concurring in part and dissenting in part:
I concur in the majority opinion as it relates to the two-level enhancement of Spring’s offense level under § 2A6.1(b)(2) of the Sentencing Guidelines for making more than two threats. I respectfully dissent, however, with respect to Section III of the majority opinion and would affirm the district court’s upward departure. I think the notice in the pre-sentence report was adequate.
STAMP, District Judge,concurring in part and dissenting in part:
While I concur with the ruling expressed in Section III of the majority opinion regarding the lack of adequate notice leading to the district court’s upward departure, I respectfully dissent from the majority view that affirms the two-level enhancement of Spring’s offense level under U.S.S.G. § 2A6.1(b)(2) for the making of more than two threats, arrived at by including the statements made by Spring to three prison inmates, Wayne Alderman, Clarence Sargent and Michael Williams. These statements would include verbal comments made at different times by Spring to the three inmates, statements made on a typewriter ribbon or tape found by Sargent and typed by Spring, and statements written by Spring on the back of a prison form and found by Williams.
The record shows that none of these statements were communicated to Probation Officer Naber. While this Court has held in certain cases that a statement may constitute a threat even if it is not communicated, Judge Wilkins correctly notes that the majority opinion in this case does not “hold that the failure to communicate a threat to its intended victim is entirely irrelevant. In a particular case, whether the threat was communicated to the victim may affect whether the threat could reasonably be perceived as an expression of genuine intent to inflict injury.” I agree with that statement but dissent because I believe that under the particular facts in this case, a reasonable person would not conclude that Spring’s comments to his fellow inmates or the statements contained on the typewriter tape or the back of the prison form, although reprehensible, were expressions of genuine intent to inflict injury upon the intended victim. Here, there was no connection between the inmates and the intended victim. Further, there was no request by Spring, expressed or implied, that any inmate communicate, either directly or indirectly, the statements to the intended victim. See United States v. Bellrichard, 779 F.Supp. 454 (D.Minn.1991), aff'd, 994 F.2d 1318 (8th Cir.1993). Consequently, I do not believe that Spring’s statements to or found by the inmates can be construed to be “true threats” as required under Watts v. Unit*284ed States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969). Spring’s statements to the three inmates and the message on the tape or paper would not, in my opinion, cause a reasonable person to believe that they were conveyed to the inmates to effect some change or to achieve some goal through intimidation. See United States v. Alkhabaz, 104 F.3d 1492 (6th Cir.1997); United States v. Fenton, 30 F.Supp.2d 520 (W.D.Pa.1998). At least there is insufficient evidence of such intention in the record. J.A. 219-268. Indeed, there is no evidence that Spring intended that the tape or paper be seen by the inmates. Stated another way, Spring’s statements testified to by the three prison inmates differ dramatically from the statements contained in the letter from Spring addressed to “Jeff Nabers, U.S. Probation” and intercepted on May 22, 2000 by the Federal Bureau of Prisons’ personnel which letter was the basis of the three-count indictment against Spring and upon which he was convicted, and which statements were definitely true threats. J.A. 355-56.