UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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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
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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.
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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.
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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
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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
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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.
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IV.
In sum, for the foregoing reasons, Godsey’s sentence is
affirmed.
AFFIRMED
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