United States Court of Appeals,
Eleventh Circuit.
Nos. 94-8660, 94-8713.
UNITED STATES of America, Plaintiff-Appellee,
v.
John Wesley BONNER, Defendant-Appellant.
June 13, 1996.
Appeals from the United States District Court for the Northern
District of Georgia. (No. 1:93-cr-461-1), Richard C. Freeman,
Judge.
Before BIRCH, Circuit Judge, and CLARK and WEIS *, Senior Circuit
Judges.
CLARK, Senior Circuit Judge:
In 1989, defendant John Wesley Bonner pled guilty to attempted
bank robbery (No. 1:89-00298-CR-1), and was sentenced to 33 months
imprisonment and 3 years supervised release. Assistant United
States Attorney Janet F. King handled the prosecution. Defendant
was released from prison and began serving his term of supervised
release on May 19, 1992.
From October 9, 1992, until October 25, 1993, defendant made
twenty anonymous, threatening telephone calls to Assistant U.S.
Attorney King from pay telephones in the Atlanta, Georgia area.
During the telephone calls, defendant made the following threats:
"You have caused me a lot of misery and I will cause you some
soon."
"I'm going to get you."
"You've got a old debt to pay."
*
Honorable Joseph F. Weis, Jr., Senior U.S. Circuit Judge
for the Third Circuit, sitting by designation.
"I'm going to destroy you."
"I'm gonna cut you open."
"Your time is about up honey."
"Your existence bothers me."
Defendant made the second of two calls on October 25, 1993,
from a pay phone in view of Federal Bureau of Investigation agents
who were conducting surveillance, and was immediately arrested. He
was indicted on twenty counts of threatening to assault and murder
an Assistant U.S. Attorney in retaliation for her previous
prosecution of him, in violation of 18 U.S.C. § 115(a)(1)(B) (No.
1:93-CR-461-1). A petition for violation of his supervised release
term based on his arrest was filed in his earlier conviction.
Defendant pled guilty to all twenty counts in the indictment.
The district court overruled the defendant's objection that the
threatening calls should be grouped because they were all part of
the same course of conduct, and gave him a five-level adjustment
for multiple counts under U.S.S.G. § 3D1.4. Defendant was
sentenced to 37 months imprisonment, one year supervised release,
and a $1,000 special assessment, and appealed, our case No. 94-
8660.
The district court subsequently revoked his term of supervised
release in the attempted bank robbery conviction. The district
court found that the defendant's threats of "I'm going to cut you
open, I want revenge, it won't be long now" fell within the § 4B1.2
definition of crime of violence and, therefore, within a Grade A
violation as defined by U.S.S.G. § 7B1.1(a). Defendant was
sentenced to 15 months imprisonment consecutive to the term of
imprisonment in the threats conviction. Defendant appealed, our
case No. 94-8713. This court consolidated the two appeals.
DISCUSSION
A. Multiple Count Adjustment
Bonner argues that all the acts or telephone calls were
connected by the common criminal objective of threatening the
victim, and constituted a single offense involving substantially
the same harm to the same victim, although over a period of a year.
He contends that, despite the exclusion from grouping under
U.S.S.G. § 3D1.2(d), the counts could still be grouped under §
3D1.2(b). Bonner maintains that his case is distinguishable from
those where multiple acts of violence occur to the same victim on
different occasions because he did not act on his threats.
If a defendant is convicted of multiple counts, the guidelines
require the sentencing court to group closely related counts.1
"All counts involving substantially the same harm shall be grouped
together in a single Group."2 Multiple counts involve
1
U.S.S.G. § 3D1.1. Procedure for Determining Offense Level
on Multiple Counts.
(a) When a defendant has been convicted of more than
one count, the court shall:
(1) Group the counts resulting in conviction into
distinct Groups of Closely Related Counts
("Groups") by applying the rules specified in §
3D1.2.
(2) Determine the offense level applicable to each
Group by applying the rules specified in § 3D1.3.
(3) Determine the combined offense level
applicable to all Groups taken together by
applying the rules specified in § 3D1.4.
2
U.S.S.G. § 3D1.2.
substantially the same harm when the offense behavior is ongoing or
continuous in nature and the offense guideline is written to cover
such behavior.3 However, all offenses covered under Chapter Two,
Part A are specifically excluded from grouping under § 3D1.2(d). 4
Thus, because the defendant's offense level was computed under §
2A6.1(a), i.e., Chapter Two, Part A, the counts were excluded from
grouping under subsection (d). This, however, does not necessarily
preclude grouping under another subsection.5
Under § 3D1.2(b), counts involve substantially the same harm
"[w]hen counts involve the same victim and two or more acts or
transactions connected by a common criminal objective or
constituting part of a common scheme or plan."6 "[C]ounts that are
part of a single course of conduct with a single criminal objective
and represent essentially one composite harm to the same victim are
3
U.S.S.G. § 3D1.2. Groups of Closely Related Counts.
(d) When the offense level is determined largely on the
basis of the total amount of harm or loss, the
quantity of a substance involved, or some other
measure of aggregate harm, or if the offense
behavior is ongoing or continuous in nature and
the offense guideline is written to cover such
behavior.
Specifically excluded from the operation of this
subsection are:
all offenses in Chapter Two, Part A;
4
Id.
5
U.S.S.G. § 3D1.2(d).
Exclusion of an offense from grouping under this
subsection does not necessarily preclude grouping under
another subsection.
6
U.S.S.G. § 3D1.2(b).
to be grouped together, even if they constitute legally distinct
7
offenses occurring at different times." However, multiple,
separate instances of fear and risk of harm, not one composite
harm, occur when the defendant robs or rapes the same victim on
different occasions and the offenses are not to be grouped
together.8 Also, in an example given in the guidelines, where
"[t]he defendant is convicted of two counts of assault on a federal
officer for shooting at the officer on two separate days[,] the
counts are not to be grouped together."9 The decision on whether
to group several counts involving the same victim is not always
clear cut, and although existing case law may provide some
guidance, courts should look to the underlying policy as stated in
the Guidelines' Introductory Commentary.10 The Introductory
7
U.S.S.G. § 3D1.2, comment. (n. 4).
8
U.S.S.G. § 3D1.2, comment. (n. 4):
... This provision does not authorize the grouping of
offenses that cannot be considered to represent
essentially one composite harm (e.g., robbery of the
same victim on different occasions involves multiple,
separate instances of fear and risk of harm, not one
composite harm).
9
U.S.S.G. § 3D1.2, comment. (n. 3).
10
U.S.S.G. § 3D1.2, comment. (n. 8):
8. A defendant may be convicted of conspiring to commit
several substantive offenses and also of
committing one or more of the substantive
offenses.
Background: Ordinarily the first step in determining
the combined offense level in a case involving multiple
counts is to identify those counts that are
sufficiently related to be placed in the same Group of
Closely Related Counts ("Group").
Even if counts involve a single victim, the
Commentary recognizes that different rules are required for dealing
with multiple-count convictions involving offenses with repetitive
and ongoing behavior and those that are oriented more toward single
episodes of behavior.11 This court reviews a district court's
refusal to group multiple counts of conviction with due deference.12
Other circuits have addressed this issue. In United States v.
Wilson,13 the defendant contacted an ex-girlfriend to hire someone
to kill his wife. The defendant pled guilty to six counts of use
of interstate facilities with the intent that his wife be killed by
making five telephone calls and mailing one letter to his
ex-girlfriend over a two-week period.14 The sentencing court
decision as to whether to group them together may not
always be clear cut.... Existing case law may provide
some guidance as to what constitutes distinct offenses,
but such decisions often turn on the technical language
of the statute and cannot be controlling. In
interpreting this Part and resolving ambiguities, the
court should look to the underlying policy of this Part
as stated in the Introductory Commentary.
11
U.S.S.G. Ch. 3, Pt. D, intro. comment:
Some offense guidelines, such as those for theft, fraud
and drug offenses, contain provisions that deal with
repetitive or ongoing behavior. Other guidelines, such
as those for assault and robbery, are oriented more
toward single episodes of criminal behavior.
Accordingly, different rules are required for dealing
with multiple-count convictions involving these two
different general classes of offenses.
12
See United States v. Beard, 960 F.2d 965, 969 (11th
Cir.1992).
13
920 F.2d 1290 (6th Cir.1990), appeal after remand, 978
F.2d 1260 (6th Cir.1992), cert. denied, 508 U.S. 919, 113 S.Ct.
2365, 124 L.Ed.2d 272 (1993).
14
Id. at 1293.
refused to group the counts.15 The Sixth Circuit vacated, holding
that grouping under § 3D1.2(b) was required because the separate
16
acts created a single "harm." The court reasoned that the
defendant's wife was "the victim of all six acts and the six acts
involved the same objective: her death."17
In United States v. Norman,18 the defendant pled guilty to
making two false reports over a two-day period to an airline
claiming that his ex-wife's suitor was aboard a plane carrying a
firearm and explosives. After the third false report, airport
security officers located the suitor, removed him from the airplane
in handcuffs, questioned him, and released him.19 The sentencing
court refused to group the counts.20 The Tenth Circuit vacated,
holding that the counts should have been grouped under § 3D1.2(b).
Relying on Wilson, the court determined that the scheme had only
one course of conduct (making false reports to the airline); only
one criminal objective (to harm the suitor); and only one
composite harm to one victim (subjecting the suitor to arrest).21
In United States v. Miller,22 the defendant mailed threatening
15
Id.
16
Id. at 1294.
17
Id.
18
951 F.2d 1182 (10th Cir.1991).
19
Id. at 1183.
20
Id.
21
Id. at 1186.
22
993 F.2d 16 (2nd Cir.1993).
23
letters to the victim over a four-month period. The Second
Circuit affirmed the refusal to group the counts under § 3D1.2(b),
reasoning that, although the letters were arguably part of a common
scheme of harassment, the sentencing court properly found that each
letter inflicted separate psychological harm.24
The circumstances in Wilson and Norman are distinguishable
from this case. In Wilson, each telephone call, a legally separate
crime in itself, was part of a single course of conduct leading up
to the end result or single objective and one composite harm: the
hiring of someone to kill the defendant's wife. Similarly, in
Norman, each false report, again a crime in itself, was a single
course of conduct leading up to the single criminal objective and
one composite harm: the arrest of the victim. Accordingly, in
Wilson and Norman, once the single purpose of each scheme and one
harm—the hiring of someone to kill the defendant's wife and the
arrest of the suitor of the defendant's wife—were accomplished, the
schemes terminated. However, in the present case, there were
multiple purposes and harms because the defendant did not terminate
his scheme after he harassed the victim with the first telephone
call. Also in Wilson and Norman, the defendants never had any
contact with the victims of the scheme, but rather only
third-parties. Therefore, in Wilson and Norman, unlike the present
case, the defendants never created multiple, separate instances of
fear in the victims of those schemes.
The situation in this case appears similar to the situation in
23
Id. at 19, 21.
24
Id. at 21.
Miller. In Miller, as in this case, each separate threatening
communication, a crime in itself, had a single purpose or objective
and inflicted one composite harm: to harass the victim. The
scheme in Miller, as in this case, had multiple purposes and harms
because the defendant did not terminate his scheme after he
harassed the victim with the first threatening communication.
Therefore, although the threatening communications were arguably
part of a common overall scheme of harassment, the victim in this
case suffered separate and distinct instances of fear and
psychological harm with each separate threatening communication.
The district court properly refused to group the twenty counts
under § 3D1.2(b).
B. Crime of Violence
The defendant argues that making a threatening telephone call
is not a "crime of violence," a Grade A violation, but rather a
Grade B violation. He contends that, under United States v.
Philibert,25 making threats does not constitute a "crime of
violence." He also maintains that his conduct was non-violent
because he only harassed the victim and never attempted to
accomplish his threats.
When an individual on supervised release commits a Grade A or
B violation, the court must revoke supervised release, and use the
sentencing table in § 7B1.4 to determine the applicable range of
imprisonment.26
25
947 F.2d 1467 (11th Cir.1991).
26
U.S.S.G. § 7B1.3. Revocation of Probation or Supervised
Release (Policy Statement).
A "Grade A" violation is defined as "conduct constituting a
federal, state, or local offense punishable by a term of
imprisonment exceeding one year that is a crime of violence."27 The
term "crime of violence" as used in § 4B1.1 and defined in § 4B1.2
is the applicable definition.28 Under § 4B1.2(1), "the term "crime
of violence' means any offense under federal or state law
punishable by imprisonment for a term exceeding one year that has
as an element the use, attempted use, or threatened use of physical
force against the person of another."29 A "Grade B" violation is
defined as "conduct constituting any other federal, state, or local
offense punishable by a term of imprisonment exceeding one year."30
In United States v. Russell,31 this court relied on the § 4B1.2
definition and held that armed robbery was a crime of violence
(a)(1) Upon a finding of a Grade A or B violation, the
court shall revoke probation or supervised
release.
(b) In the case of a revocation of probation or
supervised release, the applicable range of
imprisonment is that set forth in § 7B1.4 (Term of
Imprisonment).
27
U.S.S.G. § 7B1.1(a)(1)(i).
28
U.S.S.G. § 7B1.1, comment. (n. 2):
Application Notes:
2. "Crime of violence" is defined in § 4B1.2
(Definitions of Terms Used in Section 4B1.1). See
§ 4B1.2(1) and Application Notes 1 and 2 of the
Commentary to § 4B1.2.
29
U.S.S.G. § 4B1.2(1).
30
U.S.S.G. § 7B1.1(a)(2).
31
917 F.2d 512, 517 (11th Cir.1990), cert. denied, 499 U.S.
953, 111 S.Ct. 1427, 113 L.Ed.2d 479 (1991).
because the use or threatened use of force was an element of the
crime, and a departure under § 5K2.13 (departure for diminished
capacity if non-violent offense is committed) was not allowed. In
Philibert,32 however, this court determined that Philibert's
threatening telephone call was a "non-violent crime" and a downward
departure was available under U.S.S.G. § 5K2.13. In United States
v. Dailey,33 Dailey was convicted of interstate travel with intent
to carry out extortion. The sentencing court departed downward
based on diminished capacity, and the government appealed, arguing
that a downward departure was not available because Dailey was
34
convicted of a crime of violence. This court vacated and
remanded, holding that a departure based on diminished mental
capacity was not available because Dailey was convicted of a crime
of violence. The panel, recognizing the conflict between Russell
and Philibert, determined that Russell was controlling law.35
At sentencing, the defendant did not dispute the fact that he
threatened to use physical violence against the victim. Because
the use or threatened use of force is an element of the crime and
he threatened to use violence, making a threatening telephone call
32
947 F.2d at 1471.
33
24 F.3d 1323, 1327 (11th Cir.1994).
34
Id. at 1324.
35
Id. at 1327. The defendant also refers us to United
States v. Barbour, 70 F.3d 580, 587 (11th Cir.1995), cert.
denied, --- U.S. ----, 116 S.Ct. 1445, 134 L.Ed.2d 565 (1996),
which cited Philibert. However, the issue in Barbour involved an
enhancement under U.S.S.G. § 2A6.1(b)(1). The Barbour court held
that, under Philibert, there must be an evidentiary basis showing
that the defendant's conduct evidenced an intent to carry out the
threat to justify enhancement. There was no such enhancement in
this case.
is a crime of violence under § 4B1.2. Therefore, the district
court did not err in finding that the defendant committed a Grade
A violation of his supervised release.
CONCLUSION
For the reasons stated above, the defendant's convictions and
sentences are AFFIRMED.
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