United States v. Roger v. Evans

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEB 16, 2007
No. 05-14498 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 04-00059-CR-MCR

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROGER V. EVANS,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Florida
_________________________

(February 16, 2007)

Before DUBINA and WILSON, Circuit Judges, and CORRIGAN,* District Judge.

WILSON, Circuit Judge:

Roger V. Evans (“Evans”) appeals his conviction and life sentence upon a

*
Honorable Timothy J. Corrigan, United States District Judge for the Middle District of
Florida, sitting by designation.
guilty plea for (1) threatening to use a weapon of mass destruction against federal

government property in violation of 18 U.S.C. § 2332a(a)(3); (2) mailing a

threatening communication in violation of 18 U.S.C. § 876(c); and (3) interfering

with a federal officer in violation of 18 U.S.C. § 111(a). Prior to his plea, the

government filed an enhancement information under 18 U.S.C. § 3559, seeking

mandatory life imprisonment in connection with the first count, threatening

government property with a weapon of mass destruction in violation of §

2332a(a)(3).1 Evans’ lawyer withdrew at the sentencing hearing, and the district

court allowed Evans to proceed without counsel. The district court sentenced

Evans concurrently to life on the first count (threatening government property with

a weapon of mass destruction), 120 months on the second count (mailing a

threatening communication), and 96 months on the third count (interfering with a

federal officer), to be served consecutively to his pre-existing state sentence and

followed by five years of supervised release.2 Evans now challenges the district

court’s acceptance of his guilty plea, the district court’s decision to allow him to

1
The government admits that, while it could have, it did not seek a sentencing
enhancement in connection with the second count, mailing a threatening communication in
violation of § 876(c). Because the defendant was not notified of the possibility of such an
enhancement at his plea hearing and the district court did not impose an enhanced sentence for
that count, we do not discuss whether the conduct charged in the second count would qualify
under § 3559.
2
The district court also imposed a $300 special monetary assessment and ordered Evans
to pay $827.50 in restitution.

2
represent himself at sentencing, and the district court’s application of the

sentencing enhancement. We affirm Evans’ conviction, but vacate his sentence as

to the first count. The district court improperly applied the enhancement statute

because the charged conduct––i.e., threatening to use a weapon of mass destruction

against federal government property––does not constitute a “serious violent

felony” within the meaning of § 3559(c)(2)(F).

I. Background

In April 2004, Evans mailed a letter to the federal courthouse in Pensacola,

Florida, addressed to the Clerk of the United States District Court. The letter,

entitled “Affidavit in Support of Anthrax Scare,” referenced anthrax three times

and contained a harmless powder that resembled anthrax. The receipt of Evans’

letter disrupted both the Clerk’s Office and the U.S. Marshals’ Office. Several

employees were isolated for up to ten hours, including two Clerk’s Office

employees who went to the hospital and had their blood drawn to confirm they

were not exposed to anything dangerous. Evans, who was already serving a state

sentence in excess of 100 years, had sent the anthrax hoax with the goal of being

transferred to a federal prison.

A. Plea Hearing

In December 2004, Evans pled guilty to all counts. At the plea hearing, the

3
district judge read Evans the indictment.3 Evans testified that he understood the

three charges, had read his plea agreement, and had gone over the agreement with

his attorney. The judge explained the possible penalties for the charges, including

the enhancement.4 Evans indicated that he understood the sentencing implications

and reserved his right to challenge the applicability of the enhancement. The judge

questioned Evans about the factual basis of his plea. She asked him why he was

pleading guilty and to describe what he had done. Evans testified, “I did it.” He

later explained, “I wrote the letter and sent it to the courts.” Evans also admitted

3
The indictment charged Evans with:
(1) “intentionally and knowingly threaten[ing] to use a weapon or weapons of mass
destruction, namely anthrax, against property that is owned, leased or used by the United States
or by a department or agency of the United States, that is, United States District Court Clerk’s
Office,” 18 U.S.C. § 2332a(a)(3);
(2) “knowingly caus[ing] to be delivered by the United States Postal Service a written
communication, addressed to the Clerk of the Court, U.S. District Court, . . . Pensacola, FL . . . ,
which contained a threat to injure the person of the addressee or another, specifically President
George W. Bush, Florida Governor Jeb Bush, and the personnel within the United States District
Court Clerk’s Office, Pensacola, Florida,” 18 U.S.C. § 876(c); and
(3) “knowingly and forcibly assault[ing], resist[ing], oppos[ing], imped[ing],
intimidat[ing], and interfer[ing] with [a] Deputy United States Marshal . . . , while she was
engaged in or on account of the performance of her official duties,” 18 U.S.C. § 111(a).
4
The government filed a § 3559(c) enhancement information, seeking life imprisonment,
under the first count of the indictment only. The enhancement statute mandates life
imprisonment for certain violent felons. In this case, the government alleged that Evans had
been convicted of two or more “serious violent felonies.” Section 3559(c) defines a “serious
violent felony,” in pertinent part, as:
any . . . offense punishable by a maximum term of imprisonment of 10 years or
more that has as an element the use, attempted use, or threatened use of physical
force against the person of another or that, by its nature, involves a substantial
risk that physical force against the person of another may be used in the course of
committing the offense . . . .
18 U.S.C. § 3559(c)(2)(F)(ii).

4
that he placed the powder in the envelope and that, although not his intention, he

had threatened the Clerk’s Office employees. After the prosecutor read the

elements of the first count, the court further inquired into Evans’ intent by asking,

“Do you agree with me, sir, that what you did was intentionally threaten?” Evans

replied, “Yes, ma’am. That’s what the law says.” The court also addressed Evans

regarding the elements of the third count (interfering with a federal officer). The

court concluded that there was a sufficient factual basis to support a guilty plea on

all three counts.

B. Sentencing

Despite the judge’s determination at the plea hearing, the court later asked

the parties to brief whether there was a factual basis to support a conviction under

§ 2332a(a)(3) for threatening to use a weapon of mass destruction against federal

government property. The court questioned whether anthrax could be a threat

against property as opposed to against a person. The court further questioned the

application of the § 3559(c) enhancement to an offense against a building rather

than against a person.

After the issues had been briefed, Evans’ attorney moved to withdraw. The

court took up the motion at Evans’ sentencing hearing. At the beginning of the

hearing, Evans’ attorney explained that he had received threatening letters from

5
Evans and Evans had indicated an intent to commit further crimes. The

government opposed counsel’s motion to withdraw, arguing that current counsel

was in the best position to understand the sentencing arguments and delay would

only increase Evans’ time in federal custody. Evans addressed the court and stated

that he did not want his current counsel to represent him, did not want delay, and

wanted to proceed with his sentencing without the help of an attorney.

The court explained to Evans that if he wished to waive his Sixth

Amendment right to counsel the court had to ensure that he was informed of the

consequences of that decision. Upon questioning, Evans indicated that he

understood that (1) he had a right to counsel, appointed if necessary, at all stages;

(2) his sentencing might involve law and procedural issues best handled by an

attorney; and (3) he could face a potential life sentence and be required to serve his

state sentence before his federal sentence. The court also inquired into Evans’

knowledge of the law. Evans characterized himself as “basically a paralegal”

because he knew how to file motions to “get people back in courts” and how to do

legal research into state law. He admitted that he had no formal legal education but

testified that he was trained by other inmates and paralegals. The court reiterated

that the sentencing hearing could be continued and new counsel appointed, but

Evans responded, “I wish not that. I wish to go ahead and get it over with now.”

6
The court inquired into whether Evans was taking any medication at the time and

whether his decision was completely voluntary. The court then allowed Evans to

represent himself.

The court concluded that § 2332a did not require a future threat and that,

although no case law was directly on point, a letter threatening to use a weapon of

mass destruction against government property would include threats to those

within that building as well. The court found Evans’ plea valid. With respect to §

3559(c), the court determined that the enhancement did apply to mailing a letter

containing a threat of anthrax given the nature of anthrax, the panic associated with

such a threat, and the potential for physical harm as a result.

II. Analysis

First, we examine whether there was a sufficient factual basis for Evans’

guilty plea as to the first and second counts of the indictment. Next, we ask

whether the district court conducted a sufficient inquiry under Faretta v.

California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), to allow Evans

to represent himself at sentencing. Finally, we evaluate the application of the §

3559(c) enhancement to a conviction under § 2332a(a)(3) for threatening to use a

weapon of mass destruction against federal government property.

A. Factual Basis for Counts One and Two

7
 Evans alleges both a due process violation and a Rule 11 violation based on

the district court’s acceptance of his guilty plea for threatening to use a weapon of

mass destruction against federal government property (Count One) and mailing a

threatening communication (Count Two). See U.S. Const. amend. V; Fed. R.

Crim. P. 11.

1. Standard of Review

We review Evans’ claim that there was an insufficient factual basis for his

guilty plea as to Counts One and Two for plain error because Evans did not raise

his due process argument or object to a Rule 11 violation in the district court. See

United States v. Moriarty, 429 F.3d 1012, 1018-19 (11th Cir. 2005) (per curiam)

(applying plain error standard where the defendant failed to raise constitutional and

Rule 11 claims below).

To establish plain error, a defendant must show there is (1) error, (2)
that is plain, and (3) that affects substantial rights. If all three conditions are met,
we may exercise our discretion to recognize a forfeited error, but only if the error
seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings. Under plain error review, the defendant bears the burden of
persuasion with respect to prejudice or the effect on substantial rights. When
neither the Supreme Court nor this Court has resolved an issue, and other circuits
are split on it, there can be no plain error in regard to that issue.

Id. at 1019 (internal quotations and citations omitted) (alteration in original).

Furthermore, “a defendant who seeks reversal of his conviction after a guilty plea,

on the ground that the district court committed plain error under Rule 11, must

8
show a reasonable probability that, but for the error, he would not have entered the

plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S. Ct. 2333, 2340,

159 L. Ed. 2d 157 (2004).

2. Due Process

Evans argues that the district court misinterpreted the requirements of 18

U.S.C. § 2332a and 18 U.S.C. § 876(c). Evans asserts that, because of the court’s

misinterpretation, he did not understand the statutory elements to which he was

pleading guilty. Consequently, he contends that his plea was “unintelligent.”

The dispute centers on whether the “threatens to use” language of § 2332a5

and “threat to injure” language of § 876(c) 6 includes only future threats, as Evans

posits, or whether it also includes immediate threats of harm. While this Court has

5
Section 2332a states, in pertinent part:
A person who, without lawful authority, uses, threatens, or attempts or conspires
to use, a weapon of mass destruction . . . against any property that is owned,
leased or used by the United States or by any department or agency of the United
States . . . shall be imprisoned for any term of years or for life . . . .
18 U.S.C. § 2332a(a)(3) (emphasis added).
6
Section 876 states, in pertinent part:
Whoever knowingly so deposits or causes to be delivered [by the United States
Postal Service] any communication with or without a name or designating mark
subscribed thereto, addressed to any other person and containing any threat to
kidnap any person or any threat to injure the person of the addressee or of
another, shall be fined under this title or imprisoned not more than five years, or
both. If such a communication is addressed to a United States judge, a Federal
law enforcement officer, or [certain other federal officers or employees], the
individual shall be fined under this title, imprisoned not more than 10 years, or
both.
18 U.S.C. § 876(c) (emphasis added).

9
not specifically addressed the language of these two statutes, the Second, Third,

and Fifth Circuits have looked at the issue, and all three found that a future threat is

not necessary. See United States v. Davila, 461 F.3d 298, 304 (2d Cir. 2006)

(holding that neither § 2332a nor § 876 requires a threat of future action); United

States v. Zavrel, 384 F.3d 130, 136 (3d Cir. 2004) (expressing agreement with the

district court’s jury instruction that § 876 included both a future and a current

intent to inflict injury); United States v. Reynolds, 381 F.3d 404, 406 (5th Cir.

2004) (holding that a threat under § 2332a does not require reference to a future

act). We agree with our sister circuits that the language in these statutes simply

does not suggest a temporal limitation to only future actions. Therefore, we find

no error in the district court’s interpretation of § 2332a and § 876(c). Furthermore,

even if the district court did misinterpret the statutes, the district court’s error

would not be plain. See United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th

Cir. 2003) (per curiam) (“[W]here the explicit language of a statute or rule does not

specifically resolve an issue, there can be no plain error where there is no

precedent from the Supreme Court or this Court directly resolving it.”).

3. Rule 11

Because we find that the district court did not plainly misinterpret the

statutes at issue, Evans is unable to establish a reasonable probability that, but for

10
the alleged error, he would not have entered his plea. Rule 11 requires the court to

ensure that the defendant understands the charges and the consequences of the plea

and that the defendant has not been coerced into the plea. See Fed. R. Crim. P. 11.

Evans asserts that if the court itself was confused about the elements of the

charges, Evans could not possibly have understood the elements either. We find

no error in the court’s understanding of the elements of the charges, and from our

review of the record, Evans seems to have knowingly and voluntarily entered his

plea. Thus, we find no Rule 11 violation.

Accordingly, we affirm the district court’s acceptance of Evans’ guilty plea

at to Counts One and Two because there was a sufficient factual basis to support

his conviction.7

B. Evans’ Self-Representation at Sentencing

Next, Evans asserts that his Sixth Amendment right to counsel was violated

when the district court failed to conduct a sufficient inquiry to ensure that he was

capable of representing himself at sentencing and comprehended the risks of self-

representation.

1. Standard of Review

7
To the extent that Evans argues that his conduct did not meet the elements of the
charges, he waived this argument with his plea. See United States v. Viscome, 144 F.3d 1365,
1370 (11th Cir. 1998) (explaining that a guilty plea results in a waiver of all non-jurisdictional
defects and a sufficiency of the evidence challenge is non-jurisdictional).

11
 Whether Evans validly waived his right to counsel at his sentencing is a

mixed question of law and fact, which we review de novo. United States v. Cash,

47 F.3d 1083, 1088 (11th Cir. 1995). “On direct appeal, the government bears the

burden of proving the validity of the waiver.” Id.

2. Faretta Inquiry

A criminal defendant has a constitutional right to represent himself “when he

knowingly, voluntarily, and intelligently elects to do so.” Id. For a waiver of the

Sixth Amendment right to be valid, the defendant “must clearly and unequivocally

assert [his] right of self-representation.” Fitzpatrick v. Wainwright, 800 F.2d 1057,

1064 (11th Cir. 1986). Before the court grants the defendant’s request, the court

must make the defendant “aware of the dangers and disadvantages of self-

representation, so that the record will establish that he knows what he is doing and

his decision is made with his eyes open.” Faretta, 422 U.S. at 835, 95 S. Ct. at

2541 (internal quotation marks omitted).

To determine whether Evans’ waiver was knowing and intelligent, we look

to “the particular facts and circumstances of [his] case, including [his] background,

experience, and conduct.” Fitzpatrick, 800 F.2d at 1065. In Fitzpatrick, we

identified various factors that aid us in our analysis of the validity of the

12
defendant’s Sixth Amendment waiver.8 Id. at 1065-67. The government argues,

and we agree, that the Fitzpatrick factors support the district court’s finding that

Evans validly waived his right to counsel at his sentencing hearing. The district

court adequately warned Evans of the dangers of self-representation and reiterated

that it would appoint a new attorney for sentencing purposes if Evans so desired.

Evans unequivocally stated that he did not want an attorney to represent him at the

hearing. The exchange between Evans and the district judge makes it clear that the

court conducted a sufficient inquiry under Faretta to allow Evans to represent

himself at sentencing. In sum, Evans made the decision to waive his right to

counsel “with his eyes open.” See Faretta 806 U.S. at 835, 95 S. Ct. at 2541.

Consequently, we affirm the district court on this issue.

C. Section 3559(c) Enhancement

Lastly, Evans argues that the § 3559(c) enhancement does not properly

apply to his conviction under § 2332a(a)(3). This issue requires us to engage in an

exercise of statutory interpretation. Because we find that an anthrax threat to a

8
These factors include the defendant’s (1) age, education, and mental/physical health; (2)
prior contact with an attorney in preparation for the proceeding at issue; (3) knowledge of the
nature of the charges and possible defenses and penalties; (4) knowledge of the rules of
procedure, evidence, and courtroom decorum; (5) previous experience with criminal trials; and
(6) access to appointed, stand-by counsel. Fitzpatrick, 800 F.2d at 1065-67. We also look at (7)
“whether the exchange between the defendant and the court consisted merely of pro forma
answers to pro forma questions”; (8) “whether the waiver was a result of coercion or
mistreatment of the defendant ”; and (9) “whether the defendant was attempting to delay or
manipulate the proceedings.” Id. at 1067.

13
federal building does not “by its nature, involve[] a substantial risk that physical

force against the person of another may be used in the course of committing the

offense,” § 3559(c)(2)(F)(ii), we conclude that the district court erred in applying

the enhancement under the first count of the indictment.

1. Standard of Review

Whether a violation of § 2332a(a)(3) qualifies as a serious violent felony for

purposes of a sentencing enhancement under § 3559(c) is a question of statutory

construction, which we review de novo. See United States v. Johnson, 399 F.3d

1297, 1298 (11th Cir. 2005) (per curiam).

2. Serious Violent Felony Within the Meaning of § 3559(c)(2)(F)

Section 3559(c) mandates a life sentence for certain violent felons:

Notwithstanding any other provision of law, a person who is
convicted in a court of the United States of a serious violent felony
shall be sentenced to life imprisonment if . . . the person has been
convicted (and those convictions have become final) on separate prior
occasions in a court of the United States or of a State of . . . 2 or more
serious violent felonies . . . .

§ 3559(c)(1)(A)(i).

Evans does not dispute that he has two prior convictions which constitute

serious violent felonies for purposes of § 3559(c); however, he asserts that his

current conviction under § 2332a(a)(3) does not meet the definition of a serious

violent felony set forth in § 3559(c)(2)(F).

14
 The statute explains that:

the term “serious violent felony” means––
(i) a Federal or State offense, by whatever designation and
wherever committed, consisting of murder . . . ; manslaughter other
than involuntary manslaughter . . . ; assault with intent to commit
murder . . . ; assault with intent to commit rape; aggravated sexual
abuse and sexual abuse . . . ; abusive sexual contact . . . ; kidnapping;
aircraft piracy . . . ; robbery . . . ; carjacking . . . ; extortion; arson;
firearms use; firearms possession [in connection with a crime of
violence or a drug trafficking crime]; or attempt, conspiracy, or
solicitation to commit any of the above offenses; and
(ii) any other offense punishable by a maximum term of
imprisonment of 10 years or more that has as an element the use,
attempted use, or threatened use of physical force against the person
of another or that, by its nature, involves a substantial risk that
physical force against the person of another may be used in the course
of committing the offense . . . .

§ 3559(c)(2)(F).

Evans was convicted under § 2332a(a)(3) for threatening to use a weapon of

mass destruction against federal property. Notably, the government charged Evans

under subsection (a)(3) for threatening property, and not under subsection (a)(2),

which covers threats to a person. During sentencing, the court did not definitively

state under which subpart of § 3559(c)(2)(F) she thought Evans’ conviction fit.

Subpart (F)(i) enumerates a series of felonies and cross-references the applicable

U.S. Code sections. Subpart (F)(ii), however, is more open-ended in its definition.

The government concedes, and we agree, that § 3559(c)(2)(F)(i) does not

encompass threatening to use a weapon of mass destruction against federal

15
property, given that this crime does not appear in the list of applicable offenses.

The first half of subpart (F)(ii) does not apply in this case either because the

offense to which Evans pled guilty does not have “as an element the use, attempted

use, or threatened use of physical force against the person of another.” §

3559(c)(2)(F)(ii) (emphasis added). Under the offense charged, the only force

threatened was against property, not against a person.9 See § 2332a(a)(3).

Consequently, we focus on the second half of subpart (F)(ii) and decide whether

threatening to use a weapon of mass destruction against federal property “by its

nature, involves a substantial risk that physical force against the person of another

may be used in the course of committing the offense.” § 3559(c)(2)(F)(ii).

Because the risk of physical harm presented by threatening a federal building with

anthrax is “not the natural outcome of an illegal use of force,” Johnson, 399 F.3d at

1301 (discussing Leocal v. Ashcroft, 543 U.S. 1, 125 S. Ct. 377, 160 L. Ed. 2d 271

(2004)), we hold that threatening to use a weapon of mass destruction against

federal property is not a “serious violent felony” within in the meaning of §

3559(c)(2)(F).

9
If the government had charged Evans under § 2332a(a)(2) for threatening to use a
weapon of mass destruction against a person and the district court had accepted his guilty plea to
that charge, then the conviction would have qualified as a “serious violent felony” under the first
half of § 3559(c)(2)(F)(ii). The government, however, chose to charge Evans under a different
subsection.

16
 In making this determination, we consider the extent to which the charged

conduct10 poses a risk that physical force against another person may be used in the

course of committing the offense. The government presents two examples of

physical force which may result as a consequence of threatening a federal building

with anthrax: (1) arterial blood draws which medical personnel may perform on

potentially exposed employees and (2) general physical force that law enforcement

officers may employ in an effort “to evacuate and secure the property and/or catch

the person who made the threat.” Appellee’s Br. at 52. These examples, however,

do not account for the statutory requirement that the physical force against another

person “be used in the course of committing the offense.” § 3559(c)(2)(F)(ii)

(emphasis added). We acknowledge that there is some risk that a threat against a

federal building may result in a person using some amount of physical force

against another person at some point after the threat is communicated. If we were

to follow the logic of the government, however, virtually every crime punishable

by a maximum term of 10 years or more would qualify as a serious violent felony

under § 3559(c)(2)(F)(ii) because there is always some risk that the police will use

physical force on another while trying to “catch” a suspected criminal. The

language of the statute, which requires that the offense “by its nature, involve[] a

10
See supra note 3 (first count).

17
substantial risk that physical force against the person of another may be used in the

course of committing the offense,” does not allow for such a reading of the term

“serious violent felony.” Id. (emphasis added).

We find support for this approach in the Supreme Court’s analysis in Leocal,

543 U.S. 1, 125 S. Ct. 377. In that case, the Supreme Court determined that

driving under the influence of alcohol (“DUI”) and causing serious bodily injury in

an accident, in violation of Florida law, is not a “crime of violence” within the

meaning of 18 U.S.C. § 16. Id. at 10, 125 S. Ct. at 382. Under the Immigration

and Nationality Act, an alien may be deported if he is convicted of an aggravated

felony, which includes certain “crimes of violence” as defined in § 16. In Leocal,

the Supreme Court considered whether DUI properly fits into the category of

offenses described in § 16(b)––i.e., “any other offense that is a felony and that, by

its nature, involves a substantial risk that physical force against the person or

property of another may be used in the course of committing the offense.” Cf. §

3559(c)(2)(F)(ii) (using virtually identical language to define a serious violent

felony).11 The Court explained that § 16(b) “simply covers offenses that naturally

involve a person acting in disregard of the risk that physical force might be used

against another in committing an offense.” Leocal, 543 U.S. at 10, 125 S. Ct. at

11
Notably, § 3559(c)(2)(F)(ii) does not include the phrase “or property.”

18
383 (emphasis added).

The Leocal Court emphasized that “[t]he ‘substantial risk’ in § 16(b) relates

to the use of force, not to the possible effect of a person’s conduct.” Id. at 10 n.7,

125 S. Ct. at 383 n.7. The Court then compared the language of § 16(b) to the

language of U.S.S.G. § 4B1.2(a)(2), which defines a “crime of violence” under the

career offender provision of the U.S. Sentencing Guidelines.12 Id. The Court

concluded: Ҥ 16(b) plainly does not encompass all offenses which create a

‘substantial risk’ that injury will result from a person’s conduct.” Id. “Therefore,

while driving under the influence created a risk of injury to others, it could not be

12
The career offender provision of the Sentencing Guidelines defines a “crime of
violence,” in pertinent part, as “any offense . . . that . . . involves conduct that presents a serious
potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2). Despite their similarities, §
16 and, by extension, § 3559, are not co-extensive with the guideline. See Leocal, 543 U.S. at 10
n.7, 125 S. Ct. at 383 n.7 (comparing U.S.S.G. § 4B1.2 to 18 U.S.C. § 16(b)). First, U.S.S.G. §
4B1.2(a)(2) does not contain the same temporal limitation (“in the course of committing the
offense”) that the statutory provisions do. Second, U.S.S.G. § 4B1.2(a)(2) discusses the serious
potential risk of physical injury, whereas § 3559(c)(2)(F)(ii) and § 16(b) require an inherent and
substantial risk of physical force. In sum, § 3559(c)(2)(F)(ii) and § 16(b) cover a narrower
category of offenses than U.S.S.G. § 4B1.2(a)(2).
Previously, we made broad generalizations such as “[t]here is no meaningful distinction
between the language of the career offender guideline . . . and the language of § 3559 [and §
16(b)].” United States v. Abraham, 386 F.3d 1033, 1038 (11th Cir. 2004) (per curiam); see also
United States v. Ivory, No. 06-10895, slip op. at 12 (11th Cir. Jan. 17, 2007) (per curiam); United
States v. Searcy, 418 F.3d 1193, 1197 (11th Cir. 2005); United States v. Rutherford, 175 F.3d
899, 905 (11th Cir. 1999). A careful review of our case law and recent Supreme Court
precedent, however, demonstrates that the offenses which § 3559(c)(2)(F)(ii) and § 16(b) cover
are a subset of the offenses which U.S.S.G. § 4B1.2(a) covers. In other words, it is proper to
argue cases under § 3559 or § 16 to prove cases under U.S.S.G. § 4B1.2, because every offense
that qualifies under either of those two statutes will also qualify under the guideline, but the
reverse tactic is not always appropriate. Accordingly, prior decisions regarding U.S.S.G. §
4B1.2 are not dispositive in this case.

19
characterized as a ‘crime of violence’ because any such risk was not the natural

outcome of an illegal use of force.” Johnson, 399 F.3d at 1301 (discussing

Leocal).

We have previously stated that “[t]he teaching of Leocal requires us to ask

whether the offense . . . categorically presents a substantial risk of violence [or

physical force].” Id. at 1302. In Johnson, for example, we examined whether

simple possession of a firearm by a felon fell under § 3156(a)(4)(B), which defines

a “crime of violence” as “any other offense that is a felony and that, by its nature,

involves a substantial risk that physical force against the person or property of

another may be used in the course of committing the offense.”13 We concluded

that “the connection between any possible risk created and the simple possession of

a firearm by a felon is simply too attenuated to meet the definition set forth in §

3156(a)(4)(B).” Id. Similarly, any risk of force created by threatening a federal

building with anthrax––e.g., arterial blood draws or general force used to evacuate

and secure the building––is simply too attenuated to meet the definition of a

serious violent felony set forth in § 3559(c)(2)(F)(ii). Because threatening a

federal building with anthrax is not an offense “that, by its nature, involves a

substantial risk that physical force against the person of another may be used in the

13
We note that § 3156(a)(4)(B) uses language identical to 18 U.S.C. § 16(b). See supra
note 11 and accompanying text.

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course of committing the offense,” § 3559(c)(2)(F)(ii) (emphasis added), the

district court erred in finding that Evans’ conviction under § 2332a(a)(3)

constituted a serious violent felony for purposes of imposing a minimum

mandatory life sentence.

We note, incidentally, that in 2004 (after Evans was indicted), Congress

passed a statute entitled “False information and hoaxes,” which specifically

criminalizes the conduct at issue in this case––sending an anthrax hoax letter.14

See 18 U.S.C. § 1038. If neither serious bodily injury nor death occurs as a result

of the hoax, as was the case here, the maximum term of imprisonment under the

new statute would be five years. See § 1038(a)(1)(A). Consequently, a conviction

for sending an anthrax hoax letter under § 1038(a)(1)(A) would not qualify as a

serious violent felony for § 3559 enhancement purposes because it is not one of the

enumerated felonies in § 3559(c)(2)(F)(i) nor is it an “offense punishable by a

maximum term of imprisonment of 10 years or more,” § 3559(c)(2)(F)(ii). The

passage of § 1038 suggests that where serious bodily injury or death does not

14
The statute reads, in pertinent part:
Whoever engages in any conduct with intent to convey false or misleading
information under circumstances where such information may reasonably be
believed and where such information indicates that an activity has taken, is
taking, or will take place that would constitute a violation of [various U.S. Code
sections, including those criminalizing the use of biological, chemical, or nuclear
weapons,] shall be fined . . . or imprisoned not more than 5 years, or both [if
death or serious bodily injury does not result].
§ 1038(a)(1) (emphasis added).

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occur, Congress did not intend that a conviction for sending an anthrax hoax letter

could result in life imprisonment.

III. Conclusion

For the foregoing reasons, we affirm Evans’ conviction, but vacate his

sentence as to Count One and remand for resentencing because the district court

improperly applied the 18 U.S.C. § 3559 enhancement. A conviction under 18

U.S.C. § 2332a(a)(3) for threatening to use anthrax against federal property does

not qualify as a “serious violent felony” within the meaning of § 3559(c)(2)(F).

AFFIRMED, IN PART; VACATED AND REMANDED, IN PART.

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