as a career offender under Sentencing Guidelines Sections 4B1.1 and 4B1.2. Pet. App. 14-27. Nonetheless, "(b)ecause (petitioner) apparently had no intention of carrying out the threats she made to the President (and, indeed, apparently had no intention of carrying out the threats she made in the cases that make her a career offender)," the court "impose(d) a sentence at the low end of the guideline range, or fifty-one months." Id. at 25. The court first determined that Sentencing Guidelines Sections 4B1.1 and 4B1.2, by incorporating the definition set forth in 18 U.S.C. 16, "directs the inquiry to the elements of the crime." Pet. App. 19. Turning to petitioner's pertinent criminal record, the court pointed out that "(e)ach of the relevant statutes(, i.e., 18 U.S.C. 871(a), 876; Ind. Code Section 35-30-9-2,) requires the threatened use of physical force against another's person or property." Pet. App. 19; see note 1, supra. The court therefore concluded that "(e)ach of (petitioner's) pertinent crimes of conviction had 'as an element the . . . threatened use of physical force against the person or property of another.'" Pet. App. 20 (quoting 18 U.S.C. 16(a)). In so holding, the court rejected petitioner's contention that her predicate offenses were not crimes of violence since they did not involve any actual physical injury. "Rightly or wrongly," the court stated, "Congress included offenses that require the threatened use of force." Pet. App. 21. The court next refused to depart downward from the career offender Guidelines range under Sentencing Guideline Section 5K2.13, Policy Statement. It acknowledged that petitioner "clearly is a woman with substantial medical difficulties." Pet. App. 22. /3/ The court concluded, however, that departure would be improper under Section 5K2.13 because that policy statement is inapplicable by its own terms. Section 5K2.13 speaks of "a non-violent offense." As discussed above, the offense of threatening the life of the President is a crime of violence within the meaning of the Sentencing Guidelines; it does not appear that the Sentencing Commission intended "non-violent" offenses within the meaning of Section 5K2.13 to encompass crimes "of violence" within the meaning of Sections 4B1.1 and 4B1.2. Pet. App. 22-23. /4/ 3. The en banc court of appeals affirmed. Pet. App. 1-9. In the court of appeals, petitioner contended that the career offender provisions of the Guidelines "did not apply to her since all concede that she never intended to carry out her threats." Id. at 3. The court rejected that argument, explaining that the Guidelines do not condition application of the enhancement on whether the defendant intended to make good on the threat. Threats are themselves a form of violence that "may be costly and dangerous to society in a variety of ways, even when their authors have no intention of carrying them out." Ibid. (quoting Rogers v. United States, 422 U.S. 35, 46-47 (1975) (Marshall, J., concurring)). The court therefore held that Sentencing Guideline Section 4B1.2 "defines (petitioner's) crime as one 'of violence.'" Pet. App. 4. /5/ For similar reasons, the court of appeals upheld the trial court's refusal to depart downward from the career offender Guidelines range by treating petitioner's offense of conviction as "non-violent" under Sentencing Guideline Section 5K2.13, Policy Statement. As the court explained: We think it likely that had the Commission desired to distinguish among types of violence, it would have expanded its vocabulary. At a minimum, it would have offered a technical definition for each term. Perhaps a cross-reference between the two sections would have eliminated any possibility of confusion, but hindsight is a demanding critic. It is hardly surprising that the Commission failed to foresee the argument that a crime of violence can, under the same sentencing scheme, also be a non-violent offense. Pet. App. 5. The court also pointed out that a career offender such as petitioner cannot meet Section 5K2.13's additional requirement that "the defendant's criminal history does not indicate a need for incarceration to protect the public." Pet. App. 5. Judge Easterbrook, joined by four judges, dissented. Pet. App. 6-9. He agreed that "(t)hreatening public officials is a 'crime of violence' for purposes of the career offender guideline." Id. at 7. Nonetheless, he pointed out that "(a) 'non-violent offense' in ordinary legal (and lay) understanding is one in which mayhem did not occur." Ibid. In Judge Easterbrook's view, the reasons behind Section 5K2.13 combine with the presumption that different terms in a carefully drafted code such as the guidelines connote different things to lead (him) to conclude that "non-violent offense" refers to crime that in the event did not entail violence. Pet. App. 8-9. Accordingly, "(w)hether to use the power under Section 5K2.13 is the judge's decision. (The court) ought to say that he possesses the discretion to decide." Pet. App. 9. ARGUMENT Petitioner contends (Pet. 5-7) that the offense of threatening the President, in violation of 18 U.S.C. 871, which qualifies as a "crime of violence" under the career offender provisions of Sentencing Guidelines Sections 4B1.1 and 4B1.2, may also qualify as a "non-violent offense" grounding a downward departure under Sentencing Guideline Section 5K2.13, Policy Statement. The Sentencing Commission used the root word "violence" in both Section 4B1.2 ("crime of violence") and Section 5K2.13 ("non-violent offense"). As the court of appeals noted, a "'rather heavy load rests on him who would give different meanings to the same word or the same phrase when used a plurality of times in the same Act . . . .'" Pet. App. 4 (quoting United States v. Montgomery Ward & Co., 150 F.2d 369, 377 (7th Cir.), cert. denied, 324 U.S. 858 (1945)). At the very least, the Commission would have provided some indication that the words "violence" and "non-violent" were not mutually exclusive had that been its intent. For these reasons, every court of appeals to consider petitioner's claim has rejected it. See United States v. Sanchez, No. 90-10214 (9th Cir. May 15, 1991), slip op. 6185-6186; United States v. Russell, 917 F.2d 512, 517 (11th Cir. 1990), cert. denied, 111 S. Ct. 1427 (1991); United States v. Borrayo, 898 F.2d 91, 94 (9th Cir. 1989); United States v. Rosen, 896 F.2d 789, 791 (3d Cir. 1990); United States v. Maddalena, 893 F.2d 815, 819 (6th Cir. 1989). /6/ Under the circumstances, further review of petitioner's claim is unwarranted. See Braxton v. United States, No. 90-5358 (May 28, 1991), slip op. 4. 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 ANDREW LEVCHUK Attorney JUNE 1991 /1/ In 1973, petitioner had been convicted in Indiana state court of making a telephonic threat of an explosion, in violation of Ind. Code Section 35-30-9-2 (repealed 1977). That offense made criminally liable any person who telephones another person and threatens to create an explosion, or falsely informs that some other person threatens or intends to create an explosion, in any private or public building * * *. In 1978, petitioner had been convicted in federal court of making threatening communications, in violation of 18 U.S.C. 876. That offense made criminally liable any person who knowingly deposits in any post office or authorized depository for mail matter * * * any communication with or without a name or designating mark subscribed thereto, addressed to any other person and containing any threat to injure the person or the address or another * * *. Petitioner's 1970 and 1976 convictions fell outside the time periods established by the Sentencing Guidelines, and thus could not be considered in calculating petitioner's criminal history category or career offender status. See Sentencing Guidelines Sections 4A1.2(e), 4B1.2, Application Note 4; Pet. App. 15-16, 19. /2/ The pre-1990 version of the career offender provisions of Sentencing Guidelines Sections 4B1.1 and 4B1.2 (1988), provided in pertinent part: Section 4B1.1. Career Offender A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. * * * Section 4B1.2. Definitions (1) The term "crime of violence" as used in this provision is defined under 18 U.S.C. Section 16. * * * * * Title 18, United States Code, Section 16, defined the term "crime of violence" to include (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. The current version of the career offender provision of Sentencing Guideline Section 4B1.1 (1990) is identical to its predecessor. The Sentencing Commission, however, has since amended the definitional provision of Sentencing Guideline Section 4B1.2(1). Effective November 1, 1989, this Guideline provides that (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, attempted 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. Sentencing Guideline Section 4B1.2(1) (1990). /3/ The court did point out that "(t)hose difficulties have not been disabling; (petitioner) has managed to come within a few hours of a college degree in criminology, largely with high grades." Pet. App. 22. /4/ The court added that petitioner's "long history of criminal activity similar to that for which she was convicted strongly suggests that incarceration may be necessary to protect the public." Pet. App. 23. But the court gave "little weight" to that consideration, noting that petitioner "can write threatening letters, if inclined to do so, from within prison as well as from without." Ibid. /5/ Petitioner has not sought further review of that issue. /6/ Moreover, a career offender such as petitioner fails by definition to meet Section 5K2.13's requirement that "the defendant's criminal history does not indicate a need for incarceration to protect the public."