[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 29, 2007
No. 06-16313 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00226-CR-LC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESSIE SCOTT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(August 29, 2007)
Before BLACK, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
For a second time, Jessie Scott appeals his 120-month prison sentence for
threatening a federal official in violation of 18 U.S.C. § 115(a)(1)(B). In a prior
published decision, we vacated a sentence of equal length that the district court
imposed earlier. See United States v. Scott, 441 F.3d 1322, 1329–30 (11th Cir.
2006).
The facts are set forth in great detail in our previous published decision.
See Scott, 441 F.3d at 1324–26. Nevertheless, a brief recitation of the facts
pertinent to this appeal is necessary. On September 14, 2004, while serving his
sentence for carjacking, Scott mailed a threatening letter to Judge Charles R. Butler
of the United States District Court for the Southern District of Alabama, the judge
who had sentenced him following his carjacking conviction. The letter instructed
Judge Butler “to watch [his] back Every Step Of The Way” because “I Will Get
you Killed One Day.” The letter was signed “TIME BOMb.” Scott wrote to Judge
Butler again on September 19, 2004, enclosing a second threatening letter, as well
as an additional envelope. This additional envelope contained a third letter that
included a threat to kidnap Judge Butler’s children, along with a white powder
which was eventually identified as a cleaning substance.
Judge Butler’s staff alerted the Marshals Service. The Federal Bureau of
Investigation interviewed Scott in prison on September 23, 2004. During the
interview Scott acknowledged sending the letters. When asked if he intended to
2
make good on these threats upon release from prison, Scott stated: “There are a lot
of people that I want to do something to, but I have not made up my mind when or
where I will do it.” In response to the agents’ further questioning, Scott just
smiled.
On November 17, 2004, a grand jury handed down a six-count indictment
against Scott. Scott then pleaded guilty to threatening a federal official in violation
of 18 U.S.C. § 115(a)(1)(B) and filed a “factual resume” admitting the elements of
the offense.
After determining the guidelines range and applying the § 3553(a) factors,
the district court imposed a 120-month sentence. Scott appealed and we vacated
the sentence because we concluded that the district court had misinterpreted the
guidelines, calculating a range of 70 to 87 months. See Scott, 441 F.3d at 1325.
We determined that the correct guidelines range was 37 to 46 months. See id. at
1329–30. Because the “step from 46 months to 120 months is significantly greater
than the step from 87 months to 120 months”, we were reluctant to “say that the
court, had it known of the appropriate range, would have sentenced Scott to the
same severe sentence.” Id. at 1330. Accordingly, we vacated the sentence and
remanded for resentencing. Id.
On remand, the district court once again imposed a 120-month sentence,
3
incorporating its application of the § 3553(a) factors from the first sentence
hearing. The court emphasized the severity of Scott’s offense, characterizing it as
“an attack on the judicial system, which is the very glue that holds this civilized
society together.” The district court also cited the “general goals of punishment”
and of deterrence as rationales for the sentence.
On appeal, Scott argues that his sentence is procedurally unreasonable
because: (1) the district court, whose primary justification for the sentence was to
deter others from committing similar crimes, did not cite any authority
demonstrating that his lengthy sentence would have a deterrent effect on others;
(2) the district court on remand failed to meaningfully consider the corrected
guideline range; (3) the district court’s act of resentencing Scott to the same prison
term does not promote respect for the law because it sends the message that a
successful appeal “is a meaningless endeavor”; and (4) the district court failed to
consider Scott’s “traumatic” personal history and compared Scott to non-offenders
rather than to similarly-situated defendants.
Scott also asserts that his sentence is substantively unreasonable because:
(1) the large deviation from the guideline range was not supported by compelling
circumstances as the threats against the judge were largely preposterous and were
the product of his “disturbed mind”; (2) specific deterrence of Scott would be
4
better provided through mental health services; and (3) we have reversed below-
guideline sentences where the variance was similar to the one in this case and
should attempt to have “even-handed standards of reasonableness” for upward and
downward variances.
We review the final sentence imposed by the district court for
reasonableness. United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005).
Our review for reasonableness is deferential. United States v. Thomas, 446 F.3d
1348, 1351 (11th Cir. 2006). Unreasonableness may be procedural, such as occurs
when the procedure the district court used does not meet the requirements found in
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), or it may be
substantive in nature. See United States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th
Cir. 2006). After Booker, a district court, in determining a reasonable sentence,
must consider the correctly calculated advisory guideline range and the factors set
forth in 18 U.S.C. § 3553(a). United States v. Valnor, 451 F.3d 744, 749 (11th Cir.
2006). After correctly calculating the advisory guideline range, the district court
may impose a more severe or lenient sentence, so long as the resulting sentence is
reasonable. Id. at 750.
In reviewing a sentence for reasonableness, we consider the factors outlined
in § 3553(a) and the district court’s reasons for imposing a particular sentence.
5
United States v. Williams, 456 F.3d 1353, 1360–61 (11th Cir. 2006), cert.
dismissed, 127 S. Ct. 3040 (2007). The § 3553(a) factors include: (1) the nature
and circumstances of the offense and the history and characteristics of the
defendant; (2) the need for the sentence (A) to reflect the seriousness of the
offense, to promote respect for the law, and to provide just punishment for the
offense, (B) to afford adequate deterrence to criminal conduct, (C) to protect the
public from further crimes of the defendant, and (D) to provide the defendant with
needed educational or vocational training or medical care; (3) the kinds of
sentences available; (4) the sentencing guidelines range; (5) pertinent policy
statements of the Sentencing Commission; (6) the need to avoid unwarranted
sentencing disparities; (7) and the need to provide restitution to victims. See 18
U.S.C. § 3553(a)(1)-(7). “[T]here is a range of reasonable sentences from which
the district court may choose[,]” and the burden of establishing that the sentence is
unreasonable in light of the record and the § 3553(a) factors lies with the party
challenging the sentence. United States v. Talley, 431 F.3d 784, 788 (11th Cir.
2005).
Here, the sentence imposed by the district court was procedurally
reasonable. At the initial sentence hearing, the district court discussed the §
3553(a) factors at great length, and it incorporated that analysis during the sentence
6
hearing following remand. At the second sentence hearing, the district court also
considered the correct guidelines range of 37 to 46 months, as well as the advisory
nature of the guidelines. Additionally, the court acknowledged Scott’s
disadvantaged and troublesome upbringing, but found that his “violent past
behavior” and inability to begin “the process of disengaging from his previously
learned inappropriate social behavior” weighed in favor of the statutory maximum
sentence. Moreover, the court stated that the sentence was appropriate given the
extremely serious nature of the offense and the need to protect the public from
Scott. Further, the district court noted that the sentence would deter others from
committing similar crimes. The district court was not required, as Scott argues, to
cite authority for the proposition that lengthy sentences deter criminal conduct; it is
enough that deterrence is one of the § 3553(a) factors. See 18 U.S.C. §
3553(a)(2)(B). Finally, the district court observed that Scott should be able to
obtain the substance abuse treatment and mental health care that he requires while
serving his sentence.
The district court’s decision to impose the same sentence on remand does
not, as Scott suggests, send the message that a successful appeal “is a meaningless
endeavor.” At the outset of the second sentence hearing, the district court
acknowledged the correct guidelines range and then proceeded with its discussion
7
of the § 3553(a) factors. Furthermore, we explicitly allowed for the imposition of
the same sentence after remand in our prior published decision in this case. See
Scott, 441 F.3d at 1330 (“In vacating the sentence and remanding for a new
sentence proceeding, we do not mean to imply that the district court on remand
cannot reach the same sentence as it did before, provided that it corrects the one
error identified in this opinion.”). Indeed, we also noted “that if it had wished to
do so the district court could have stated that it would reach the same sentence
regardless of how the disputed [guidelines] issue was decided. A statement like
that would have convinced us the error was harmless.” Id. (citing United States v.
Williams, 431 F.3d 767, 775 (11th Cir. 2005) (Carnes, J., concurring)); see also
United States v. Keene, 470 F.3d 1347, 1348–49 (11th Cir. 2006) (inviting district
courts to indicate that they would reach the same sentence even if a guidelines
calculation were incorrect if the court conducts an appropriate analysis of the §
3553(a) factors and noting such sentences would be upheld if on review, the
sentence is reasonable). Because the district court carefully considered the correct
advisory guideline range and the § 3553(a) factors in reaching its decision, the
sentence is procedurally reasonable.
The 120-month sentence is also substantively reasonable. Scott’s offense
was particularly serious. He threatened to kill a federal judge and suggested that
8
he would employ explosives to accomplish the task. He also threatened to kidnap
the Judge’s children and included a suspicious substance with the threatening
letter. These threats cannot be dismissed as “jailhouse banter” or merely the
inconsequential product of a disturbed mind. They were specific, and when
questioned by federal agents Scott did not disavow the threats. Instead, he gave a
cryptic response to the agents’ questions and smiled at them.
Scott’s argument that future criminal conduct by him would be better
prevented by treatment than incarceration is unpersuasive. It is not an “either or”
proposition. As the district court noted during the sentence hearing, the Bureau of
Prisons should provide treatment options to address his substance abuse problem
and mental health issues. Scott can avail himself of these services during the 120-
month period of incarceration and afterward while on supervised release.
Finally, Scott’s argument that we have reversed as unreasonable the
imposition of below-guidelines sentences with variances smaller than the upward
variance in this case misses the point of individualized sentences. At each sentence
proceeding, the district court must analyze the § 3553(a) factors with regard to a
defendant’s own characteristics and the specific crime involved. Neither Booker
nor any other decision require that we compare the variance in this case to
variances in cases involving different crimes and defendants with different
9
characteristics. The aim of the sentencing guidelines is to produce consistency
across sentences for similar crimes committed by defendants with similar
characteristics. See Booker, 543 U.S. at 254 (observing that “the sentencing
statute’s basic aim [is] ensuring similar sentences for those who have committed
similar crimes in similar ways”). That we have reversed other sentences for
dissimilar crimes committed by dissimilar defendants is of no moment.
AFFIRMED.
10