_____________
No. 96-1826WM
_____________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Jerry R. Poe, *
*
Appellant. *
_____________
Submitted: September 9, 1996
Filed: September 19, 1996
_____________
Before FAGG, HEANEY, and BEAM, Circuit Judges.
_____________
FAGG, Circuit Judge.
Jerry R. Poe mailed two threatening letters from his jail cell in a
Missouri state prison. In his first letter, Poe threatened to assault a
local prosecutor's twelve-year-old daughter, and in his second letter, Poe
stated several prison officials would be "shot and crip[p]led." Based on
the two letters, the Government charged Poe with two counts of mailing
threatening communications in violation of 18 U.S.C. § 876 (1994).
Following jury convictions on both counts, the district court granted the
Government's request for an upward departure from the sentencing guidelines
and sentenced Poe to the statutory maximum penalty of five years on each
count. See id.; U.S.S.G. § 4A1.3 (1994). Poe appeals his convictions and
sentence, and we affirm.
On appeal, Poe admits writing and mailing both letters, but contends
the district court should have granted his motion for judgment of acquittal
because his letters were ambiguous and
nonthreatening. After reviewing the evidence in the light most favorable
to the Government, see United States v. Whitfield, 31 F.3d 747, 749 (8th
Cir. 1994), we disagree. Poe's letter to the local prosecutor made vulgar
sexual remarks about the prosecutor and the sexual anatomy of the
prosecutor's young daughter, pointed out Poe would be released from prison
soon, and stated the prosecutor would "pay" for mistreating Poe. The
letter concluded by referring to the prosecutor's upcoming move to the East
Coast, and asked, "Can you please send me your daughter's address?" The
prosecutor testified he was upset by Poe's letter because he believed Poe
was threatening to harm his daughter. We agree with the prosecutor's
assessment. "Under the totality of the circumstances, a reasonable jury
could conclude beyond a reasonable doubt that the letter contained a threat
to [the prosecutor's daughter]." United States v. Manning, 923 F.2d 83,
85 (8th Cir.), cert. denied, 501 U.S. 1234 (1991). Likewise, a reasonable
jury could conclude that Poe's second letter contained a threat to wound
the various prison officials. Id. Poe's current claim that he did not
really intend to shoot the prison officials is simply irrelevant. See id.
at 86; Whitfield, 31 F.3d at 749. Thus, we conclude the district court
properly denied Poe's motion.
As for Poe's sentence, the sentencing guidelines authorize an upward
departure "[i]f reliable information indicates that the [defendant's]
criminal history category does not adequately reflect the seriousness of
the defendant's past criminal conduct or the likelihood that the defendant
will commit other crimes." U.S.S.G. § 4A1.3. In arriving at Poe's
sentence, the district court was concerned with Poe's "pattern of
continually criminal behavior." As the presentence report makes clear,
Poe's criminal history category does not include Poe's more recent
threatening letters to the probation office, the Missouri Supreme Court,
and the Governor of Missouri. See United States v. Sweet, 985 F.2d 443,
445-46 (8th Cir. 1993) (upward departure was appropriate because defendant
continued to mail threatening letters after conviction but before
-2-
sentencing). Also, Poe does not deny telling his probation officer that
he plans to send more threatening letters to the victims in this case. See
United States v. Cook, 972 F.2d 218, 221-22 (8th Cir. 1992), cert. denied,
506 U.S. 1058 (1993). We review the district court's decision to depart
from the sentencing guidelines for an abuse of discretion, see Koon v.
United States, 116 S. Ct. 2035, 2047-48 (1996), and the decision "will in
most cases be due substantial deference," id. at 2046. Having carefully
reviewed the record, we conclude the district court did not abuse its
discretion by granting the Government's request for an upward departure
under § 4A1.3. Cook, 972 F.2d at 222 (the district court may make an
upward departure where there is evidence of obvious, unrepentant
incorrigibility).
We thus affirm Poe's convictions and sentence.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3-