[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-11146 SEPTEMBER 8, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 05-00181-CV-WTM-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TRACEY DUDLEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(September 8,2006)
Before DUBINA, CARNES and HULL, Circuit Judges.
PER CURIAM:
On the morning of March 15, 2005 Judge Louisa Abbot’s secretary, Angela
Bufalini, who routinely opens the chambers’ mail, let out a loud scream and
walked into Judge Abbot’s office covered in white powder. Ms. Bufalini explained
that it happened when she opened a letter. She went into the bathroom to try to
wash the substance off. Suspecting the white powder might be anthrax, the judge
asked Ms. Bufalini to notify the sheriff’s office. After washing her hands, the
secretary handed the letter to Judge Abbott’s primary deputy, Anthony Davis. The
sheriff’s office was notified, and Judge Abbot was told to leave the building.
The sheriff’s office placed Ms. Bufalini and Deputy Davis under quarantine
in her office. Judge Abbott went home. Ms. Bufalini called to let her know the
contents of the letter which reads:
The judicial system has been very unfair and cruel to
people like myself. You and your courtroom has
contributed to this unfairness for which I and my
relatives as well as my homies has suffered. What
happened to the judge in Atlanta was fair and just. He
received reward for handing down unjust sentences with
his racial ass. So I’m acting as a judge and is handing
down a just sentence on you. You’ve just been infected
and contaminated with anthrax bitch. If I ever get the
opportunity or appear in your courtroom I will definately
[sic] kill you, your deputies and anyone else who get in
my way and try to stop me. Until then you will die
slowly from anthrax. Die Bitch. May death visit you.
Death. Die bitch. Death.
Presentence Investigation Report ¶ 5 (quoting letter reproduced with errors). The
letter was not signed, but the envelope contained a return address indicating the
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sender was “Emmanuel Porter,” an inmate at Coastal State Prison.
Ms. Bufalini and Deputy Davis remained in quarantine for several hours
while the Savannah Fire Department hazardous materials unit tested the substance
to determine whether it was anthrax. While it was later determined that the white
powder was not anthrax, Judge Abbott remained at her home for approximately
three hours thinking that it was and that someone had intended to kill her. The
statement in the letter that “[w]hat happened to the judge in Atlanta was fair and
just” was an obvious reference to the murder of Superior Court Judge Rowland
Barnes who was killed in his Atlanta courtroom on March 11, 2005, just four days
before Judge Abbott received the threatening letter
The sheriff’s office called to inform Judge Abbott that she would be under
twenty-four hour guard and that she needed to inform her family of the incident.
Her fourteen-year-old daughter returned from school, and Judge Abbott told her
about the incident, instructed her not to go to the door, and said that she would
need to be accompanied by her father for the remainder of the day. At the
sentencing hearing Judge Abbott stated: “I remember the tears on my daughter’s
face as she had to accept the reality that there was someone out there in the world
who wanted to murder her mother.”
Later that day Judge Abbot returned to the courthouse. She was informed
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that the sheriff’s department was conducting an investigation and the Federal
Bureau of Investigation had been notified. She learned that half of the second floor
of the courthouse had been vacated and another judge’s chambers evacuated. She
also explained at sentencing that “[a]t that time this occurred there was a high-
profile murder case going on. Court TV was televising it. There were
extraordinary efforts to keep other people from knowing about this [letter] because
of the fear of causing a mistrial” in that case.
When Judge Abbott returned home she had police protection. She
explained: “Deputy Davis remained with me throughout that evening. He
accompanied me wherever I went. He checked out my house, my yard. We had no
idea whether or not this came from someone outside of the walls of a prison, or
inside the walls of a prison, or whether or not it came from a family member of
someone inside a prison. We had no idea. I was accompanied throughout the next
day. Ultimately it was determined that [the letter] did come from Coastal [State
Prison], and that I no longer needed to be required to have protection, but just to
continue to exercise caution.”
The substance in the envelope was analyzed by the Centers for Disease
Control in Atlanta, Georgia and the FBI’s forensic laboratory in Quantico,
Virginia, where it was determined that the envelope contained talcum powder. The
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FBI investigation revealed that the letter was not sent from Emmanuel Porter, but
instead was sent from Tracey Dudley who was also an inmate at Coastal. Dudley
admitted that he wrote Porter’s name in the return address line because he hoped
that sending the letter would induce Judge Abbott to arrange for Porter’s removal
from Coastal. That hope was not realized.
Instead, on July 14, 2005, Dudley was indicted with one count of mailing a
threatening communication in violation of 18 U.S.C. § 876(c). Dudley pleaded
guilty and entered into a written plea agreement with the government. The district
court sentenced him to 60 months imprisonment, and he now contends that the
district court erred at sentencing by: (1) enhancing his sentence pursuant to
U.S.S.G. § 2A6.1(b)(4) for substantially disrupting public or governmental
functions and (2) denying his request for a downward departure under U.S.S.G. §
5H1.4 based on his HIV-positive status.
I.
Dudley supports his first contention, that the district court erred in enhancing
his sentence under U.S.S.G. § 2A6.1(b)(4), with four arguments: (1) any disruption
of public or governmental functions that resulted from his threatening
communication was not “substantial”; (2) the enhancement constituted
impermissible double-counting as his offense was already enhanced for threatening
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a public official; (3) the district court improperly relied on hearsay at his
sentencing hearing; and (4) the enhancement violated his Sixth Amendment due
process rights under Booker and Apprendi.
A.
Dudley’s first argument with respect to § 2A6.1(b)(4) is that the interference
resulting from his letter was not a “substantial disruption.” We review the district
court’s application and interpretation of the sentencing guidelines de novo. United
States v. Norris, 452 F.3d 1275, 1280 (11th Cir. 2006).
Section 2A6.1(b)(4) of the guidelines provides that an offense level for
threatening or harassing communications may be enhanced if “the offense resulted
in (A) substantial disruption of public, governmental, or business functions or
services.” U.S.S.G. § 2A6.1(b)(4). No other circuit has addressed this specific
guideline enhancement in a published opinion, but some have addressed the
meaning of “substantial” in the context of interference with the administration of
justice under § 2J1.2(b)(2). See United States v. Leung, 360 F.3d 62, 67–68 (2d
Cir. 2004) (the cost of interviewing numerous witnesses where the defendant faked
his own death to avoid prosecution was substantial); United States v. Tankersley,
296 F.3d 620, 623 (7th Cir. 2002) (the cost associated with weeks of investigating
to find proceeds from the sale of a yacht and to uncover other assets was
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substantial); United States v. Alwan, 279 F.3d 431, 436–37, 440–41 (7th Cir.
2002) (the interference with administration of justice caused by defendant’s
continued refusal to testify before the grand was substantial); United States v.
Sinclair, 109 F.3d 1527, 1540 (10th Cir. 1997) (the interference with
administration of justice caused by forcing the reinterviewing and recalling of two
witnesses was substantial).
The dictionary defines “substantial” as “of ample or considerable amount,
quantity, size, etc.” Random House Unabridged Dictionary 1897 (2d ed. 1993). It
defines “disruption” as “forcible separation or division into parts” or “a disrupted
condition.” Id. at 569. The word “disruption” cross-references to “disrupt,” which
means “to cause disorder or turmoil in.” Id.
Dudley’s threatening letter resulted in closing half a floor of the state
courthouse for two hours and the suspension of judicial business involving Judge
Abbott for longer than that. The letter also resulted in an interruption of judicial
business involving Judge Penny Freesemann, whose chambers were located in the
same building. During that time, the hazardous materials unit responded to the
emergency and an officer and Judge Abbott’s secretary were placed under
quarantine while the FBI determined whether the white powder from the envelope
contained anthrax. In addition, the sheriff’s department had to place an officer on a
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24-hour security detail to protect Judge Abbott. Afterwards, she had to spend
many hours speaking with the F.B.I. and U.S. Attorney’s office about the case.
As the district court put it: “That seems pretty substantial to me.” The
disorder and turmoil caused by Dudley’s letter was, in the terms of the dictionary
definition, “of ample or considerable amount.” Judge Abbot and another judge in
the building were entirely prevented from doing their jobs for several hours on the
day the letter arrived, and Judge Abbot has been distracted from her work for many
hours since that time as a result of the letter. Not only that, but law enforcement
personnel were diverted from their other duties to provide around-the-clock
security for the judge.
B.
Dudley’s next argument regarding § 2A6.1(b)(4) is that it constitutes
impermissible double counting because he also received an enhancement under
U.S.S.G. § 3A1.2(b) that was based on the victim’s status as a judge. We review
de novo a claim of double counting. United States v. Perez, 366 F.3d 1178, 1183
(11th Cir. 2004). “Impermissible double counting occurs only when one part of
the Guidelines is applied to increase a defendant’s punishment on account of a kind
of harm that has already been fully accounted for by application of another part of
the Guidelines.” United States v. Rodriguez-Matos, 188 F.3d 1300, 1309 (11th
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Cir. 1999) (quotation marks and citation omitted). We presume that the Sentencing
Commission intended separate guidelines sections to apply cumulatively, “unless
specifically directed otherwise.” Id. at 1310 (emphasis omitted). “Double
counting a factor during sentencing is permitted if the Sentencing Commission . . .
intended that result and each guideline section in question concerns conceptually
separate notions relating to sentencing.” United States v. Stevenson, 68 F.3d 1292,
1294 (11th Cir. 1995).
Application of both enhancements in this case does not constitute
impermissible double counting. The harm resulting from the victim’s status as a
judge who was threatened which is accounted for under § 3A1.2(b) differs from the
harm resulting from the substantial disruption to government functions which is
accounted for under § 2A6.1(b)(4). The enhancement resulting from Judge
Abbott’s professional status flows from the need to protect judges from threats. As
Judge Abbot stated in her testimony: “The sanctity of the rule of law is what keeps
our civilization intact. When judges are murdered and are threatened with
violence, the fabric of our society is threatened. If people cannot come to
courthouses and feel that the laws will be enforced in a safe and secure
environment, our very freedoms are at great risk.” The harm at which the §
2A6.1(b)(4) substantial disruption enhancement is aimed is conceptually distinct
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from the harm that Dudley’s threat caused by preventing the judge from fulfilling
her duties for a period of time and also by diverting other officials and officers
from their other duties.
C.
Dudley’s third argument against application of § 2A6.1(b)(4) in this case is
that it was applied in violation of the Confrontation Clause because the district
court relied on hearsay testimony at sentencing. Because Dudley did not raise this
argument before the district court, we review it only for plain error. United States
v. Luciano, 414 F.3d 174, 178 (11th Cir. 2005). Under plain error review, there
must be (1) an error, (2) that is plain, and (3) affects substantial rights. United
States v. Olano, 507 U.S. 725, 730–32, 113 S. Ct. 1770, 1776 (1993). When these
three factors are met, we may exercise discretion and correct the error if it seriously
affects the fairness, integrity, or public reputation of the judicial proceedings. Id.
Dudley’s argument is foreclosed by our decision in United States v. Chau,
426 F.3d 1318, 1323 (11th Cir. 2005). There we held that a district court’s reliance
on hearsay testimony at a sentencing hearing is not plain error. Id. Chau controls.
If the district court did rely on hearsay testimony to enhance Dudley’s sentence, it
did not plainly err in doing so.
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D.
Dudley’s fourth argument against the § 2A6.1(b)(4) enhancement of his
sentence is that it violated his Sixth Amendment due process rights. Dudley argues
that his sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348
(2000), and United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), because
the enhancement was based on facts he did not admit. Because this argument is
raised for the first time on appeal, we review it only for plain error. United States
v. Simpson, 228 F.3d 1294, 1298 (11th Cir. 2000).
Dudley pleaded guilty to the offense of mailing a threatening
communication and was sentenced to the statutory maximum of five years for that
offense. Apprendi held that “[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at
490, 120 S. Ct. at 2362–2363. Here, Dudley was not sentenced beyond the
statutory maximum, so there is no Apprendi error.
Booker holds that “the Sixth Amendment right to trial by jury is violated
where under a mandatory guidelines system a sentence is increased because of an
enhancement based on facts found by the judge that were neither admitted by the
defendant nor found by the jury.” United States v. Rodriguez, 398 F.3d 1291,
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1298 (11th Cir. 2005), cert. denied, 125 S. Ct. 2935 (2005). After Booker, district
courts may still impose fact-based sentencing enhancements under an advisory
guidelines system without violating the Sixth Amendment. See id. at 1300.
In this case, the district court explicitly stated that it was sentencing Dudley
under an advisory guidelines system. As a result, any judicial fact-finding by the
district court did not violate the Sixth Amendment. There was no Booker error.
II.
Dudley’s final contention is that the district court erred in denying his §
5H1.4 motion for a downward departure based on his HIV status.
We lack jurisdiction to review a district court’s decision to deny a downward
departure unless the district court incorrectly believed that it lacked authority to
grant the departure. United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir.
2005). We have noted that “it would facilitate review if sentencing judges would
state on the record that they believe they have or do not have the authority to
depart,” United States v. Sanchez-Valencia, 148 F.3d 1273, 1274 (11th Cir. 1998),
but we have never said that such a statement is required. Instead, we have held that
“when nothing in the record indicates otherwise, we assume the sentencing court
understood it had authority to depart downward.” United States v. Chase, 174 F.3d
1193, 1195 (11th Cir. 1999).
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Nothing in the transcript of the sentencing proceedings indicates that the
district court thought that it lacked authority to depart downward; instead, the
transcript suggests that the court understood that it could depart, but chose not to
do so. We do not have jurisdiction to review the underlying merits of the request
for a departure.
AFFIRMED.
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