In U.S. v. Scott, No. 05-12511 (March 10, 2006), the Court affirmed in part and reversed in part a sentence imposed on a defendant convicted of threatening a federal official in violation of 18 U.S.C. § 115(a)(1)(B).
The Court rejected Scott’s argument that his sentence should not have enhanced pursuant to USSG § 2A6.1(b)(2), for making more than one threat, because he sent out only two threatening mailings. The Court pointed out that the second mailing contained at least two distinct threats in two letters in two envelopes. Since the Guideline counts multiple threats, not just multiple mailings, Scott qualified for the § 2A6.1(b)(2) enhancement.
The Court, however, agreed with Scott that post-arrest statements he made to the FBI could not support a § 2A6.1(b)(1) six-level enhancement for having an intent to carry out the threat. The statements were not made, as the Guideline provides, "before or during" the criminal offense, but were merely ambiguous responses to questions while in custody.
The Court noted that, post-Booker, it need not reverse a sentence, even one involving a Guideline miscalculation, if the district court would have imposed the same sentence anyway. Here, even though the district court stated that it believed that Scott deserved the maximum sentence, the Court could not say that Scott would have received the same "severe sentence." The Court therefore vacated the sentence and remanded for resentencing.
