PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 08-4700
DWIGHT L. ARMEL, a/k/a Dwight
Loring Armel,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(3:07-cr-00292-RLW-1)
Argued: September 24, 2009
Decided: October 19, 2009
Before MOTZ and GREGORY, Circuit Judges,
and Damon J. KEITH, Senior Circuit Judge of the United
States Court of Appeals for the Sixth Circuit,
sitting by designation.
Affirmed in part and vacated and remanded in part by pub-
lished opinion. Judge Motz wrote the opinion, in which Judge
Gregory and Senior Judge Keith joined.
2 UNITED STATES v. ARMEL
COUNSEL
ARGUED: Mary Elizabeth Maguire, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Richmond, Virginia, for
Appellant. Stephen David Schiller, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Pub-
lic Defender, Alexandria, Virginia, for Appellant. Dana J.
Boente, Acting United States Attorney, Alexandria, Virginia,
for Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
After a bench trial, the district court found Dwight L.
Armel guilty of threatening federal officials, sentenced him to
thirty months in prison, and imposed a three-year term of
supervised release with several unusual special conditions. On
appeal, Armel challenges his conviction and several of the
special conditions.1 We affirm the conviction but vacate the
special conditions and remand for resentencing.
I.
On the morning of July 18, 2007, Armel made three phone
calls to the FBI’s resident agency office in Fredericksburg,
Virginia. The office’s secretary answered the first call, during
which Armel claimed that the FBI previously tried to kill him
and now owed him money. The secretary requested that
Armel hold for a call transfer; when he refused to do so, she
hung up the phone. Minutes later, Armel called again and left
a message complaining that "that bitch just hung up on" him
1
Because the Bureau of Prisons released Armel from prison during the
pendency of this appeal, he concedes that any challenge to his term of
imprisonment is now moot.
UNITED STATES v. ARMEL 3
and warning that the secretary had "no business" hanging up
on him or working for the FBI. He stated that he was in Fred-
ericksburg and threatened, "[I]f you don’t pay me within three
days, none of you, male or female, are gonna be able to have
sex again. . . . [Y]ou’re gonna lose you’re [sic] genitalia."
Armel asserted that "God promised me that he would curse
you." He went on: "You come and try to pull on me . . . [y]ou
will die. Not by my hand, by the hand of God. Or maybe by
my hand, but it will be self-defense. . . . Pay Me My Wages
. . . Or Else!" Armel warned the agents to "[g]et it straight or
fucking die!"
The next day, after discovering that Armel had a history of
harassment and threats, the FBI coordinated with local offi-
cials and arrested him. Armel acknowledged that he under-
stood the reason for his arrest and eventually apologized. A
grand jury indicted Armel pursuant to 18 U.S.C.
§ 115(a)(1)(B) (2006), which prohibits
threat[s] to assault, kidnap, or murder, a . . . Federal
law enforcement officer . . . with intent to impede,
intimidate, or interfere with such . . . law enforce-
ment officer while engaged in the performance of
official duties, or with intent to retaliate against such
. . . law enforcement officer on account of the perfor-
mance of official duties.
After a short bench trial, the district court found Armel guilty,
concluding that "the tone and content of the taped threatening
communication establishes that threats were made."
The district court sentenced Armel to a substantially above-
guideline prison term. The court also imposed three years of
supervised release, including what the court characterized as
"very rigid" special conditions. In addition to the directive
that Armel receive psychiatric treatment—which he does not
challenge—the district court also ordered that Armel not pos-
sess pornography, not enter places where pornography could
4 UNITED STATES v. ARMEL
be obtained, not have contact with children, and submit to
invasive sex offender tests.
The district court offered this explanation of the sentence:
[T]he sentence imposed is fair and reasonable,
although not within the advisory guideline range,
which in the exercise of judicial discretion was
found not to be consistent with the requirements of
title 18 USC 3553(a). Specifically, The Court is
imposing the sentence pursuant to title 18 [U.S.C.
§ 3553(a)(2)(C), (D)] based on the characteristics of
the defendant, the need to protect the public from
further crimes, and especially to provide the defen-
dant with needed medical and psychiatric care.
The court added that its sentencing decisions aimed to "throw
[Armel] a life raft and . . . salvage [him]."
II.
Armel initially challenges his conviction on sufficiency
grounds. "In assessing the sufficiency of the evidence pre-
sented in a bench trial, we must uphold a guilty verdict if, tak-
ing the view most favorable to the Government, there is sub-
stantial evidence to support the verdict." Elliott v. United
States, 332 F.3d 753, 760-61 (4th Cir. 2003). "Substantial evi-
dence" means "evidence that a reasonable finder of fact could
accept as adequate and sufficient to support a conclusion of
a defendant’s guilt beyond a reasonable doubt." United States
v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).
Armel offers two arguments in support of his sufficiency
contention. First, he maintains that his statements did not con-
stitute a "true threat."2 This argument fails. Statements consti-
2
In interpreting a statute similar to § 115, the Supreme Court has con-
cluded that, in order to qualify as constitutionally unprotected criminal
UNITED STATES v. ARMEL 5
tute a "true threat" if "an ordinary reasonable recipient who is
familiar with the[ir] context . . . would interpret [those state-
ments] as a threat of injury." United States v. Roberts, 915
F.2d 889, 891 (4th Cir. 1990) (internal quotation marks omit-
ted) (quoting United States v. Maisonet, 484 F.2d 1356, 1358
(4th Cir. 1973)). Armel argues that "his statements were ridic-
ulous, inherently unthreatening, and conditional," but a defen-
dant’s inability to carry out specific threats does not render
them unthreatening or harmless. See Roberts, 915 F.2d at 890;
Doe v. Pulaski County Special Sch. Dist., 306 F.3d 616, 624
(8th Cir. 2002) ("In determining whether a statement amounts
to an unprotected threat, there is no requirement that . . . the
speaker was capable of carrying out the purported threat of
violence."). An ordinary listener certainly could conclude—as
the trial court did—that the statements, which threatened loss
of genitalia and death, and indicated Armel’s presence in
Fredericksburg, were a genuine threat of injury. See Roberts,
915 F.2d at 891 (noting that finders of fact, in that case jurors,
"certainly consist of the requisite reasonable people" in the
true threat analysis). Viewing the evidence in the light most
favorable to the Government, the fact that Armel invoked God
and made statements that some might consider outrageous
does not compel a contrary result.
Alternatively, Armel contends that we must vacate his con-
viction because § 115 does not criminalize general threats
against law enforcement officers. That argument also fails.
Although Armel did not name potential victims, he did direct
his threats to specific persons, namely the FBI agents and sup-
port staff at the relatively small Fredericksburg office. The
Supreme Court has explained that "[t]rue threats encompass
speech, a threatening statement must amount to a "true threat" rather than
mere political hyperbole or idle chatter. Watts v. United States, 394 U.S.
705, 708 (1969) (per curiam). This court and others have similarly read
such a requirement into § 115. See, e.g., United States v. Roberts, 915 F.2d
889, 890-91 (4th Cir. 1990); United States v. Martin, 163 F.3d 1212, 1216
(10th Cir. 1998).
6 UNITED STATES v. ARMEL
those statements . . . [directed at] a particular individual or
group of individuals." Virginia v. Black, 538 U.S. 343, 359
(2003) (emphasis added) (internal quotation marks omitted).
We refuse to add a "particularized victim" element to § 115
when Congress has not done so, and when doing so would
result in holding harmless a defendant who threatens to maim
or kill several law enforcement officers rather than just one.3
For these reasons, sufficient evidence supports Armel’s
conviction.
III.
Armel also challenges certain special conditions the district
court imposed in connection with his three-year term of
supervised release—prohibitions against possession of
pornography, entry into establishments where pornography is
available, and contact with children; as well as directions that
he undergo invasive sex-offender tests.
"District courts have broad latitude to impose conditions on
supervised release," and so we review such conditions only
for abuse of discretion. United States v. Dotson, 324 F.3d 256,
259, 260 (4th Cir. 2003). The sentencing court may impose
any condition "reasonably related" to the factors referred to in
18 U.S.C. § 3583(d)(1), which include "the nature and cir-
cumstances of the offense and the history and characteristics
of the defendant," id. § 3553(a)(1); "protect[ing] the public
from further crimes," id. § 3553(a)(2)(C); and "provid[ing]
the defendant with needed . . . medical care[ ] or other correc-
tional treatment," id. § 3553(a)(2)(D). But special conditions
3
Of course, we do not hold that the number of purported victims is irrel-
evant in interpreting § 115. The number of victims threatened may indeed
be relevant in determining whether a reasonable person would interpret the
communication as a real threat of injury. But, when a reasonable listener
would interpret the communication as a threat, we decline to read into the
statute an additional requirement that the threat be made against a specific
official rather than a group of officials.
UNITED STATES v. ARMEL 7
must "involve[ ] no greater deprivation of liberty than is rea-
sonably necessary" to achieve the goals enumerated in
§ 3553(a). 18 U.S.C. § 3583(d)(2). "Although the discretion
thus conferred is broad," an appellate court "will carefully
scrutinize unusual and severe conditions." United States v.
Sofsky, 287 F.3d 122, 126 (2d Cir. 2002) (internal quotation
marks omitted).
"The [district] court, at the time of sentencing, shall state
in open court the reasons for its imposition of the particular
sentence . . . ." 18 U.S.C. § 3553(c). Accordingly, the court
must explain the rationale for the special conditions it
imposes. See United States v. Warren, 186 F.3d 358, 366 (3d
Cir. 1999) ("[C]ourts of appeals have consistently required
district courts to set forth factual findings to justify special . . .
conditions."); United States v. Kingsley, 241 F.3d 828, 836
(6th Cir. 2001).
While the district court in this case accurately described the
special conditions as "very rigid," it offered no explanation as
to their necessity in Armel’s case.4 See 18 U.S.C. § 3553(c).
Accordingly, we have no basis for determining whether they
are reasonably related to the factors referred to in 18 U.S.C.
§ 3583(d)(1) and "involve[ ] no greater deprivation of liberty
than is reasonably necessary." 18 U.S.C. § 3583(d)(2). See
Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 597 (2007)
(noting that a key purpose of the explanation requirement is
to "allow for meaningful appellate review"); United States v.
Carter, 564 F.3d 325, 328 (4th Cir. 2009).
Imposition of the pornography prohibitions seems particu-
larly inexplicable. Our sister circuits have vacated such condi-
tions even in cases involving conviction for a sex offense. See
United States v. Perazza-Mercado, 553 F.3d 65, 76 (1st Cir.
4
We note that the Government did not request imposition of any of the
challenged special conditions and did not defend the pornography condi-
tions even on appeal.
8 UNITED STATES v. ARMEL
2009) (vacating a special condition prohibiting the possession
of pornography, imposed on a defendant convicted of sexual
contact with a minor, because the sentencing court failed to
explain the "relationship between the defendant’s possession
and use of adult pornography and the likelihood that he would
engage in sexual misconduct involving young girls"); United
States v. Loy, 191 F.3d 360, 371 (3d Cir. 1999) (remanding
for an explanation of a similar special condition when the
defendant was convicted of knowingly receiving child por-
nography). Surely, given that Armel’s underlying conviction
was not sex-related, our need for an explanation for the spe-
cial conditions is all the more pressing.
"[A]ppellate courts must have sufficient information about
the justifications offered for the sentence imposed in order to
conduct a meaningful review." United States v. Henry, 545
F.3d 367, 386 (6th Cir. 2008). Because the record here does
not contain this essential information, we cannot determine
the reasonableness of the challenged special conditions and
must therefore vacate those conditions and remand for resen-
tencing.
IV.
The district court admirably attempted to render a sentence
that would protect the public and help Armel rehabilitate.
However, the court offered scant explanation for any of the
challenged special conditions and no explanation for the por-
nography conditions. Accordingly, while we affirm Armel’s
conviction, we must vacate the special conditions and remand
for resentencing.
AFFIRMED IN PART AND
VACATED AND REMANDED IN PART